Why Jerkwads Go Free
Sometimes criminals must walk to maintain our Fourth Amendment rights
Wes Denham is the co-author of "Arrest-Proof Yourself" and author of "Arrested, What to Do When Your Loved One's in Jail." He is currently at work on “The Crime Wasn’t Murder: The Death of Trayvon Martin and the Prosecution of George Zimmerman.” You can reach him at wesdenham.com.
One of the ironies of law is that it is sometimes
necessary, for the upholding of sacred principle, to disculpate a scumbag in the prosecution of his scumbaggery. Thus, the Supreme Court will rule soon if a shotgun, held
to the heads of California citizens by Walter Fernandez so as to relieve them of their lawful goods, money and chattels, may be adduced as evidence to remand the aforementioned felon to an extended stay in a sunny Golden State prison.
While searching a neighborhood, LA cops knocked on Fernandez's door. He was, at the moment, rearranging his girlfriend's face into bloody hamburger. The cops rudely interrupted, then arrested him for domestic battery. They asked to search the place; Fernandez said no.
Once Walter was jugged, the popo returned and asked again. This time, the no-longer-hemorrhaging girlfriend said, "Come on in!" Cops recovered the shotgun, ammo and knife Walter used for his robberies. A judge tagged onto his sentence an additional 14 years, during which he will get to worry each day if an MS-13 banger will stick a shiv in his guts, then stir.
The point is this: Fernandez was a lawful tenant. He refused a search. The cops then entered, searched and seized without a warrant. If the state persuades the court that other people, who are neither co-owners nor tenants of your home, can waive your Fourth Amendment rights, we're cooked.
If a girlfriend or boyfriend can waive your rights, who else can? The plumber, the kids, some yob you let watch your tube because his flat screen's on the fritz? There's no end to this.
It gets worse. In Massachusetts, lawmakers, in their concurrent, consensual and concupiscent wisdom, want to authorize cops to make no-warrant, no-knock raids any time 24/7 in order to check if you have lawfully secured your lawful firearm in its lawfully mandated childproof box.
"Just checking, sir and ma'am. Got to protect the children. You can go back to sleep now."
In Washington state, legislators proposed a law mandating that, if you refuse a kiddie gun box check, and ask police to appear before a judge and obtain a warrant, you will serve one year in prison, where you can ponder your life to the desolate roar of the Pacific Ocean.
If cops can bust into your house to check your gun box, why shouldn't they check everything else while they're there? Do you use your spare bedroom for an eBay business that — gasp — is not licensed, permitted and zoned? Do you pop your corn in the trans-fatty oil of the coconut palm? (That's a no-no in New York.) Is that dog snoozing on your couch lacking a tag that attests to fees having been paid and licenses obtained?
Arrest the miscreants! Impound the pooch!
Steve Mosca, one of the best criminal defense attorneys in Jacksonville, noted this in the legal website Avvo's blog: "In this jurisdiction recently, a judge said it was OK for police to break open a safe in someone's home because, in his opinion, a warrant would have been issued if they had asked for one." Such reasoning makes search warrants, and judicial review of police, merely notional. There's no need for a warrant because cops can always get one if they want one!
The judge who issued that opinion should be chained to the light posts in the marbleized horror we call the Duval County Courthouse and given 10 lashes while a crier intones these words:
"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 the persons or things to be seized."
Many readers believe that the Constitution is a "living document." By this they imply that, having been written more than 200 years ago by badly dressed men wearing dreadful wigs and burdened by eyeglasses that didn't focus and ivory teeth that didn't chew, the Constitution may be ignored or finessed when inconvenient.
The razor edge of government is police. Government's desire to bend law in order to let cops slip the light reins of judicial review is disturbing. We all need cops the way we need air. We don't, however, need them ranging over the city uncontrolled, unjudged and unchecked, in the manner of the Golden Horde raging across the Eurasian Steppes.
Now and then, to keep our own doors on their hinges and our own homes unsearched, with all their embarrassing secrets intact, a piece of social garbage like Walter Fernandez needs to walk,
In Crime City.