Scalia Dissents in Fourth Amendment Cases

Scalia dissented in Navarette v. California, 134 S. Ct. 1683 (2014). In Navarette the court held that the Fourth Amendment tolerated a warrantless traffic stop where the officers said they stopped the truck because it “matched the description of a vehicle that an anonymous 911 caller reported as having run her off the road” and “as the two officers approached the truck, they smelled marijuana.” The majority concluded “under the totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated.” In a powerful dissent, Scalia referred to the logic of the court’s opinion as a “freedom-destroying cocktail” that provided law enforcement with too much leeway in stopping motorists based on “anonymous claims.”

Scalia also dissented from the Court’s decision in Maryland v. King, 569 U.S. 435 (2013). In King, the Court denied a Fourth Amendment challenge to the taking of a DNA sample from inside the mouth of a person as “part of a routine booking procedure for serious offenses.” Scalia wrote, “No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. … That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.” Scalia continued: “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane …, applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Justice Antonin Scalia – The Ric Flair of the Criminal Defense Bar

“I ought to be the darling of the criminal defense bar,” Scalia once said. “I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.” Scalia was a jurist with a fidelity to what he dubbed the Constitution’s “original meaning” as was reflected in the written text.

Originalism, as applied by the late Justice Antonin Scalia, was a theoretical push back against the notion of a “living and evolving Constitution.” Originalism, generally associated with conservatism, compels its adherents to interpret the Constitution according to what its words meant at the time they were adopted. Originalism traces its roots back to Judge Robert Bork. In 1987 President Ronald Reagan nominated Bork, a former Solicitor General and Yale Law Professor, to the Supreme Court but the Senate rejected his nomination. Conservatives contend Bork was denied his rightful position on the Supreme Court by liberals bent on warping constitutional language for partisan purposes.

Despite its wholesale rejection by liberals and progressives, originalism has done more in the last two decades to secure constitutional rights of the accused than any well-meaning progressive activists or bipartisan reforms. Originalist judges ascertain constitutional meaning from a host of sources, from consensus historical background materials to dictionaries and grammar books issued at the time of adoption. By analyzing the text in this fashion, judges stay faithful to the actual meaning of the constitutional provision, thereby conferring legitimacy upon those decisions.

The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

In Crawford v. Washington, 541 U.S. 36 (2004), writing for a 7-2 majority, Justice Scalia interpreted the Sixth Amendment’s confrontation clause— “to be confronted with the witnesses against him”— to mean what it says: “[T]he Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence, but about how reliability can best be determined.”

I like to think in his chamber, after writing his opinion, Scalia would channel his inner Ric Flair and exclaim…..

Scalia Series (Sticks it to the cops) - United States v. Jones, 565 U.S. 400 (2012)

In United States v. Jones, 565 U.S. 400 (2012), Justice Antonin Scalia wrote for a unanimous court suppressing evidence obtained when the DEA installed a GPS tracking device on a vehicle in order to surreptitiously monitor a suspect's vehicle's movements. 

After arrest the suspect moved to suppress evidence uncovered as a result of the warrantless electronic surveillance. In granting the motion to suppress the court held that the warrantless installation and subsequent electronic monitoring of the vehicle's movements was a search under the Fourth Amendment. Since there was no warrant, the monitoring was an illegal warrantless search, ergo fruits of that illegal search, that is, where the suspect had gone while being electronically observed and any evidence the police subsequently derived from that information, was tainted and therefore had to be  suppressed.  

You need to celebrate your anniversaries...

Antonin Scalia, One of Liberty’s Great Champions

Justice Antonin Scalia (1936-2016) was an associate justice of the United States Supreme Court from 1986 until his death in 2016. Scalia may have been a social conservative and a scourge to cultural liberals and the liberal progressive movement, but to me he was a giant, a champion of the criminally accused. In this blog I will comment on the opinions and writings of this extraordinary great supreme court justice, one of liberties great defenders.

The case I am going to discuss today is Kyllo v. United States, 533 U.S. 27 (2001), which is a great 4th Amendment case. It came at a time when there was widespread and indiscriminate police use of helicopters and thermal imaging devises to find indoor marijuana grows.

Scalia writing for a 5-4 majority held that where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant. Because there was no warrant obtained before using a thermal imaging devise to scan Kyro’s triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growths, the information obtained was tainted fruit and a subsequent warrant was bad and evidence obtained had to be suppressed.