Pubdate: Mon, 01 Apr 2013
Source: Washington Post (DC)
Copyright: 2013 The Washington Post Company
Contact: http://mapinc.org/url/mUgeOPdZ
Website: http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Author: Robert Barnes
Page: A11

WITH THE FOURTH AMENDMENT, THINGS AREN'T SO PREDICTABLE

The decision delivered last Tuesday was one of the court's most 
readable of the term: Dogs seem to bring out the wit in Supreme Court justices.

The oral arguments last week on same-sex marriage showed clearly the 
Supreme Court's familiar fault line between liberal justices 
nominated by Democratic presidents and conservatives named by Republicans.

But a decision that got a little lost in the shuffle displayed a 
different kind of split on the court. And it may become more 
noticeable as the term continues and the justices dig deep on a part 
of the Constitution that has divided and vexed their predecessors as well.

The question is how to balance law enforcement interests against the 
right that the Fourth Amendment gives citizens to be "secure in their 
persons, houses, papers, and effects, against unreasonable searches 
and seizures."

In last week's takedown of a legendary drug-sniffing police dog named 
Franky, it was an unlikely-sounding coalition of conservatives and 
liberals unwilling to defer to law enforcement.

Conservative Justices Antonin Scalia and Clarence Thomas joined with 
the court's liberal women - Ruth Bader Ginsburg, Sonia Sotomayor and 
Elena Kagan - to say that it constituted a "search" under the Fourth 
Amendment for two police officers to accompany Franky to Joelis 
Jardines's front door in Miami. They had received an anonymous tip 
that Jardines had turned his abode into a full-time "grow house" for marijuana.

The cops used Franky's "alert" at the door as probable cause for 
getting a search warrant.

The decision delivered last Tuesday was one of the court's most 
readable of the term: Dogs seem to bring out the wit in Supreme Court justices.

Scalia quoted an ancient legal doctrine that "holds the property of 
every man so sacred, that no man can set his foot upon his 
neighbour's close without his leave."

In Miami, Scalia said, "it is undisputed that the detectives had all 
four of their feet and all four of their companion's firmly planted 
on the constitutional protected extension of Jardines' home."

There is an implicit license for a visitor to come to someone's front 
door, Scalia said, and "it is generally managed without incident by 
the nation's Girl Scouts and trick-or-treaters."

But while it might be routine to find a visitor knocking at the door, 
Scalia wrote, "to spot that same visitor exploring the front path 
with a metal detector, or marching his bloodhound into the garden 
before saying hello and asking permission, would inspire most of us 
to - well, call the police."

Kagan wrote separately to say she thought it was an easy decision for 
courts to throw out the evidence against Jardines, and would base her 
decision "on privacy as well as property grounds."

The court's fourth liberal, Justice Stephen G. Breyer, was on the 
other side. He and conservatives Chief Justice John G. Roberts Jr. 
and Justice Samuel A. Alito Jr. have been more willing to defer to 
law enforcement.

Alito wrote the dissent to the case, saying the majority's decision 
was "based on a putative rule of trespass law that is nowhere to be 
found in the annals of Anglo-American jurisprudence."

He said police have always had the right to go to a person's front 
door, and it was no different in this context simply because the 
officer was accompanied by a dog on a leash. Alito accused Scalia of 
hyping the whole event: All told, he said, it only took a minute or two.

( The two also presented an amusing lesson on how to present your 
argument: Scalia never referred to the police dog by name and said 
the animal was restrained by a six-foot leash because of his "wild" 
nature. Alito called out Franky 11 times and directed the reader to 
dogs.about.com to note that a six-foot leash is "standard equipment.")

The case is just one of several the court accepted this term that 
raise Fourth Amendment issues. Earlier, the justices ruled 6 to 3 
that people who have left the scene where officers are enforcing a 
search warrant cannot be stopped and detained without probable cause.

The court has heard oral arguments but has not yet rendered a 
decision in a case in which police want to be able to draw blood 
samples from suspected drunken drivers without their consent or a warrant.

And, in what Alito called "perhaps the most important criminal 
procedure case that this court has heard in decades," the court heard 
a challenge to Maryland's law that allows law enforcement to take DNA 
samples from those arrested for serious crimes.

That case has not been decided.

Washington lawyer Kannon K. Shanmugam, who represented the Maryland 
man whose DNA tied him to a different crime from the one for which he 
was arrested, said the court "seems to be looking for bright-line 
rules in determining whether police conduct" constituted a "search" 
for Fourth Amendment purposes.

"And the common thread of the recent decisions is that the court 
isn't willing to say that police conduct is constitutional just 
because the government says it's effective as a law enforcement 
tactic," Shanmugam said.

In the oral arguments in Maryland v. King, the liberal ranks seemed 
split, with Breyer asking questions sympathetic to Maryland's law, 
and Kagan extremely critical.

It was the same on the conservative side. Alito stayed true to his 
image as perhaps the biggest supporter of government in Fourth Amendment cases.

Scalia's questions were more disapproving. He often cites criminal 
procedure cases when he tells audiences that the court is not as 
predictable as it is sometimes depicted, and that liberal and 
conservative are not always adequate in describing the justices.

As he said during a speech last fall in Wyoming: "I ought to be the 
pinup of the criminal defense bar."
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MAP posted-by: Jay Bergstrom