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Supreme Court finds non-gay marriage, dog sniff right to privacy

Liberal trial lawyer Democrats, small government tea partier conservative Republicans, and U.S. Supreme Court Associate Justices Scalia, Thomas, Kagan, Ginsburg and Sotomayor quietly found common civil liberties ground during gay marriage week.

Observing the blanket press coverage of the recent week of oral arguments concerning California’s Proposition 8 and the federal Defense of Marriage Act before the nation’s highest court, one could be forgiven for thinking that one-third of America’s government only concerns itself with less than 2% of its citizens’ concerns. But, beyond the din of “mainstream” media’s declaration of the end of traditional marriage’s 5000 year run (despite the recent re-affirmation of same by more than 80% of the states) one could faintly hear an actual post-oral argument, 5-4 eclectic decision in Florida v Jardines that affirms the security of one’s person (gay or straight) and papers from unreasonable searches and seizures while presiding as king or queen (no matter the gender) of one’s castle:

Drug-sniffing police dogs have their place, the U.S. Supreme Court ruled. And it’s not on a suspect’s front porch.

The court today said officers typically need a warrant before taking an animal to the door of a house in the hope of detecting narcotics. The justices ruled on Feb. 19 that police officers can search someone’s car after a trained dog outside the vehicle alerts them to the presence of drugs.

Together, the decisions amount to a vote of respect for the abilities of police dogs — and wariness about their potential misuse. While the court has previously said officers can walk onto a suspect’s property to knock on the door, the 5-4 majority today said the use of trained dogs is different.

“When it comes to the Fourth Amendment, the home is first among equals,” Justice Antonin Scalia wrote. “This right would be of little practical value if the state’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.”

The justices were considering a bid by Florida officials to revive the prosecution of a man arrested after police raided a Miami house and found marijuana plants.

The Florida Supreme Court said prosecutors couldn’t use evidence obtained in the house because officers violated the U.S. Constitution’s ban on unreasonable searches.

Scalia was joined in the majority by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Stephen Breyer dissented.

In the latest in a series of “drug-sniffing police dog” cases, the dissenters essentially equated the use of a canine’s senses with that of homo-sapiens; but the majority requires the detection of drugs by the former only via a pre-sniff trip to the house search warrant supported by non-canine probable cause. The eclectic mix of justices from the left and right on opposite sides of each other also reflects some common ground upon which both small government tea partiers and ACLU civil libertarians can stand.

Spartanburg, South Carolina trial lawyer Andrew Johnson reacted to the increasingly rare ruling restricting the powers of the government thusly:

I was quite relieved the court did not allow probable cause for the search warrant of a home to be based upon a supposed alert by a dog. I’ve seen so much abuse of this procedure in the vehicle arena. A handler can make a dog alert (or claim it did) whenever he wants to. Allowing this practice would have essentially eliminated the Constitutional requirement for probable cause of a person’s home as it already has for vehicles.

This former liberal Democratic Party official and trial lawyer turned tea partier conservative Republican corporate counsel between immigration cases heartily agrees, and in our effort to bring you comprehensive coverage of the law in these United States between our own court proceedings, would return to the issue of gay marriage only to suggest that we doubt five of the above-referenced justices will impose same-sex marriage across the entire Fruited Plain by rejecting the will of a usually liberal Golden State electorate that wishes to keep “I do’s” exclusively between one man and one woman.

The only question unanswered by pro-gay marriage liberal Democrats obsessed with barren heterosexual couples’ that seek an equivalence with straights and libertarians pining for a day they can’t point to when government concerned itself not with marriage (civil marriage arose, partially, by the way, to accommodate the non-religiously betrothed); is how a Lesbian couple can ever consummate their union so that the Sword of annulment Damocles isn’t forever suspended above their necks?

What we do know is that any search warrant to discover such consummation evidence may not be based upon the sniff of a dog accompanying the police on a warrant-less stroll around the couple’s gay abode.

Mike DeVine

“One man with courage makes a majority.” – Andrew Jackson

Editor of Hillbilly Politics

Atlanta Law & Politics columnist at Examiner.com

Front page columnist for Liberty Unyielding and Western Free Press

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