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The Live-in's Apparent Authority:

Does a homeowner's live-in boyfriend or girlfriend have the "apparent authority" to consent to a warrantless search of the property? What if the live-in boyfriend/girlfriend had no key and had shown up at the police station the morning of the search claiming to have been "thrown out" of the house? Would it matter if the police knew the relationship had gone on for several years and was particularly turbulent (i.e. on-again, off-again, with repeated domestic violence calls to the police)?

United States v. Penney, decided today by a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, raises these questions, and more. This area's not my specialty, but I'm inclined to side with the dissent. It seems to me the police had ample reason to question the homeowner's girlfriend's apparent authority. I would also think they could have obtained a search warrant had she been as willing to report on her lover's activities as she was to lead the police through the home.

PatHMV (mail) (www):
While Bowman was at the station, Penney arrived and demanded that police remove Bowman from his residence


That's at the station, shortly before the search, so yeah, I'm afraid I've got to side with the dissent here, too. It's not like there was no basis for a warrant, and Penney was locked up at the time; the police could easily have kept him at the station for the hour or two it would have taken to write down what she said, put it in an affidavit, and run it across the street to the courthouse.

The majority is correct that people often cohabitate without bothering to formalize the arrangement. But surely if there are no formalities involved, the person without any written property rights is subject to revocation of their authority to be in the place at any time. I don't care if she had been living continuously with Penney for 15 years before this, if she's not on the lease and isn't asserting any property rights to the place, and he says "remove her from my house," then I think it was no longer reasonable for the police to believe she had apparent authority over the property.

Basically, he had just asked the police to arrest her for trespassing. Unless they determined that she had sufficient property rights that they had no lawful authority to do so, their job at that point was to prevent her from going into that house.
8.7.2009 10:55am
Soronel Haetir (mail):
I would think at the point it is demonstrated that someone can not enter the residence via the front door, any such apparent authority vanishes. Regardless of knowledge of past residence at the location.

Also, given the recent SCOTUS case of conflicting consent I would think that the guy showing up at the police station would provide the needed conflict to prevent the search without a warrant.
8.7.2009 11:04am
Angus:
Personally, I would go even further and say that unless someone has contractual or other legal rights over the property, they cannot consent to a search of the property.
8.7.2009 11:09am
PeteP (mail):
The mere fact that one resident of a place has' thrown out' another does not mean that the second party 'is not considered a resident'. When a lease-holder and a non-lease holder live together, that does not mean that the non-lease-holder is never considered 'a resident' regardless of duratino of residency, nor that the lease holder has authority to eject the other party at will.

The fact that that the ejected resident happens to have left without various personal property which remained in the residence, like her keys ( car and otherwise, which is why she walked to the plice station although her car was parked at the residence ) is dispositive of nothing.

The police were right, and the sentence was valid.

ps - I saw this on Law and Order once, so I know it's right :-)
8.7.2009 11:12am
Gabriel McCall (mail):
Yeah, I'm pretty skeptical of the legal theory here too. And it's worse in the US v Gillis case they cited:


In that case, we held that police reasonably believed a girlfriend had authority to consent
to a search of a residence where defendant lived, although she told officers that she had
left that residence several months earlier as a result of defendant's physical abuse, did
not have all the keys necessary to unlock the residence, and was also staying at another
address at the time of the search. Id. at 388, 391. We explained that the officers' belief
was reasonable because the girlfriend stated that "she continued to reside at both"
residences, id. at 388, "that she had been at the residence earlier that same morning," and
"provided them with detailed information about the premises, including the locations
where [defendant] had drugs hidden on the property," id. at 391.


In other words, we can reasonably search your house based on the consent and unsupported assertions of someone who doesn't live there, as long as she knows where your pot is. I agree with the dissent that this theory "is simply a backhanded way of repealing the exclusionary rule and extinguishing the protections of the Fourth Amendment because the law, as written by the Founders, is inconvenient and hinders criminal convictions."

However, in the Penney case, the same net result would have occurred if she had walked into the house alone and waved a dime bag in the window for the cops to see, right? So even if the search as conducted was invalid, the same outcome would inevitably have been achieved by valid means.
8.7.2009 11:12am
PeteP (mail):
Angus - "Personally, I would go even further and say that unless someone has contractual or other legal rights over the property, they cannot consent to a search of the property."

I lived in my parents house for 19 years. I had no contractual or other legal rights there, especially after reaching majority, other than what they chose to grant me. Even my key to the door was actually their property, on loan to me.

Are you saying I was not a resident, and could not let the police in ?

If I've had a live-in girlfriend for 5 years, all her personal property is in the house, she comes and goes as she pleases, and calls it 'home', including contributing to the bills ( which are all in my name ), are you suggesting that she is not a 'resident' for purposes of eviction, or allowing the police in ? Are your saying you think I can just kick her out on a moment's notice as 'an unwanted guest' ?

Nonsense.
8.7.2009 11:17am
krs:
Judge Merritt is wrong about so many things and very quick to accuse his colleagues of dishonesty.

He seems right about the search &seizure issue in this case, but the aspersions he casts on his colleagues seem unwarranted. Here's how the majority sums it up:

We conclude that in this case, it was likewise reasonable for Soddy-Daisy officers to believe that Bowman was a live-in girlfriend, who enjoyed access to the premises for most purposes, even if the relationship was known to be turbulent and the couple did not cohabit uninterruptedly.

This seems wrong to me, but not so far off as to warrant Judge Merritt's accusation that the majority is spinning the case because it finds the exclusionary rule inconvenient.
8.7.2009 11:17am
Dave N (mail):
When I first read the synopsis, I was concerned about why this was a federal case in the first place, since I am a strong opponent of federal prosecutions when the federal role in the investigation is de minimis (or even completely lacking).

However, after reading the facts, it is clear the federal role was substantial--the ATF was directly working with the local police on a sting operation and Penney shot an ATF agent who was trying to arrest him.

With respect to the search, I agree that the dissent has the better argument. The local police knew that Penney was the owner of the property and that his girlfriend lived there only with his permission--which he expressly revoked in their presence.

The police probably should have provided a civil standby while Penney brought out her belongings and car keys and then arrested him for the battery.
8.7.2009 11:21am
SeaLawyer:

ps - I saw this on Law and Order once, so I know it's right :-)



Thread winner.
8.7.2009 11:33am
David Drake:
Concur with the dissent. The police had a reliable informant and could have obtained a warrant, and no risk that Penney would destroy the contraband, as he was in jail.
8.7.2009 11:34am
licrimlawyer:
You academics may find this case interesting, intriguing, puzzling, troubling, whatever. Those of us who deal with these issues "in the pits" know that there is no way in hell that any court is going to suppress on these facts. They may have to twist the constitution into a pretzel, but they will find some way to hold the evidence in.

Bear in mind that the exclusionary rule is not in favor with the federal judiciary. You will even, on occasion, hear of proposals to do away with the exclusionary rule in favor of civil lawsuits--for money damages--against offending police officers. (That would be a separate topic. Personally I think it is ridiculous because most civil plaintiffs will be convicted criminals, a group that most juries will not favor.)

The bottom line, in this case, is that the factual issues were resolved against the defendant who shot a federal agent. Anyone who is surprised by this should, at the very least, stay away from the defense table in a criminal courtroom.
8.7.2009 11:57am
ShelbyC:

If I've had a live-in girlfriend for 5 years, all her personal property is in the house, she comes and goes as she pleases, and calls it 'home', including contributing to the bills ( which are all in my name ), are you suggesting that she is not a 'resident' for purposes of eviction, or allowing the police in ? Are your saying you think I can just kick her out on a moment's notice as 'an unwanted guest' ?


Aside from the fact that she's paying money to be there, why shouldn't you be able to?
8.7.2009 12:12pm
ArthurKirkland:
Two reactionary judges engage in logical gymnastics to reach an ideologically inclined result that disdains constitutionally protected civil liberties.

Let's hope the federal bench changes in the next few years, making this type of decision less common.
8.7.2009 12:13pm
Dan Weber (www):
ps - I saw this on Law and Order once, so I know it's right :-)

It's also come up on Buffy The Vampire Slayer. No, I'm serious: only someone who lives in a residence can grant permission for a vampire to enter. If there were ever an impartial judge, the curse inhibiting vampires would surely qualify.
8.7.2009 12:32pm
ShelbyC:

You academics may find this case interesting, intriguing, puzzling, troubling, whatever. Those of us who deal with these issues "in the pits" know that there is no way in hell that any court is going to suppress on these facts. They may have to twist the constitution into a pretzel, but they will find some way to hold the evidence in.


Maybe we need more disciplinary action against judges, then.


Bear in mind that the exclusionary rule is not in favor with the federal judiciary. You will even, on occasion, hear of proposals to do away with the exclusionary rule in favor of civil lawsuits--for money damages--against offending police officers


Why not civil lawsuits that enjoin the state from introducing the evidence?
8.7.2009 1:15pm
Crunchy Frog:

No, I'm serious: only someone who lives in a residence can grant permission for a vampire to enter.

Also a major plot point in The Lost Boys.
8.7.2009 1:27pm
Mark N. (www):

Two reactionary judges engage in logical gymnastics to reach an ideologically inclined result that disdains constitutionally protected civil liberties.

I suppose every side has to have their favorite topics ripe for activist judging. An attitude of "damn the Constitution, government always wins" in criminal and especially drug cases seems to be the most frequent failure of supposedly conservative judges. I notice Boggs is a Reagan appointee and Griffin a GWB appointee, and it's solidly in the Rehnquist/Bork tradition (though not the Scalia or Thomas one).
8.7.2009 1:44pm
PatHMV (mail) (www):
ArthurKirkland, your comment appears to be a gratuitous general swipe at conservative judges. If you actually study such things, you'll learn that Justice Scalia is the one most likely to find for the defendant in this type of case, and it is the liberal judges who tend to look for "balancing tests" and the like to uphold government actions in these cases. It was Justice Scalia, for example, who believed that pointing an infrared camera at a house, to see what was going on inside (in particular, whether there was likely a pot farm in the house), was a search, and thus prohibited without a warrant. The liberal judges engaged in very sophisticated reasoning to determine that, well, no, it wasn't really a search, and thus the warrantless viewing of the interior of the house wasn't prohibited.

Meanwhile, I (and I'm pretty sure others who have commented supporting the dissent's position) am as conservative as they come on judicial issues, and have no problem saying that I think these two particular judges flubbed it on this one. May I presume from your comment that heretofore, whenever any liberal judge makes an erroneous ruling, I can blame all liberal judges for that mistake?
8.7.2009 1:45pm
ShelbyC:

I suppose every side has to have their favorite topics ripe for activist judging. An attitude of "damn the Constitution, government always wins" in criminal and especially drug cases seems to be the most frequent failure of supposedly conservative judges


Well, maybe I didn't read the opinion closely enough, but I fail to see how the cops got from both parties saying that she was thrown out to her having the appearant authority to consent to a search. Maybe there's some law that says she can't be thrown out at the drop of a hat, but it's sure not in the opinion.
8.7.2009 1:53pm
Oren:

However, in the Penney case, the same net result would have occurred if she had walked into the house alone and waved a dime bag in the window for the cops to see, right?

No, that would have generated a search incident of the immediate vicinity. Closed containers that obviously did not have weapons would have been outside the scope of the search.

Moreover, in that case the snitch would have gone to jail -- which is at least better than letting a spiteful ex-girlfriend use the police to inflict injury on her boyfriend for kicking her out.
8.7.2009 2:24pm
PatHMV (mail) (www):
Oren, re: your last sentence. If the boyfriend hadn't been keeping dope at his house, she couldn't have used the police to inflict injury on him. The problem here is not that the police acted on her tip (that's a risk everybody takes when they let a girlfriend or others know about their criminal activity), it's that they went straight to the house with her rather than stopping by the judge's office for a warrant, first.

To my mind, had she just walked back into the house, the police would have been obligated to arrest her for trespassing, based on the complaint he was in the process of filing when she showed up at the police station.
8.7.2009 2:34pm
Angus:
I lived in my parents house for 19 years. I had no contractual or other legal rights there, especially after reaching majority, other than what they chose to grant me. Even my key to the door was actually their property, on loan to me.

Are you saying I was not a resident, and could not let the police in?

Correct. That is what I would say is consistent with the Constitutional protection of the 4th amendment.

If I've had a live-in girlfriend for 5 years, all her personal property is in the house, she comes and goes as she pleases, and calls it 'home', including contributing to the bills ( which are all in my name ), are you suggesting that she is not a 'resident' for purposes of eviction, or allowing the police in ? Are your saying you think I can just kick her out on a moment's notice as 'an unwanted guest' ?

This one isn't even as close at the first one. This one is a clear "Yes," of course you can kick her out at a moment's notice.
8.7.2009 2:35pm
ArthurKirkland:
I believe Justice Scalia to be a valuable member of Supreme Court. I would prefer that he spend most of his time penning 6-3 dissents, but he is thoughtful, creative, and passionate, attributes to be valued among Supreme Court Justices.

The decision that spawned this discussion strikes me as a symptom of the trend toward positioning unseasoned ideologues on the federal bench -- not an exclusively Republican failing, and a trend that has been building for decades.

The judges who constituted the majority in this case appear to have done precisely they were selected and expected to do -- rule reflexively in a particular direction. I suspect they have done so for many years, and are unlikely to change.
8.7.2009 2:36pm
Bill Sommerfeld (www):

I would think at the point it is demonstrated that someone can not enter the residence via the front door, any such apparent authority vanishes.

non hypothetical case (happened to a friend of mine who was, regrettably, in a high-drama relationship):

- she moved ~2000 miles to another city to be with her fiancee
- the relationship was stormy
- she had no other residence or relatives in that city
- on several occasions he kicked her out of the house in the heat of an argument; he always let her back in once he calmed down. on at least one occasion she was kicked out sans shoes. on another, sans clothes.

the fact that she was not given opportunity to dress or collect keys or id on the way out does not affect her right to return to her residence, and should not affect her ability to get back in with the aid of police to retrieve her personal belongings.

(as a footnote: she figured out quickly enough that this was a doomed relationship and bailed. she's now happily married to someone else).
8.7.2009 2:40pm
Mark N. (www):

of course you can kick her out at a moment's notice.

Has all the common-law jurisprudence on long-term live-in couples been abolished in the U.S.? My impression is that at common-law, long-term facts of consensual living arrangements produced some enforceable rights, even if they fell short of the public declaration of being husband/wife required for a common-law marriage. I seem to recall some 19th-century case that ascribed such rights even to people other than couples, so for example a son could not at a moment's notice kick out his mother who had been living with him for 10 years. But I will admit to not knowing much about this area of law.
8.7.2009 2:46pm
Oren:

If the boyfriend hadn't been keeping dope at his house, she couldn't have used the police to inflict injury on him.

Where exactly do you want to him to keep his dope in which he preserves a reasonable expectation of privacy? Anywhere but the home leaves it more vulnerable to the police.


her ability to get back in with the aid of police to retrieve her personal belongings.

That does not allow the police to search closed containers that are clearly not her personal belongings.

That's generally the problem -- you give the police an inch (say, let me come in and get my stuff) and the next thing you know they steal your dope from underneath the bed. If they can't be trusted to stay within the limits of the reason they are in the house, they should stay outside of it.

PS. Since the perp was jailed and the snitch already knew how to get in the back door, what exactly was the justification of bringing the police along?
8.7.2009 2:48pm
Eric Rasmusen (mail) (www):
(1)If the owner of the property expressly denied someone authority to allow entry and the police knew it, agency law clearly says the police can't enter.

(2) The exclusionary rule is stupid, of course, so if they do enter, the evidence should be admissible (I know it isn't under judge-made law), but the owner should be able to sue the police for civil rights damages.

(3) The law does not and should not say that only the owner can allow somebody entry to property. Otherwise, the person at the ticket counter wouldn't be able to allow customers into Disneyland.

Rather, it is a question of apparent authority, and that is determined by circumstances, in a reasonable way. A guest or a servant would seem to me to have apparent authority to let someone, including a policeman, into the hallway, but not to give the entrant permission to search the bedroom closet. A guest who claimed to be locked out by accident but could prove he was a guest would have similar apparent authority. Someone who claimed to be locked out on purpose after an argument would *not* have any kind of authority, even if they had lots of possessions inside the house. I don't know how they could their possessions, but I suppose that, as with furniture repossession, it couldn't be by breaking and entering or by police without a court order.
8.7.2009 3:26pm
Her say:
Has all the common-law jurisprudence on long-term live-in couples been abolished in the U.S.?


U.S. v Matlock (1974):
If there is remaining doubt about the matter, it should be dispelled by another consideration: cohabitation out of wedlock would not seem to be a relationship that one would falsely confess. Respondent and Gayle Graff were not married, and cohabitation out of wedlock is a crime in the State of Wisconsin. Mrs. Graff's statements were against her penal interest and they carried their own indicia of reliability. This was sufficient in itself, we think, to warrant admitting them to evidence for consideration by the trial judge.

(Emphasis added; footnote omitted.)
8.7.2009 3:33pm
http://volokh.com/?exclude=davidb :


No, I'm serious: only someone who lives in a residence can grant permission for a vampire to enter.

Also a major plot point in The Lost Boys.

And practically the title of "Let the Right One In," which is freaking awesome.
8.7.2009 3:36pm
OhioLawdog (mail):
My problem with this case: what can someone in the Penny's position do to extinguish any apparent authority that Bowman had?
8.7.2009 3:42pm
They say:
[W]hat can someone in the Penny's position do to extinguish any apparent authority that Bowman had?


Nothing.

 

Absolutely nothing.

 

 

JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting:

The baseline for the reasonableness of a search or seizure in the home is the presence of a warrant. Indeed, “searches and seizures inside a home without a warrant are presumptively unreasonable.” Exceptions to the warrant requirement must therefore serve “compelling” law enforcement goals. Because the sole law enforcement purpose underlying third-party consent searches is avoiding the inconvenience of securing a warrant, a departure from the warrant requirement is not justified simply because an officer reasonably believes a third party has consented to a search of the defendant's home. In holding otherwise, the majority ignores our longstanding view that “the informed and deliberate determinations of magistrates . . . as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests.”
8.7.2009 4:24pm
Oren:
Oh, to have Justice Marshall back ....
8.7.2009 4:29pm
einhverfr (mail) (www):

You academics may find this case interesting, intriguing, puzzling, troubling, whatever. Those of us who deal with these issues "in the pits" know that there is no way in hell that any court is going to suppress on these facts. They may have to twist the constitution into a pretzel, but they will find some way to hold the evidence in.


I hope not. Maybe Gant v. Arizona is evidence the Supreme Court is starting to take the exclusionary rule more seriously?

I see a couple specific issues with this case though.

In this case, the couple had reconciled the day before, and had not been living together immediately prior to that (and the searching officer knew these facts according to the majority opinion). It seems to me that given the on-again-off-again nature of the relationship and that up until the day prior she hand not been staying with the defendant, she shouldn't have been expected to be able to consent tot he search. Because the officer knew they had just moved back in together, he should have questioned the apparent authority.

A second issue however involves the SCOPE of the search even if the apparent authority was accepted. The firearms might be within the scope of the search but I am not sure the unmarked, unlocked containers of narcotics were. Certainly there isn't enough information for us to conclude that they were in her control, etc. Maybe this issue wasn't decided by the court?

What bothers me about this ruling is it suggests FORMER live-in girlfriends might have apparent authority after staying overnight ONE night even if they had been living separately for the last six months. That seems a stretch in this case which is not reasonable.

Now, for the defendant, I suppose if he had let her take her personal belongings with her, it would have drastically undercut the officer's case. However, really, this decision seems to suggest that apparent authority can be stretched so far as to render the 4th Amendment meaningless.
8.7.2009 4:29pm
einhverfr (mail) (www):
Oren:

Oh, to have Justice Marshall back ....


Both of them?
8.7.2009 4:31pm
Jay:
I'm fascinated that the outraged rants about rightwing judge shredding the Constitution and Angus's unexplained but apparently fervently held beliefs about what the Fourth Amendment requires can coexist peacefully with a lack of any constitutional citation for the exclusionary rule itself.

If you're going to rely on judges whose policy views mirror yours creating remedies you like in one decade, you can't be too suprised about the ensuing retrenchment when the other side's judges come to power in subsequent years.
8.7.2009 4:34pm
ShelbyC:

Has all the common-law jurisprudence on long-term live-in couples been abolished in the U.S.?




the fact that she was not given opportunity to dress or collect keys or id on the way out does not affect her right to return to her residence, and should not affect her ability to get back in with the aid of police to retrieve her personal belongings.


If it's not her property, and the cops know she doesn't have permission to be there, then absent some common-law or statutory right based on the fact that she used to reside there, she can't have appearant authority to consent to the search. And there might be such a right, but there's absolutely no discussion of such a right in the opinion.
8.7.2009 4:35pm
einhverfr (mail) (www):
ShelbyC:

Also it is far from clear to me that this would qualify as a long-term relationship. They hadn't been together for the six-month period prior to the search until the day before when they briefly reconciled. During that time, she had lived with her parents. Furthermore, regarding apparent authority, the police officers in question knew these facts.

This decision stinks. I hope the Supreme Court grants cert, because if allowed to stand it suggests that a couple which separated six months ago and got back together briefly for a day would grant apparent authority to the police for consent to search.
8.7.2009 5:40pm
einhverfr (mail) (www):
In short, even if the facts were simply as the Adler's post here suggests, and even if this was settled law (which I dont think it is, but IANAL), this decision STILL poses very serious issues with regard to 4th Amendment protections.
8.7.2009 5:42pm
PeteP (mail):
Angus - "If I've had a live-in girlfriend for 5 years, all her personal property is in the house, she comes and goes as she pleases, and calls it 'home', including contributing to the bills ( which are all in my name ), are you suggesting that she is not a 'resident' for purposes of eviction, or allowing the police in ? Are your saying you think I can just kick her out on a moment's notice as 'an unwanted guest' ?

This one isn't even as close at the first one. This one is a clear "Yes," of course you can kick her out at a moment's notice."

Oh, yeh ? You think it's that easy ? Ever try it ? Sometimes it takes FOREVER !!!! :-)

They keep coming back ... :-(
8.7.2009 5:46pm
Boblipton:
Can someone explain to me how, although the cops might have held a reasonable belief in the correctness of their search, the facts in the case of a warrantless search doesn't squelch the unlawfully obtained evidence? Or has the 'fruit of the poisoned tree' doctrine been abandoned in an effort to save us from ourselves?

Bob
8.7.2009 6:45pm
Dave N (mail):
I suspect PatHMV was referring to me when writing:
Meanwhile, I (and I'm pretty sure others who have commented supporting the dissent's position) am as conservative as they come on judicial issues, and have no problem saying that I think these two particular judges flubbed it on this one.
I am a pro-death penalty prosecutor and fairly conservative on a host of issues, including (and in particular) criminal procedure. The judges screwed this case up.

I would note that the evidence from the first (bad IMHO) search seems only tangentially related to the later sting operation that led to the ATF agent being shot. There is no indication that the results of the first search did anything more than cause the police to focus their attention on Penney.

The "fruit of the poisonous tree" might apply if the search was illegal, but that is not clear, given the exceptions to that doctrine and the facts as presented by the Court of Appeals.
8.7.2009 7:55pm
SuperSkeptic (mail):
See They Say's citation of the dissent in Illinois v. Rodriguez. Unfortunately, along the lines of other "good-faith exceptions for the warrant requirement, the basic test for the "apparent authority" here is, in Scalia-esque 4th amendment fashion: "reasonableness." It may be overly deferential to law enforcement, and I think that it is.

Even under such a reasonableness regime for cohabitating, jilted - or even recently abused - lovers, the decline in property rights overall in the home contributes to an easier finding that it's reasonable to give the 3rd party some sort of interest or license against the owner, as opposed to recognizing a strict trespass.

I'm with the dissenters on account of the fourth amendment a la Marshall in Ill v. rod.

There is also something to be said, regretfully, about the backflips trial and appellate judges will sometimes go through in order to uphold a conviction for someone, "they just know" is guilty, hence contortionist constitutional interpretations and the lack of affinity for the exclusionary rule.

Gant is a step in the right direction, where scalia's "reasonableness" attitude actually runs counter to police deference, but there needs to be more of that I believe. As hard as the job of local law enforcement can be, they need to work a little bit harder and stop cutting corners. Lawlessness in law enforcement erodes confidence of the citizenry in the rule of law as well.

Being anti-property and anti-fouth, I'm largely disappointed.
8.7.2009 8:40pm
David Hardy (mail) (www):
It may say something that, having read the first para of the post, laying out the facts, I knew immediately the outcome, without having the vaguest idea of the law in the area (haven't done criminal in decades). It was just a predicted application of the unwritten rule that "suppression motions are only granted if there is absolutely no way we can reason around them; law, and often facts, will be adjusted as necessary to achieve this end."
8.8.2009 2:37am
ArthurKirkland:
Jay:

The exclusionary rule protects the police, at least as much as criminals, as it vindicates the Constitution's warrant requirement. I also believe most people -- except straggling dead-enders from the Reagan administration -- recognize that elimination of the exclusionary rule would expose police officers, prosecutors and government entities to civil and criminal penalties for un-American and unlawful conduct. Even with the enormous head start law enforcement personnel would possess with most juries, that exposure would (justifiably) terrify police, prosecutors and their employers.

Please excuse me while I search the Constitution for the part that enables a police officer who conducts a warrantless entry and search to go home to his family rather than to prison, or to avoid conveying his assets to the citizen whose rights he has trampled.
8.8.2009 11:32am
Saurooon (mail) (www):
Hi,
Amazing! Not clear for me, how offen you updating your volokh.com.
8.8.2009 3:28pm
wondering (mail):
ANGUS: This is a little off-the-topic, but I was wondering:

I lived in my parents house for 19 years. I had no contractual or other legal rights there[...]other than what they chose to grant me. [...]Are you saying I was not a resident, and could not let the police in?

Correct. That is what I would say is consistent with the Constitutional protection of the 4th amendment.


Angus, you said you think that is consistent with the 4th amendment, but that was in the context of "who can grant permission to enter/search".

What about the context of minors being secure in their homes against warrantless seizures? Under your theroy, it seems a child would be left without any home to be secure in.
8.10.2009 2:11pm

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.