I’ve been gone awhile so I thought I’d at least pop in to say hello. It seems I’ve discovered a new (but unsurprising) aspect to my personality: I get blog block. When I’m writing every day, I find I have more and more to say. But when I take several days off, I lose the inspiration. Then I forget how to get it back. I’m sure other bloggers have this problem (which explains why it helps to have a gang of co-bloggers.) In the hopes that others might share their recovery techniques, I thought I’d describe how I’ve attempted to get back in the saddle. I spent several hours this evening reading other blogs. (I found Law and Letters to be most helpful. Belle offers a particularly nice mix of academics and introspection.) I read the Supreme Court’s opinion-o-the-day (thankfully, a criminal procedure matter.) I waited for a fabulous new idea, but none was forthcoming. I ate M&M’s, left over from Halloween, and fortune cookies. (There really are mysteries in the pantry!) And I did what any person in my shoes would do. I attempted to go to sleep.
Thanks to the desperate cries of my sleeping baby daughter, rest was not an option. So I trudged back to the computer with one small objective: to acknowledge that the Supreme Court done good yesterday. In the Georgia v. Randolph decision, a five vote majority limited the ability of police to search a house when two people are at the door. In this case, a matter involving an estranged married couple, the wife granted consent to search while the husband refused entry. The officers acted on the consent of the wife and ignored the husband. They found drugs inside.
As usual, Orin Kerr offers a very thoughtful analysis and taxonomy of the opinions. This is a very pleasing opinion to me. First off, it is in accord with my criminal law libertarian values. I operate on the assumption that police ought not be breaching the privacy of a person’s home except in the narrowest circumstances. But it also makes me happy because Breyer did not take Roberts’ bait and conclude that the need for entry in cases of domestic violence requires a degradation of personal privacy under the Fourth Amendment. In the past, Breyer has shown a notable lack of interest in a robust Fourth Amendment. (I’m thinking of his approval of suspicionless drug testing of students in non-athletic extracurricular activities in Board of Education v. Earls.) In addition, the voting alignment suggests that Kennedy will continue to operate independently, nothwithstanding the arrival of a new true-believer.
This case may be fairly consequential, but in a different way than Roberts suggests. As a public defender, I discovered that a surprising number of people call the police to manipulate friends, neighbors, and loved ones. To be sure, most 911 calls are legit. But sometimes a call to the police is simply punishment for someone else’s perceived misconduct. “You cheated on me? Fine. I’ll call the cops.” This decision may limit the effectiveness of these calls. Or perhaps KipEsquire is right: the police may manipulate circumstance to move the objecting resident away from the door.
I hope the blog block has been broken. Perhaps tomorrow, when I wake up, I’ll have a genuine epiphany. Or maybe I’ll just update the lateral moves list!