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Any “ordinary person of common sense” would quarrel with the majority’s take, he [Justice Alito] wrote
On the contrary, it is Mr Justice Alito who has lost all touch with common sense.
Supreme Court privacy ruling could impact case against man charged in Cleveland police officer's death
CLEVELAND, Ohio -- A U.S. Supreme Court ruling handed down this week could get to the heart of an issue central to the state's case against a man facing more than a decade behind bars in the 2017 hit-and-run death of Cleveland police officer David Fahey.
In the minutes after Fahey was struck and killed in January 2017, investigators scrambled to find the car. Dispatch broadcast a description relayed by a witness that a white Toyota Camry with possible beige or gold bumpers struck Fahey and headed west. The car had a partial plate that read "GTD."
Bangas told WJW Channel 8 in an interview the day after the incident that he saw the white Camry and its license plate, which began with "GTD" and decided that "the possibility is something to check out."
He said in a deposition that he walked "up along the side of the house" and up the driveway to get a closer look at the front of the car, according to Pagano's motion.
"Part of the officer's vest was located in the windshield," Bangas told the TV station. "Some of the paint of his reflective vest was on the hood of the vehicle."
I agree with Thomas. It was inevitable that as soon as the motorbike left the property it would have been stopped, searched and the offender arrested.
They call this "inevitable discovery" in Law & Order, the greatest show of all time ;)
Justice Thomas might have a point. A visitor from another planet might find it strange that the justice system seeks to regulate the behavior of the police by turning criminals loose.
Thomas is not the only legal thinker to question the exclusionary rule. Yale Law professor Akhil Amar has written very persuasively against the exclusionary rule. He correctly points out that it does not appear anywhere in the Constitution or in English Common Law (in fact, Britain still does not have an exclusionary rule). The rule is also seriously unbalanced as a prophylactic rule -- no one ever seeks to suppress exculpatory evidence, only inculpatory evidence. Thus, it does not protect the innocent from Constitutional violations because they have no inculpatory evidence to suppress; instead it protects only the guilty, because they are the only ones who benefit from the exclusion of relevant evidence that could be used to convict them.
Ultimately, what do we want introduced as evidence in our trials? The truth. And all of the truth. Anything less is a disservice to the public as well as the litigants.
I agree with professor Akhil Amar's reasoning on the basis of common sense. Why protect inculpatory evidence in plain view? Arguably the Suzuki in the driveway was in plain view. 30 feet is within normal vision. Archers have to shoot at target farther than a distance of 30 feet.
I am wondering if these days, search warrants could be obtained via electronic devices such as Texting. Texting alters nothing except in the speed the warrant could be obtained. Then everybody - the Rule, the police, the alleged criminal would all be pleased.
While implicit in your comment, it may be worth pointing out explicitly that there is a vast difference between admitting reliable evidence even if obtained through questionable police conduct, and admitting evidence -- like a coerced confession -- that is unreliable because of the way in which it was obtained.
Ashbird is correct that modern communications devices could make instant warrants possible. There is a danger, however, that the result might be the reduction of the warrant requirement to a formulaic process, devoid of real meaning but potentially fatal to the prosecution's case if all the hoops weren't jumped through in the proper order.
I remember reading a law review article suggesting that the original purpose of the Warrant Clause was not to enshrine warrants as a major feature in criminal investigations, but to circumscribe and restrict them, leaving the police with the necessity of defending the searches they conducted as reasonable under the circumstances. The definition of reasonableness would have to have been much broader than what is currently required for warrantless searches.
The author contended that the remedy for an unreasonable search should be a civil suit. This solution would have the advantage of providing recourse even if the subject of the search was not guilty of a crime -- assuming the limitations of Monell were lifted -- but I think that the current legal system, as a practical matter, is not well suited for the redress of grievances of this kind.
"there is a vast difference between admitting reliable evidence even if obtained through questionable police conduct, and admitting evidence -- like a coerced confession"
You are correct that there is a difference, but it is important to recognize that the two scenarios you describe are actually addressed by two different amendments in the Bill of Rights.
The obtaining of physical evidence via search (persons, houses, papers, and effects) without a warrant is covered under the Fourth Amendment. In contrast, the obtaining of testimony (verbal) from the accused is protected by the Fifth Amendment. The exclusionary rule(s) are applied in both scenarios, but choosing to not apply an exclusionary rule in a Fourth Amendment context would not require that it also not apply in a Fifth Amendment context. The reason for this is that physical evidence obtained under the Fourth Amendment is not any less probative or truthful just because it was obtained in violation of the warrant requirement. However, coerced testimony has a very high chance of not being trustworthy, therefore it makes sense to apply an exclusionary rule to the Fifth Amendment.
I don't disagree with you, and it's the kind of distinction courts love to make. However, while coerced confessions are definitely unreliable, coerced information that is established as true independently can be highly probative -- like where the body was hidden. I think this kind of evidence typically gets excluded as the fruit of a poisonous tree.
That is a correct observation, although the fruit of the poisonous tree doctrine also has its own set of exceptions that apply -- and "inevitable discovery" is one of them, as well as "independent discovery".
If, as stated, the motorcycle was "under a tarp," it hardly qualifies as "in plain view."
Thanks for reply, jouris.
My thought upon perusing the facts provided in the DiA report was given that the requirement for search warrant is probable cause to believe evidence of a crime may be found in the area a warrant, if issued, covers, a tarp covered motorcycle 30 feet away on an open driveway is arguably in "plain view". “Search” starts with removing the tarp. This is not to say the magistrate will grant the warrant. Perhaps not. A picture of the covered motorcycle will perhaps tell best (e.g., might the license plate be partly showing? O any special recognizable markings on the tires?). That was just a thought. But of course, then the issue becomes whether police's taking a picture of a "suspected object" itself violates the 4th Amendment rule on reasonable search and seizure. I have no answer for that.
I often wonder with the easy accessibility of camera on smartphones, which just about everybody walks around with one these days, how that might impact on the concept of "privacy" under the 4th Amendment guarantee against unreasonable search and seizure. Supposing it wasn't the police who took a picture of the motorcycle, but a third party bystander who happened to walk by and found the front of the house interesting (say it is painted deep purple and has the portrait of a mermaid on it; don't laugh, I have seen more unusual looking facades on houses than that) , snaps a picture of it and posts it on the internet, and the picture shows the street name and number and a covered motorcycle in it ? We know some decade-old crimes are now being solved by detectives who mine "non-traditional" sources for evidence of crimes and successfully convict? Thus far no claim of unreasonable search and seizure has reached the courts. I do foresee changes as the 4th amendment rule on search and seizure continues to evolve.
I don't have the experience to know how likely it is that the police could convince a judge to issue a warrant to let them look under the tarp. But until and unless they do, they can look at the tarp, but not under it.
The police are free to photograph anything that is otherwise visible to the general public. As far as what a magistrate will accept for the issuance of a warrant, the standard is pretty low -- probable cause is not a difficult burden to meet, generally. Whatever articulable facts led the deputy to that particular driveway in the first place would likely be more than sufficient, along with a photo of a covered motorcycle-shaped vehicle, to justify a warrant.
Thanks, Lex. I figured that too - a photo of the covered motorcycle-shaped vehicle plus articulable facts would likely be enough to satisfy probable cause for issuance of warrant. I have not directly worked in this area of the law and so I wrote deferentially. Good that you followed with your better experience.
In this case I agree with the Supreme Court . There should be a perimeter around one's house where searches without a warrant shouldn't be allowed. But question is if you live in a block of flats and you have a private parking lot should this be also covered?
And what if you can't afford the private parking and have to park out in the street in front of your frail cottage?
Are you suggesting that there should be a Gedanken perimeter of the law protection around the cottage?
In the case of a multi-unit dwelling, a renter does not have a reasonable expectation of privacy in the common areas of his apartment building. Since the parking lot is part of the common area open to all of the residents, it is not part of the "curtilage" of the private home.
The point is that this private parking lot is bought and is part of your ownership in the building so I don't see why it couldn't be a part of the "extended" curtilage within this block of flats.
It could potentially be, depending on the configuration and access allowed to the lot. The phrase to bear in mind is "reasonable expectation of privacy". That is the standard for assessing 4th Amendment claims. Regardless of whether you purchased a pro rata share of common space with your condominium, that fact alone has no real bearing on whether a warrant is required. If it is an open lot where visitors, contractors, deliverymen, and others can access on a regular basis, then there clearly is no expectation of privacy. In a gated-access parking that is separate from visitor and delivery parking, there might be an enhanced expectation of privacy; however, if 100 other condominium owners have access and can see your car and everything around it, then the expectation of privacy is lessened. A 4th Amendment analysis is a balancing test between your expectation of privacy and the compelling government interest at stake, and there are circumstances where the police could search your completely private, personal garage without a warrant. Those circumstances were not present in this particular case.
It seems that I agree with your point. I would be wonderful if privacy extended also to your parking.