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A man’s home is his castle, judge.   Do not decide Fourth Amendment cases on opportunistic grounds 

On Behalf of | Aug 9, 2015 | Firm News

Supreme Court Justice Oliver Wendell Holmes was traveling by train to Washington, D.C., one morning nearly a century ago when a conductor asked for his ticket. Holmes searched high and low for it until the conductor reassured him, “Don’t worry about your ticket, Mr. Holmes. We all know who you are. When you get to your destination, you can find it and just mail it to us.”

“My dear man, the problem is not my ticket,” quipped Holmes, who was renowned for his quick wit. “The problem is…where am I going?”

I have always wondered where judges are going when they decide a legal issue in a case.  I used to believe when I was a young lawyer that judicial opinions were examples of scientific reasoning.  Instead of a preconceived answer, when presented with a legal question in a case, I imagined a judge would sit among piles of law books, reading past opinions written by Olympians like John Marshall Harlan I, Oliver Wendell Holmes, Benjamin N. Cardozo, Louis Brandeis, Felix Frankfurter, Thurgood Marshall, Robert Jackson, Tom C. Clark or William Brennan.  Only after this time consuming legal research would an answer be arrived at with a legal decision written.

Now when I read new judicial appellate opinions, I just look at the name of the judge who wrote the opinion.  That usually tells me how the case is going to be decided.  The belief that a judge actually had no preconceived notion of what the answer should be to a legal question posed in a case has long since been lost by me.  To use the words of Justice Frankfurter (a conflicted judge who wrote an article shredding the case of Sacco and Vanzetti, helped found the American Civil Liberties Union, hired William Thaddeus Coleman as a law clerk, the first African American to serve as a Supreme Court law clerk, but had no toleration for Justices Black and Douglas and turned down Ruth Bader Ginsburg for a clerkship position because of her gender) judges too often start with a result to achieve so as to end up writing an opinion that is “shoddy,” “result-oriented,” and “demagogic”.

With this view in my mind, I just read an interesting article in the July/August 2015 Wisconsin Lawyer entitled, “Ditch the Canons of Construction” which advocates getting rid of the legal rules used to interpret ambiguous statutes.  Eric G. Pearson, an experienced appellate lawyer, correctly determines that “[t]he well-documented problem with cannons is that it’s often possible to find one to support any position.  And frequently they conflict, so that their use seems opportunistic.”

Now that is a mouthful!!  I am no sophisticated appellate lawyer like Mr. Pearson, but it seems to me that if you accept his legal reasoning, a recent decision by the Supreme Court is in deep trouble.  The rule which Mr. Pearson lays down is that if there are two or more legal principles that can support any position and conflict, their use is opportunistic and they should be “ditched.”

Before going further, indulge me for a bit of American history.  As the American colonies grew in importance and profitability the British government attempted to make American trade profitable to British merchants by interfering in the government of the colonies. The colonists disobeyed the navigation laws and Britain ‘turned a blind eye’ due to its policy of Salutary Neglect. However, the benevolent period of Salutary Neglect all changed after the French and Indian War (aka Seven Years War 1755-1763) when the British were left with a massive war debt. To pay the war debt the British ended their policy of Salutary Neglect in the colonies. The British intended to end illegal trading, enforce the Navigation Acts and impose new taxes and the Writs of Assistance, or search warrants, would help them to do this.

With the death of King George II in October 1760, all Writs of Assistance were set to expire on 25 April 1761 and new writs had to be obtained from the new king. The legality of the hated Writs of Assistance and the search and seizure powers of the King were challenged by a group of 53 Boston merchants, represented by James Otis. A countersuit was filed by a British customs agent called James Paxton, and together these are known as “Paxton’s case”. The case was heard on Tuesday, February 24, 1761.  James Otis argued that British custom officials armed with a Writ of Assistance:

“…may enter our houses when they please – may break locks, bars and every thing in their way and whether they break through malice or revenge, no man, no court, can inquire…”

At the trial James Otis argued that the Writs of Assistance were a form of tyranny. He coined the phrase “A man’s home is his castle” to describe the sanctity and privacy that a citizen deserved from his or her government.

“…one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle…”

James Otis lost the case relating to the Writs of Assistance but he impressed the colonists and prominent leaders such as John Adams. John Adams later said that the role of James Otis in contesting the British sovereign’s power and the Writs of Assistance was:

“…the spark in which originated the American Revolution …. breathed into the nation the breath of life”.

Fast forward to 2015 and Walter Fernandez.  Walter Fernandez flatly told Los Angeles police that they could not search his home without a warrant, saying, “You don’t have any right to come in here. I know my rights.”

Nonetheless, our United States Supreme Court ruled Tuesday that Fernandez’s right to keep police out ended when he left the premises — even though that was only because police had arrested him and taken him to the station.

Justice Ruth Bader Ginsburg dissented in Tuesday’s ruling, and was joined by Justices Sonia Sotomayor and Elena Kagan.  Ginsburg quoted the late Justice Robert J. Jackson’s observation that the warrant requirement ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”  She added, “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.”

Recall Mr. Pearson rule that if there are two or more legal principles that can support any position and conflict, their use is opportunistic and they should be “ditched.”  This leads me to conclude that the US Supreme Court’s Tuesday opinion is “shoddy,” “result-oriented,” and “demagogic” and the Supreme Court’s opinion should be ditched.

I stand by the Fourth Amendment and its history, however, even if the Supreme Court does not.