The U.S. Supreme Court has given Fourth Amendment champions anxiously watching a pair of cases centered on warrantless cellphone searches something to worry about.|
In its ruling in a case out of Los Angeles last week, the Supreme Court made it easier for law enforcement to search a suspect's home, even if that person had previously and vehemently refused them permission.
That leads one to wonder, if a majority of justices is willing to limit the constitutional protection against illegal search and seizure in one's own home, will it find reasons to do so for the electronic devices which have become mobile storehouses of our most personal information?
By itself, the court's ruling in Fernandez vs. Los Angeles could encourage law enforcement to arrest citizens as a means of getting access to their homes without demonstrating the probable cause required to obtain a search warrant.
The case turned on whether police can search a home if one of the occupants refuses, but the other consents. The Supreme Court appeared to have decided the question in 2006 in ruling that the consent of a fellow occupant of a home doesn't override "a physically present inhabitant's express refusal of consent to a police search."
But last week, the court carved out an exception if the party refusing permission to search is removed from the scene, in the Fernandez case, via arrest on charges totally unrelated to those that arose from the later lengthy and warrantless search.
Writing for the 6-3 majority, Justice Samuel Alito wrote, "The lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search.
Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel suspicion raised by sharing quarters with a criminal."
But should the rights of the consenting occupant trump the constitutional right of the other occupant to refuse a police search of his or her home?
The dissenters didn't think so. Justice Ruth Bader Ginsburg, said in writing for the minority, "In its zeal, today's decision overlooks the warrant requirement's venerable role as the bulwark of Fourth Amendment protection."
As a result of that ruling, she wrote, "Are the police free to enter the instant the objector leaves the door to retire for a nap, answer the phone, use the bathroom or speak to another officer outside?"
Equally worrisome, the case appears to suggest that police simply can arrest someone refusing a search, take them away from the scene and then return, for example, as they did in the Fernandez case, an hour or so later, and persuade/coerce a remaining occupant to consent to a search that has already been denied.
Sadly, in the case the court used to trim back our Fourth Amendment rights, the police had no need to violate that right in the first place. As Justice Ruth Bader Ginsburg noted, the officers could easily have obtained a search warrant and, with the defendant safely in custody and unable to destroy evidence, there was no emergency which compelled officers to skip the need for obtaining one.
"Instead of adhering to the warrant requirement, today's decision tells the police they may dodge it," Justice Ginsburg wrote.
That doesn't just threaten the constitutional rights of bad guys like the gang-banger at the center of this case, but every American citizen.
Moline, IL Details
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