Sunday, March 31, 2013

"When it Comes to the 4th Amendment, the Home is [Still] First Among Equals"

On March 26, 2013, in a short 10 page majority opinion, authored by Justice Scalia, the United State's Supreme Court again recognized the sanctity of our homes.  In Florida v. Jardines the government - based on an "unverified tip" - suspected the residence of Joelis Jardines was being used to grow marijuana.  The government followed up that "unverified tip" with surveillance which produced no unusual activity.  The detectives on the case then went up to Jardines' home with Franky, a drug dog.  Franky hit on Jardines' home - the front door to be precise.  On the basis of that information the government applied for, and obtained, a warrant.  Execution of the warrant revealed a grow operation, and Jardines was subsequently charged with trafficking in cannibis.  

At the trial court level Jardines challenged the search contending it was unreasonable under the Fourth Amendment.  The trial court agreed.  The court of appeals, however, reversed.  The Florida Supreme Court agreed with the trial court.  The case was appealed to the US Supreme Court.  In this opinion, the USSC answers the question of "whether the officers' behavior was a search within the meaning of the Fourth Amendment." Justice Scalia - for the majority - answers that question yes based on property grounds.   (Justice Kagan concurred to state that she believes the answer is yes based on privacy as well as property grounds.)

Some of the reasoning:

The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."  As the USSC noted yet again, the 4th Amendment establishes a simple baseline - when the government obtains information by physically intruding on persons, houses, papers, or effects a search within the original meaning of the 4th Amendment has undoubtedly occurred.  The curtilage of the home enjoys protection as part of the home itself.  Therefore, it follows that "the front porch is the classic exemplar of an area adjacent to the home and to which the activity of the home life extends." It is undisputed that the government was on the constitutionally protected extension of Jardines' home and that he had not - even implicitly - given them permission to be there.  Detectives and drug dogs are unlike "ordinary visitors."  They are not like "the Nation's Girl Scouts or trick-or-treaters."  There is no customary invitation to bring a trained police drug detection dog to explore the area around the home in hopes of finding incriminating evidence.  

"When it comes to the Fourth Amendment, the home is [still] first among equals."   

Sunday, March 10, 2013

On a Roll

I finished a DWI breath test jury trial last week.  "Not Guilty" is one of the greatest phrases ever spoken.  This is how it all went down:

On Monday, a panel of 18 potential jurors were called in.  6 jurors are needed for a misdemeanor case.  After I finished speaking with them, only four jurors were left who were qualified to serve.  The judge declared a mistrial and ordered us all back at 8:00 a.m. on Tuesday.  He said he would be calling in 24 potential jurors.  I asked the prosecutor if we could plead to obstruction of a highway.  She said no way.

The next day we got a jury.  The state's first witness was the fast food employee, a former army medic, who called the cops because my lady was throwing up drunk and shouldn't be driving.  She said my lady had driven on the curbs and parked across 3 parking spaces.  They played the 911 call.  Then 2 police officers testified that my lady was drunk.  Then the breath test operator testified that she was drunk.  Then the breath test technical supervisor testified that she would have had 3-4 drinks in her system at the time of the test and that the test was a .115.  On cross examination, however, he admitted that absorption is a process and that she definitely could have been under .08 at the time of driving.

We made closing arguments.  After an hour the jury came back with a not guilty.  I am so proud of my lady for having the courage to try the case.  I am getting her record expunged now.

As my dad would say, "Keep on keepin' on and mess with Texas..."