Criminal

5th Fifth Amendment Part 3

Let’s talk a little bit about the good news. And that’s a change of heart. We’ve been talking about the new majority with the chief justice and Leto. That new majority has changed to strange bedfellows, to unlikely coalitions. And as I mentioned; the more unlikely the coalition the stranger the bedfellows the better the shit gets at least in my evaluation. These new cases deal with redefining the definition of the 4th amendment. This is a case from 2 months ago. The ‘dog sniff’ case! How many of ya’ll haven’t heard about it? We’ve all heard about it, but it’s a fascinating read. These are, by the way these are not terribly linked; the opinions most of them. And they’re worth the read! Floria versus Jardines is an interesting case. In it, in fact the issue there was; whether a drug sniffing dog on your front porch sniffing at your door constitute a search. That’s what the court was supposed to be looking for. That was the issue presented. Another 5/4 decision! Scalia writes for the majority and he’s joined by Tomas, who’s always or generally speaking close up his behind, Ginsburg, Sotomayor and Kagan. Kagen concurs. She’s joined by Ginsburg and Sotomayor and this is when the women step up the plate and we can be proud and happy that they are looking out for our constitutional rights.

Alito dissents, he’s joined by Robert Kennedy and of all people prior, go figure this one out. These are some strange bedfellows indeed. Scalia’s hoped up on his usual idea of the original intend. How does he know? We go through this again but; how does he know? I mean the words ‘all men are created equal’ they meant that. They were not gender perfect folks. They were all men!

Women didn’t get the right to vote or sit on the jury until 50 years after African-Americans got those rights. We now know that justice and liberty cannot be the exclusive domain of the privilege few. Times have changed and so have we. He cites as his underlying premise in Hardines as he does in Jones Entick versus Carrington. It’s a case 1765?

Lord Canton writes for the court of common pleas and what he, you got to love the language,” our law holds the property of every man so sacred that no man can set his foot upon his neighbor’s close without his leave” Great verbiage and in Hardines Scalia focuses he says, “look, by physically intruding upon someone house, this is within the original meaning of the 4th amendment”. He goes on to talk about his castle doctrine. That the, “ the right to be free from physical intrusion is first among equals, when it comes to 4th amendment violations of ones home, of one’s castle” Remember the cell? [Speaker laughs sarcastically] one’s home!

In Hardines, Scalia goes on and he stresses this ‘physical trespass’ and this ‘castle doctrine’. By the way, the true detectives Hardines front porch with ‘Frankie’ the dog, sniffing on his front door. But now, by the way where is the intrusion into the house. ‘Frankie’’s outside the house, he’s not in the house, he’s on the outside of the house sniffing at the door. Well, remember the trilogy of standing cases, Rakas Rollings and Salvucci where the Supreme Court said,” we’re going to eschew ‘Arcane property doctrines’. Well, Scalia relies upon cartilage. This is common knowledge to every American citizen and not Arcane at all.

well the cartilage we learned is that; the area immediately surrounding and associated with the domestic use of the house and is part of the home itself! Or go, the porch and the steps coming to. What about the mail man and solicitors and people that walk up and want to ring your door bell? are they physically intruding . Why can’t a police officer do what the public generally could do? And the answer; there’s an implicit invitation according to Scalia to the mail man and the solicitor but not to the police. And by the way, the majority does not decide, that the, whether the dog sniff was a search rather, they decided that the two detectives there in Florida and ‘Frankie’ the dog were trespassers on Mr. Hardines’s front porch, when the dog obtained the order of marijuana, not that that constituted a search but that they’re tresspass on that cartilage, constituted the search.

A year and a half ago, the Supreme Court decided Jones. The issue there is, whether or not the attachment and tracking of a GPS device on Antowan Jones’s pickup truck constituted a search. By the way, they did get a warrant that was for I believe 10 days in the District of Columbia. Unfortunately they waited a month to execute and place the GPS device on Mr. Jones’s pickup truck and they did in Maryland outside the jurisdiction of District of Columbia and they monitored it for almost 28 days, almost a full month. There’s two issues there; the attaching of the device to Antowan’s pickup truck and the monitoring of it. And nobody get, when you’re monitoring a GPS device, this is not a real time. it’s not like the, forced with like knots and we have the companion case, US versus Butts where we talk about real time monitoring where they have a beeper and the monitor. This information is data mining, its being stored by the GPS device. And they just decide, if they need it, they go back and look for Mr. Jones’s GPS device and they will then retrieve and mine that digital data.

Well this property based approach that it’s a physical intrusion onto Anotwan Jones’s pickup truck, is where Scalia focuses again, again citing Inteck versus Carrington from 1765,” At bottom we must ‘assure preservation’ of that degree of privacy against government that existed when the fourth amendment was adopted…As explained for most of our history the fourth amendment was understood to embody a particular concern for government trespass upon the areas it enumerates; persons, houses, papers and effects “I guess as Antowan Jones’s pickup truck .

What about happened Katz? Remember Katz?

Katz was bitching because they intercepted his call from a public telephone booth. And the argument was,” well the public, it’s a public telephone booth!” and the Supreme Court makes a big deal out of the fact that this fourth amendment protects people, not places!

Well, so and remember this is where we got that definition of a search being; a violation of one’s reasonable expectation of privacy! Well Scalia explains to us and what he say is,” look the Katz ‘reasonable explanation privacy’ test it’s not a substitute for a physical intrusion test it’s an alternate to that approach” ok so now, we have two tests. And by the way it’s interesting because that same test; reasonable expectation of privacy is also the test for the discrete, distinct issue whether you have standing to complain on the first place. Texas saw this coming. one year ago in state versus Bell, the court of criminal appeals; that this was a case that involved one standing to a search, he was parked in the public parking lot at a Galleria Mall. And the court of criminal appeals, the state appeal there was suppression on it. And the court of criminal appeals summarily granted the defendants petition saying,” The Supreme Court’s recent decision in United States versus Jones in which the court reaffirmed the continued vitality of the property based approach. They’re getting that, they’re getting that property based approach. And a year before that, the court of criminal appeals in Weaver, this is a case where they go to Mr. Weaver’s welding shop and they’re looking for fugitive by the name ‘bear’ and get his consent to search the shop. They don’t find bear, but they see.

Francisco Hernandez

Author Francisco Hernandez

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