Alablawg

Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Thursday, March 23, 2006

Public Service

I need to get to work, but I feel like it is my duty to point out a few major constitutional errors in this article.

First, the basic rule is that the cops can not come in your house without a warrant.

Second, that rule holds even if the cop can see drugs in your house. If johnny law is walking down the street and happens to look through your window and see fifty tons of marijuana, or even a fully functioning meth lab, he can NOT just barge right in and search your house. He must go get a warrant. The article is wrong to suggest that 'plain view' justifies a warrantless search. It does not.

Third, there are well recognized exceptions to the warrant requirement. He can ask you for permission to search, and you can consent. It must be voluntary consent, so he can't ask you while pointing his gun at you. But if he just asks, and you say yes, he can search. He can also search without consent and without a warrant if he must do so to prevent serious harm to another person, or if he is chasing you and you run into the house, or if you are in the process of destroying evidence. Those situations are all called 'exigent circumstances.'

Those exceptions are a big reason why the article incorrectly reports, and Justice Roberts dishonestly suggested in his first dissent (get all the opinions in Georgia v. Randolph here), that requiring a warrant when one occupant consents to a search while the other occupant refuses to allow a search will hinder domestic violence investigations. If the victim is in imminent danger, or if the accused is about to destroy evidence the cops can enter the house under the exigent circumstances exception. On the other hand, if there is no danger, and if the evidence is secure, then what hindrance is it to go get a warrant?

Cops think everyone is a crook. If they got to decide whose house was subject to a search, no-one could sleep peacefully in their homes. The warrant requirement protects our homes by ensuring that the decision to search is made in a calm and reasonable manner by a detached and neutral judge. It ensures that the sanctity of the home is only violated when truly necessary.