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Thread: Warrantless searches post Fernandez v California ruling

  1. #1
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    Warrantless searches post Fernandez v California ruling

    It is rare that I feel there is sufficient reason to introduce a new thread for discussion rather than simply participating in an existing thread. However this is a situation during which an exception is warranted.

    Yesterday the supreme court ruled in Fernandez v California by a margin of six to three that police do not need to seek a warrant to search a person's property if they refuse permission, are subsequently arrested, and consent is given by a fellow property owner.

    This has lead to the discussion and speculation that police will simply arrest difficult and non-compliant property owners until one grants consent to a search of the premises in stark contrast to the wishes and desires of those that also share ownership of the property in question rather than make the effort to obtain a search warrant.

    Two question naturally arise from the verdict of this case.

    1. Does the Fernandez ruling confirm that equal property owners have equal say over the property in question and do not need to surrender their position to another property owner if they possess a legal right to be on said property?

    2. The majority opinion written by justice Samuel Alito reads "We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason." Justice Samuel Alito specifically mentions lawful detention or lawful arrest when penning the ruling. Does this specific wording mean that any arrest or detention on the part of the police found to be unlawful and false in nature will lead to a suppression of any evidence recovered during the forced absence? Does this wording mean that police still need a justified reason extending beyond the matter of refusing permission of the search to arrest a subject in order to seek permission from another property owner in order to conduct a warrantless search of the property in question?
    If one cannot have an argument without resorting to hyperbole, name calling and emotional rhetoric, then they have lost the argument from their first post.

  2. #2
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    I know that I'm British and as such a lot less anti-police than most Americans but..

    What is the trouble with the police searching where they want to?

    If there are rules/laws which penalize police officers for doing it without a decent reason to stop abuse of this why is that a problem?

    What is the difference between the police searching your house and the police searching your house after they have a bit of paper from a judge?

    The effort to reduce the effectiveness of the police in catching criminals seems bizarre to me.

  3. #3
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    When police perform a search with a warrant there are rules and guidelines laid out on where they may and may not look. One such rule is that they may not search any location that is physically incapable of storing the described or suspected object. In simple terms a warrant would prohibit them from looking through a jewelry box or any other small storage box in search of a wide screen television. Another restriction put in place by warrants is specifying what police may and may not remove.

    Without a warrant there is nothing to stop police from searching anywhere they wish on the property. Nor is there any way to effectively prevent police from removing property that is irrelevant to the nature of the search.
    If one cannot have an argument without resorting to hyperbole, name calling and emotional rhetoric, then they have lost the argument from their first post.

  4. #4
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    ^Yes. I understand that the warrant limits the ability of the police to investigate but I don't see why we would want that.

    If there was a system which made sure that the police had to be reasonable about anything which they removed and could be quickly and frequently checked to ensure that they didn't keep stuff they didn't need to what's the problem for nice folk?

    I want the police to be effective. I don't want them to be hamstrung.

    I want the police to have strong oversight. I don't trust them a lot so I want them to be even more investigated than the rest of us. Having restrictions on searches does neither of these things.

  5. #5
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    In on town in the state of California approximately one third of the police force has been charged for the impounding and selling of cars owned by poor minority individuals. Their actions were illegal and the only reason it was stopped was due to an outside investigation based on the reports of an independent investigator being present due to a specific murder.

    In most cases there is generally not strong oversight with the police unless the federal government is notified of their wrongdoing and have reason to launch extensive investigative probes into their actions.

    There is a significant difference between having an effective police force and living in what qualifies as a police state.

    Perhaps you can provide an answer to the following question. If police were no longer required to obtain warrants from a judge before carrying out a search precisely what would prevent them from carrying out random cavity searches of motorists? Keep in mind such has already happened in several states. The officers involved have been disciplined for their actions but the searches are still being carried out. What would prevent this practice from becoming routine if the police are no longer faced with discipline for doing as such?
    Last edited by Xenamnes; 02-28-2014 at 03:57 PM.
    If one cannot have an argument without resorting to hyperbole, name calling and emotional rhetoric, then they have lost the argument from their first post.

  6. #6
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    I agree that random cavity searches are out of the question but the answer is that the police man needs to have oversight which will stop him abusing such a power.

    I would also expect that such an invasion of, well of everything should require a taking back to the police station, approval from a senior officer and the procedure being done by a medical professional. And that this would be sort of automatically investigated by whatever oversight structure was in place.

    Basically the focus of American debate seems to be a very legalistically "rules of evidence" style thing. I don't think that that will produce a good result. I don't think it will stop the police fitting somebody up in fact I expect that it will make that happen a lot more as all officers are forced to bend the rules to get bad people off the streets. That will make it very easy for the bad police man.

  7. #7
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    One difficulty with such a proposal is the fact that police officers are trained and educated in enforcement of the law rather than recognition of civil rights. Regardless of how senior ranked the individual the training will always be with enforcement and interpretation of the law. That is why it is generally required for police to obtain a search warrant from a neutral judge who resides the district in question.
    If one cannot have an argument without resorting to hyperbole, name calling and emotional rhetoric, then they have lost the argument from their first post.

  8. #8
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    You seem to have no difficulty with the police having the flexibility to interprate the law until it comes to actually gathering evidence.

    I don't get that.

  9. #9
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    It gets me why you seen unconcerned about the police coming to your door and basically tell you outta the way were coming in like it or not, because maybe Joe XXXX down the road or street say they thought they saw something.
    Does thought give them some kind of right to just come in and take your house apart and pretty much take what they want? See here we have rights that pretty much protect us from that where as you guys across the Big Water don't, in other words you are used to being told when,where and how. Maybe if your lucky why.
    As X said they can't be looking in a jewelry box for a 50" flat screen. Unless it's 0' dark thirty and they kick your door in and wonder why bullets fly just because it happened to be the wrong house.

    Me and cops get along fine as long as they uphold the Oath to The Constitution they took.
    Gun Control? "We'll Fight Them, Sir!, Until Hell Freezes Over, And Then We'll Fight Them On The Ice! Sir!

  10. #10
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    I don't have a problem with the cops searching my house as long as there is a process where they must justify any such action. This can be done afterwards.

    I don't have a problem with them searching for a stolen TV and whilst at the suspected thief's house they find a set of car keys for cars that have been stolen instead.

    Why cripple the police?

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