Judge Alito and Search Warrants

The Supremes have now gone and kicked aside the requirement for search warrants in pursuit of criminals. A recent case in which police were supposedly pursuing a criminal led them to a closed door in which they said they smelled marijuana, and heard noises of the person inside possibly destroying evidence.

The Supremes have ruled that this is permissible, since the evidence may have been destroyed by the time a warrant was obtained. Was there probable cause? Well, if the police did indeed smell marijuana, certainly they had right to suspect a law was being broken. Were they of necessity restricted to waiting for a warrant?

The answer is both Yes and No, depending on which view you have of the Constitution:
1.More recent interpretations of the 4th Amendment, involving exclusionary rules, or
2. The original intent and meaning of the 4th Amendment as intended by the founders.

Did the founders ever intend that a person could hide in his home if he committed a crime, while they had to wait for a warrant to obtain evidence of a clearly committed crime?

NO. The wording of the Amendment is quite clear:

“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 persons or things to be seized.”

The issue is not about warrants, but the first part of the amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, shall not be violated..”

If the people had the right to be secure in their persons, houses, papers, and effects, how is that right violated?

Actually, there is only one way it can be violated, and that is by making a law that creates a crime of itself.

If a person, residing in the privacy of his home, harming no one, commits an act that is declared criminal of itself, then the police are empowered to kick down doors if necessary to apprehend the criminal.

Can this be done, by the Constitution? Can the legislature create a crime simply by making an action in which no one is harmed criminal? If they can, then the legislature has the power to incriminate any person at a majority whim, and then can pay a policeman to act as the accuser of the defendant.

Let’s see what Justice Joseph Story says about this in his commentaries. Keep in mind that Justice Story was appointed as Justice by President James Madison, also known as the father of the Constitution, so Story should understand the original intent.

“Formerly, search warrants, in a general form, were issued from the State Department in England, authorizing officers to search houses and persons, without naming any persons or places in particular, so that, under color of such warrants, every man’s house in the kingdom might, at the mere discretion of such officers, be searched, without any ground of accusation. Such warrants were, however, held illegal by the courts of justice in England, and this amendment(4th Amendment) not only pronounces them illegal, but prohibits congress from passing any laws to give them effect”.

If a law makes an action criminal of itself, it then acts as a warrant justifying police enforcement of that act.

Can this be done by congress? In a word, HELLNO.

First of all, we can see from reading such treatises as the commentaries of St george Tucker, Justice Story, Chancellor James Kent, and the SCOTUS decisions such as United States vs Aaron Burr, along with Calder vs Bull, that SCOTUS has no jurisdiction over common law in criminal cases.

Chancellor James kent, a highly respected legal expert, contemporary of Joseph Story, writes:

“The United States, in its national capacity, have no common law, and their courts have not any common law jurisdiction in criminal cases”.

He further writes:
“34th section of the Judiciary Act ‘Trials at common law’ was not applicable for crimes. It applied to civil suits…In a great variety of cases, arising under laws of the United States, the will of the legislature cannot be executed unless by adoption of the common law”.

So, what does this have to do with anything? Well, what was understood by the colonists has been ignored and blurred by generations of lawyers and statists over the past two centuries. The function of common law is found in the 5th and 14th Amendments of the US Constitution under “due process”:

“(no person shall) be deprived of life, liberty, or property, without due process of law…”

So? Here is the very important point: due process of law is common law, not US Constitutional law.

This is pointed out clearly by Justice Story:

“The other part of the clause(due process) is but an enlargement of the language of Magna Carta: ‘Neither will we pass upon him, or condemn him, but by the lawful judgement of his peers, or by the law of the Land’. Lord Coke(Chief Justice of Common Pleas of England) says, that these latter words ‘by the Law of the Land’ mean, by due process of law, that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law. So that this clause, in effect, affirms the right of trial, according to the processes and proceedings of the common law”.

As James Kent has shown, there is no SCOTUS jurisdiction over common law, and no person can be deprived of life, liberty, or property, but by due process, which is clearly defined as common law.

So, constitutionally, who has the jurisdiction over common law? We can turn to “Federalist 45” and see what James Madison, the “father” of the Constitution, has to say:

“The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…”

Notice that; “lives, liberties, and properties” will be reserved to the states. Now look at the due process clause of the 5th Amendment again:

No person shall be deprived of life, liberty, or property, without due process of law(common law). Criminal jurisdiction over common law was reserved to the states! This is the plain statement of James Madison, combined with the 5th Amendment.

But doesn’t SCOTUS have appellate jurisdiction over common law? Can’t it reverse state decisions regarding common law jurisdiction? Again, in one word, HELLNO.

Here is what Justice Story writes:

“An appeal is a process of civil law origin, and removes a cause entirely subjecting the fact, as well as the law, to a review and a re-trial. A writ of erroris a process of common law origin. As Story points out, the colonist got really upset about the phrase in Article 3 of the Constitution that “The Supreme Court shall have appellate jurisdiction both as to law and fact”.

The understanding of the colonists was that common law is superior to civil law. This underastanding, in fact, was derived from Blackstone and early writers on common law, such as Edward Coke.

Blackstone writes:

“For the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom; they are no more binding in England than our laws are binding in Rome…Because it is most plain that it is not on account of their being written laws, that either the canon law or the civil law have any obligation within this kingdom: neither do their force and efficacy depend on their own intrinsic authority, which is the case of our written laws, or acts of Parliament. They(canon and civil laws) bind not the subjects of England, because their material were collected from popes or emperors, were digested by Justinian (Justinian Code), or declared to be authentic by Gregory. Those considerations give them no authority here”

Quite simply, Justinian Code, corpus juris civilis r laws originating in Rome, k nwn generally as civil law, had no authority over common law.

This is what the colonists understood, and they rejected any appellate power of the Supreme Court over common law. For that reason, they approved the 7th Amendment:

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States(federal courts) than according to the rules of the common law.”

Appellate power was restricted to civil law.

From this perspective, therefore, the recognized right of the people to be secure in their persons, houses, papers, and effects, were not to be violated. Violated how? The Supreme Court could not intervene in common law decisions regarding criminal law. No federal warrants could issue, unless there were specific names of places to be searched for specific reasons. IOW, the federal government had to have permission to search any person regarding a criminal act!

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