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billydunwood
join:2008-04-23
united state

billydunwood to Cheese

Member

to Cheese

Re: Detained by law enforcement

said by Cheese:

said by Midniteoyl:

If the cops want in, all they have to do is 'arrest' the party most likely to say 'no' and remove them from the premises. Then they can search at will. No warrant needed.

You sure about this? Because I don't believe even if they arrest, they can just search at will.

Its called search incident to arrest. If an arrest occurs in a house without a search warrant, the search is supposed to be within 10ft of where theperson was arrested in the house, and the point was to make sure there are no weapons or evidence hidden.
If the arrest was illegal and the officers found drugs or other illegal items, the evidence in court would be suppressed and not admissible under the Fruit of the Poisoness tree Doctrine

Midniteoyl
join:2013-11-22
Knox, IN

Midniteoyl

Member

I dont think you guys are seeing the bigger picture as to why this ruling sux..

IF they needed to search the apt right away, they didn't. They waited over an hour. IF they suspected criminal activity in the home, they could have gotten a warrant. They didn't. 'Search incident to arrest' does not apply to your home, only to your person and immediate area.

The main problem again, is that now the cops can remove the non-approving person from the premises and conduct a warrantless search. Period.

You say 'so waht'? I say, 'what if you have an enemy'? Or conniving wife/husband? Or a cop who feels you wronged him? Or a million other reasons this was put into the amendments in the first place.

- Justices Sonia Sotomayor and Elena Kagan joined Ginsburg in dissent and faulted the court for retreating from the warrant rule.

"Instead of adhering to the warrant requirement, today's decision tells the police they may dodge it," Ginsburg said.

She noted that in 2006, the court had ruled in a Georgia case that a husband standing in the doorway could block police from searching his home, even if his estranged wife consented. In Tuesday's opinion, the majority said that rule applied only when the co-owner was "physically present" to object.

»www.latimes.com/nation/l ··· us6YPcrQ
said by billydunwood:

said by Cheese:

said by Midniteoyl:

If the cops want in, all they have to do is 'arrest' the party most likely to say 'no' and remove them from the premises. Then they can search at will. No warrant needed. -

You sure about this? Because I don't believe even if they arrest, they can just search at will.

Its called search incident to arrest. If an arrest occurs in a house without a search warrant, the search is supposed to be within 10ft of where theperson was arrested in the house, and the point was to make sure there are no weapons or evidence hidden.
If the arrest was illegal and the officers found drugs or other illegal items, the evidence in court would be suppressed and not admissible under the Fruit of the Poisoness tree Doctrine

Midniteoyl

Midniteoyl

Member

The story..

________________________________________________________________

The Fourth Amendment generally requires the police to obtain a warrant before searching a home, though that requirement may be avoided if the homeowner consents to the search. But happens when two (or more) people reside in the same home, and only one of them consents to the search while the other refuses? Do the police have sufficient consent to conduct a warrentless search in that instance?

The Supreme Court addressed this question in the 2006 case of Georgia v. Randolph and came down against the police. At issue was a domestic violence investigation where the male suspect refused to let the police search his home while his wife welcomed the search. The police went in. Yet according to the Supreme Court, the man's refusal should have stopped the cops in their tracks. "A physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant," the Court ruled.

Today, the Supreme Court returned to this subject with a new ruling in favor of law enforcement. At issue in Fernandez v. California was a 2009 search by the Los Angeles Police Department of the home of a robbery suspect. When the officers first arrived, suspect Walter Fernandez denied them entry, but because his girlfriend Roxanne Rojas exhibited signs of recent injury, Fernandez was arrested on separate charges of domestic violence. While Fernandez was being booked, one of the officers returned to the apartment and gained Rojas' permission to conduct a search, which soon turned up evidence linking Fernandez to the robbery.

Writing for a 6-3 majority, Justice Samuel Alito upheld the LAPD's actions. "A warrantless consent search is reasonable and thus consistent with the Fourth Amendment irrespective of the availability of a warrant," Alito wrote. Moreover, he added, "Denying someone in Rojas' position the right to allow the police to enter her home would also show disrespect for her independence."

Writing in dissent, Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan, accused the majority of weakening the Fourth Amendment and granting the police too much latitude. "Instead of adhering to the warrant requirement," Ginsburg wrote, "today's decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate." This ruling, she charged, "shrinks to petite size our holding in Georgia v. Randolph."

___________________________________________________

So ya, they basically held that if they want to search your home, all they need to do is arrest you for any other reason, then search to find evidence of a different crime, and send you to prison for that one..

____________________________________________________

And a more detailed write-up : »www.techdirt.com/article ··· nt.shtml
billydunwood
join:2008-04-23
united state

billydunwood to Midniteoyl

Member

to Midniteoyl
said by Midniteoyl:

I dont think you guys are seeing the bigger picture as to why this ruling sux..

IF they needed to search the apt right away, they didn't. They waited over an hour. IF they suspected criminal activity in the home, they could have gotten a warrant. They didn't. 'Search incident to arrest' does not apply to your home, only to your person and immediate area.

The main problem again, is that now the cops can remove the non-approving person from the premises and conduct a warrantless search. Period.

You say 'so waht'? I say, 'what if you have an enemy'? Or conniving wife/husband? Or a cop who feels you wronged him? Or a million other reasons this was put into the amendments in the first place.

- Justices Sonia Sotomayor and Elena Kagan joined Ginsburg in dissent and faulted the court for retreating from the warrant rule.

"Instead of adhering to the warrant requirement, today's decision tells the police they may dodge it," Ginsburg said.

She noted that in 2006, the court had ruled in a Georgia case that a husband standing in the doorway could block police from searching his home, even if his estranged wife consented. In Tuesday's opinion, the majority said that rule applied only when the co-owner was "physically present" to object.

»www.latimes.com/nation/l ··· us6YPcrQ

Uh, Search incident to arrest does apply to the immediate area in your home, if you are arrested inside your home, which is why I posted generally within 10ft of where you are arrested. Read Chimel v California, which stated that a search incident to a lawful arrest that occurred inside a home is legal, as long as it is the immediate area. Also, the police can do a protective sweep(not a search, but still the entire house) of the entire house if they have reasonable suspicion that someone dangerous is inside. And while they are doing the protective sweep, if they see something illegal in plain view, now they can seize that item, lock the house down and apply for a search warrant, which will get granted if everything was done properly.

Midniteoyl
join:2013-11-22
Knox, IN

Midniteoyl

Member

said by billydunwood:

And while they are doing the protective sweep, if they see something illegal in plain view, now they can seize that item, lock the house down and apply for a search warrant, which will get granted if everything was done properly.

Which is all I'm saying.. They just need to stick to that. Now though, they dont have too..
billydunwood
join:2008-04-23
united state

billydunwood

Member

said by Midniteoyl:

said by billydunwood:

And while they are doing the protective sweep, if they see something illegal in plain view, now they can seize that item, lock the house down and apply for a search warrant, which will get granted if everything was done properly.

Which is all I'm saying.. They just need to stick to that. Now though, they dont have too..

Oh and just to also clarify, you dont have to be arrested only in your house for them to do a protective sweep inside. You can be arrested in your driveway or front lawn and police can still legally do a protective sweep. But that ruling you are referring to can be appealed to the USSC