by TChris

When the police want to search a residence, a savvy occupant will just say no -- at least when the police have no search warrant. But what if the police keep asking residents until they find someone who says yes?

The U.S. Supreme Court said on Monday it would decide whether one occupant may give the police consent to search a residence, even though the other occupant already has objected.

Scott Fitz Randolph's wife called the police to report a domestic dispute. She told the arriving officers that Randolph had drugs on the premises. Randolph refused their request to search for the drugs, so the officers asked the wife, who consented.

by TChris

At least 23 states have laws that require police officers to arrest a person accused of domestic abuse if they have probable cause to do so. Mandatory arrest laws were enacted to correct a perceived problem -- the willingness of officers to drive an accused abuser around the block to let him "cool off" before returning home, rather than taking him to jail. In practice, the laws often result in arrests that accusers would prefer not to happen. Accusers who call the police hoping that their spouses will be lectured or driven around the block to "cool off" are frequently surprised when they find themselves driving to the police station (or a courthouse) to post bail for the spouse they've inadvertently caused to be arrested.

The value of mandatory arrest laws is debatable, particularly when police aren't required to arrest individuals who probably committed much more serious crimes. The laws put the police in a tough position. A wife who calls the police expecting a "cool him off" response may be shocked to learn that the police, as a result of her call, will cart her husband off to jail, and may beg the police not to make an arrest. The officer then confronts a difficult choice: disregard the law and honor the wife's request, or follow the law and make a bad domestic situation even worse.

The Supreme Court heard argument today in a case that asks whether the police violate the Constitution by disregarding a mandatory arrest law. The facts of the case are horrific. Jessica Gonzalez told the police that her daughters were missing, probably abducted by her estranged husband in violation of a restraining order that barred him from contacting the children. The police took no action.

by TChris

The Attorney General of Kansas, Phill Kline, is acting as an anti-abortion activist rather than the state's chief law enforcement officer. (TalkLeft background here.) And he's willing to undermine the Constitution and the privacy rights of patients to get what he wants.

What he wants: records of abortions performed on more than 90 patients in two Kansas clinics. Kline claims the records may reveal evidence of a crime, although the nature of his investigation is elusive. He couches the effort in appealing terms: a search for evidence of child molestation. The records, he claims, may show that girls too young to give legal consent to sex were victimized by older men. But the records are more likely to show that the underage girls themselves committed crimes by having sex with underage boys. And the physician-patient privilege that Kline wants to thwart is designed to encourage patients to share just that kind of personal information with doctors, free from fear that a crusading prosecutor will obtain and use that information against the patient.

That Kline isn't out to protect kids is clear from two facts.

A report scheduled for release Friday blasts President Bush's "No Child Left Behind Act" and argues it is unconstitutional. In a 77 page report by the National Conference on State Legislatures,

....a bipartisan panel of lawmakers drawn from many states yesterday pronounced it a flawed, convoluted and unconstitutional education reform initiative that had usurped state and local control of public schools.

Among the findings:

Sometimes the Constitution makes strange bedfellows. As is the case with this book review of Fox News' Senior Judicial Analyst Andrew Napolitano's book, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws, by Cato director Timothy Lynch, in of all places, the right-leaning American Spectator, and TalkLeft, a liberal, criminal defense-oriented site.

From Lynch's review:

NAPOLITANO HAS EARNED RESPECT from lawyers across the political spectrum because of his nonpartisan approach to legal and constitutional analysis. He has wisely brought the neutrality that everyone expects from a judge to his job as a commentator at the Fox Network and to his book about the Constitution. He calls 'em as he sees 'em. Thus, in some places he criticizes Janet Reno; in other places, John Ashcroft. And it is refreshing to see a judge defend not only the First Amendment, but the Second Amendment as well. Napolitano reminds the reader that we ought not to take a cafeteria approach to our constitutional liberties. Hear, hear.

What makes you more likely the target of a drug cop on the Interstate? Texas Officer Tracey Freeman says,

[he]targets the drivers who go 5 mph over the speed limit, or who change lanes without signaling first. He checks to see if people's license plates are lighted, or whether they're wearing seatbelts.

So where do the dogs come in?

After stopping a car for a minor violation, Freeman, Gregg County's crime interdiction officer, walks up to the front passenger's window. He checks insurance and driver's license, studies the car's occupants to see if they're nervous, and he smells for marijuana. He introduces himself and asks where they're headed.

If Freeman thinks they're hauling drugs, he'll ask to search the car. In three years fewer than 10 people have refused. But if they do, or if he can't find anything and is still suspicious, he brings in Luctor the drug dog.

The Supreme Court is set to deliver a decision on drug dogs this term.

The Bush Administration gave $1.7 billion to groups it considers "faith-based" in 2003. Some of the groups say they are not religious, but others are groups to whom prayer and spirituality are central to their existence.

Other grant recipients are religious, offering social service programs that the government may have deemed too religious to receive money before President Bush took office.

Visitors to TMM Family Services in Tucson, Ariz., which received $25,000 for housing counseling, are greeted by a photo of Jesus and quotes from the Bible.

"We believe that people being connected to the faith of their choice is important to them having a productive life," said Don Strauch, an ordained minister and executive director of the group, which offers a variety of social services. "Just because we take government money doesn't mean we back down on that philosophy."

....Elected with strong support of religious conservatives, Bush came to office promising to open government's checkbook to religious groups that provide social services. Often, Bush says, religious groups do a better job serving the poor.

Civll liberties groups criticize the donations, saying that the U.S. should not be funding prayer as it endangers the constitutionally required separation of church and state. We agree.

Finally, the Justice Department and TalkLeft agree on something: That the Second Amendment conveys an individual right to keep and bear arms. This is the conclusion reached in a 93 page report written by DOJ's Office of Legal Counsel that was written last August but only released this past week. From the report itself:

The Second Amendment to the U.S. Constitution provides:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The report examined the three principal views of the Amendment: The individual view, collective view and an intermediate one:

Sen. Orrin Hatch (R-UT) has been pushing to amend the Constitution to allow persons born outside the U.S. to become President. Yesterday, the Senate held its first hearing on the issue. Many believe this is a political move to allow Gov. Arnold Schwarzenegger to run for President. Is that a reason to defeat the measure?

Half a dozen members of Congress and three constitutional scholars testified in support of the idea, with some telling poignant stories of young children, adopted as infants from foreign countries, being unable to dream of becoming president one day. But the image, mostly unstated, that was hanging over the hearing and the whole nascent congressional movement was the well-sculpted one of California Gov. Arnold Schwarzenegger. He's been a U.S. citizen since 1983, fulfilling the 20-year requirement Hatch is proposing.

"This hearing would not be complete if the name of Arnold Schwarzenegger were not mentioned at least once," testified Rep. Dana Rohrabacher (R-Calif.), a close friend of Schwarzenegger's who introduced a companion version of Hatch's proposal last month in the House.

Amending the Constitution should not be done lightly. What is the history behind why the framers included the prohibition? Should we change it? Here's what one scholar said:

The native-born provision was inserted in the Constitution because of fears that a European aristocrat with allegiances to another country could buy his way into control of the United States, said Akhil Reed Amar, a professor of law and political science at Yale University. The requirement is outdated and unfair, he said.

Is it my imagination or are our Fourth Amendment protections shrinking? A U.S. District Court in Utah is considering a challenge to searches of the doorknobs to our homes. It's a tactic being used around the country and it's called the Ionscan test. Police swipe a doorknob with a drug-detecting cloth and if the cloth then tests postive for microscopic particles of a controlled substance, they tell a judge they have probable cause to get a search warrant. Do they? It's up in the air right now.

The defense argues the doorknob to one's home is a protected area:

Lawyer Jon Williams, who is representing Troy Miller of South Salt Lake city, said in a brief that the front door is protected from unreasonable searches. He added: "The doorknob is the most sacrosanct part of the [home]. Its sole purpose is to gain entry."

From the American Constitution Society Blog on what happens when medical marijuana collides with federalism:

Last December, the Ninth Circuit held in Ashcroft v. Raich that federal anti-drug laws do not apply to locally cultivated cannabis. Their decision, which is now under review by the Supreme Court, effectively decriminalizes medical marijuana use in California, so long as that use complies with that state's Compassionate Use Act. Some conservative activists immediately condemned the decision as another example of liberal judicial activism from a court that's been "overturned more times than pancakes at IHOP." In truth, however, the odd thing about Raich isn't its activism, but instead its rigid compliance with prior Supreme Court precedent.

Julian Sanchez of Hit and Run reports on law enforcement's flavor of the month--drugwipes. Drugwipes are swabs that an officer wipes across a surface and puts in a vial. A color change signals to the officer that trace amount of amphetamines, cannabis, cocaine, and opiates are present. They are being used in schools and elsewhere without search warrants. Julian writes:

A New York Times piece this weekend reports on a hand-held device called DrugWipe that can detect minute residual particles of the most common illegal drugs. Schools are apparently attracted to it as a less intrusive way of "screening" students. I have my doubts: Most people know the factoid that a large proportion of the currency in circulation has detectable traces of cocaine; I'd bet little bits of various drugs are pretty common in our environment.

The interesting question is this: We know that a dog sniff doesn't even count as a search under current Fourth Amendment jurisprudence. ....The question then is: What happens when these things become so cheap that they're standard issue for cops, teachers, and possibly others? How long before suspicionless drug swipes are a routine part of a normal day?