Article 25

Ask an Unemployed Lawyer

In Uncategorized on 05/06/2013 at 4:09 pm


Police officers in Watertown, Mass., search house-to-house April 20 for a suspect in the Boston Marathon bombings. REUTERS/Brian Snyder.

If I knew you were coming, I’d have baked a cake

By U.L.

Dear Unemployed Lawyer:

A bomber is loose. A cop has been killed. Nobody is allowed outside. Cops go searching door-to-door. Do I demand a warrant?

Free Willy

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Constitution, Amendment IV)

Dear Willy,

 Generally speaking, when a person with a gun and a badge arrives at your door, you are in no position to “demand” dick. If you think, “But this is ‘Murica!” you watch way too much TV, and you’ve missed how far we’ve evolved since the English common law decreed that a man’s home is his castle and the King could not just barge into someone’s home without reason.

One could make the argument – and I think John Adams did at one point – that the American Revolution was rooted in what became our Fourth Amendment. In colonial America, judges could only issue “general warrants,” and they were excessively used by tax collectors to interrogate potential tax avoiders or search and seize any property deemed illegal or that had not paid the necessary customs tax.

Colonial merchants were especially pissed about this – seizing your goods or imposing extra taxes really cuts into profits. I mention this only to remind you that our legal system is not based on laws handed down by God or some romantic ideation of the dignity or “natural rights” of the individual. One could make a reasonable argument that, if our British overlords hadn’t messed with a man’s profits, we likely wouldn’t even have a Fourth Amendment.

But they did, and we do.

So we are left with the poetic paradoxical perturbation that the city that fomented a revolution several generations ago, based largely on illegal search and seizure, is the same city that gave police a standing ovation after they locked down the city and conducted warrantless home searches.

The Law is about exceptions, not the rule

Despite our collective worship of the Rule of Law, most people would agree that there are a whole lot more poor people than rich people in jail. This is not because of bribery (sure, that happens, but a system that relies on public confidence and compliance cannot withstand too much of that), but in part because money allows you to “buy time.” The more lawyers you can afford to spend more hours pouring over your case, the greater the odds they will find “exceptions.” Public defenders have a bad reputation not because they don’t know the law, but because they don’t have hours and hours to devote to your case to throw a bunch of exceptions on the wall to see what sticks.

A hypothetical: Let’s say you get a DUI. You pay a lawyer $1,500, and you’ll likely end up pleading out. Pay a little more, and she’ll throw in a pre-trial hearing to get some evidence thrown out, increasing your odds of a favorable outcome. Pay even more, and she may delay your case for months until she gets you a “visiting” judge, usually a fellow lawyer sitting in for a day. You are “buying time,” and the more you buy, the better your odds.

More about the exceptions in a bit, but it’s also worth noting something that’s easy to forget in our social media twitterverse: All meaningful communication requires context. That’s why there are so many damn lawyers. If it was all black-letter law, there’d be little to argue about.

The liberal court focused on “no warrants shall issue, but upon probable cause,” or basically by looking at the rights of the accused. That’s how it came up with things like “Miranda warnings,” which is more of a Fifth Amendment issue (your right against self-incrimination); but if you think of a confession as part of a search/seizure situation, you get the idea.

By contrast, today’s pro-law enforcement Supreme Court – especially Justice Nino Scalia, who brings this up a lot – focuses on the phrase, “unreasonable search and seizure.” Instead of asking, “Should the cop have a warrant?” the question becomes “Was the warrantless search reasonable?”

A local case I talked about in an earlier column is Kentucky v. King, where police knocked on the wrong door, heard movement inside the apartment, busted in, found drugs and arrested people. The state supreme court overturned the conviction, based largely on asking the question, “Should the cop have a warrant?” and answering yes, he should, and they obviously did not, because they were at the wrong place. (See “Here’s a Clue: Never Consent,” issue of Nov. 1, 2011.)

But when the federal supreme court overturned it again in 2011, it did so because it found the police actions reasonable. It didn’t matter that they were at the wrong house, or that they had no probable cause to believe illegal drugs were there. Just by hearing people move around after the knock, the police could reasonably assume evidence was about to be destroyed, and so they reasonably busted in without a warrant.

So you think you’re a patriot?

We haven’t done a quiz in a while.

Bobby Joe Norwood is beating the hell out of his wife, the neighbors hear her cries and call the police. Bobby Joe answers the door and tells the police everything is fine, and they can’t come in without a warrant. What do the police do?

A) Go back, find a judge and get a warrant to search for his wife; B) Compliment Bobby Joe on his knowledge of the Constitution, and go out for some coffee; C) Go in and look for the wife; and when they find her hurt, add an obstruction-of-justice charge to the Bobby Joe’s domestic violence charge; D) Ask Bobby Joe if he owns a gun before deciding if they need a warrant or not.

Not only is the correct answer C, but would you really want it any other way? Do you want the cops to spend a half-hour or more looking for a judge and a warrant while Bobby Joe shows his wife how much he loves her? This is known as a “public safety” exception to the Fourth Amendment – if the life of an officer or another person is in danger, it’s reasonable to expect the police to act without a warrant.

There are many other exceptions to the warrant requirement. Public safety is an “exigent circumstance,” but there are others – for example, if the police are in “hot pursuit” or are afraid any delay might lead to the destruction of evidence. If you give consent, of course, you’re screwed. If someone else at the house gives consent, you’re screwed.

But what if you allow them in your house to search for a terrorist, and the police see a bag of weed on your coffee table? Well, then you have the “plain view” exception, which means the police can confiscate it and charge you, even though they’re not looking for dope, or you, and they have no warrant. See how that works? It wouldn’t be reasonable to expect police to see some suspected contraband and not confiscate it and make an arrest.

That said, of course you should never, ever consent to a search – the police are not your friends in that situation, and you have nothing to gain and everything to lose by consenting to a search (this applies to giving them information, including blowing into Breathalyzers). Like it or not, it’s an adversarial situation. It’s State v. Bobby Joe Norwood. Never cooperate with an adversary. If we still had a draft, people might understand that better.

But you also have to use some common sense. I kinda hate saying this, but given your question, the best answer would be something to the effect of “I do not give consent to a search, but I do not intend to obstruct or interfere with your official business,” and then step aside and let them do their thing. Just try to remember to put that bag of weed in a drawer first – they won’t be looking for that.

In other words, being a dick is generally a bad idea, and that is especially true in dealing with our justice system. If that offends you, or you think we’ve gone too far in the wrong direction, that expectations have become unbearably high that you are to shut up and be a good consumer, well, I have sympathy for that.

But if you want something different, well, you need to talk to John Adams about that. In an age when we spent billions just on a new building for Homeland Security, I don’t think we’re going back.

Never take the advice of an Unemployed Lawyer. Always consult with an attorney for any legal advice in your situation. If, however, you want to ask, write to



Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: