There is a difference between incorporation and referencing the affadavit. As the majority stated, the Groh case indicates that any incorporation should be expressly and clearly made. That simply wasn’t the case here, the officers had specifically named only the suspect, and no one else, in the part of the warrant that listed who could be searched. The majority went on to state: “But this fact is actually unhelpful to the officers, since it demonstrates that where the face sheet was intended to incorporate the affidavit, it said so explicitly. As a matter of common sense, as well as logic, the absence of a reference to the affidavit must therefore be viewed as negating any incorporation of that affidavit” The majority felt that referring to the affidavit twice does not automatically incorporate the entire thing into the warrant.
You can’t have it both ways. Either the omission of the listing people present at the house was a clerical oversight, or it was intentionally done. And the idea that there wasn’t enough room doesn’t carry much weight with me because the officers and the DA prepared the warrant themselves. Any flaws are of their own making.
Look, I believe that the absence of clear, definite language incorporating the affidavit and allowing for the search of people present was inadvertant, and the police officers, and more than likely the magistrate, intended for the warrant to allow officers to conduct the search of people present. The problem is that the warrant didn’t say so on it’s face. The majority relied on pretty clear caselaw that, for good or ill, puts great value on the written word in warrants, even to the exclusion of the actual intent of the officers. In that sense, they are quite formulaic and technical. And many of your, and Alito’s arguments about the amount of space provided and the testimony of the officers, are good arguments about the reasonableness of the officers’ actions and their ability to have qualified immunity. It just doesn’t excuse their oversight in preparing the warrant.
I was, more referring to the comments by Mr. Moto, than Dewey. And Dewey does a good job of making Alito’s case. However, I think that rjung’s point was that Dewey did not do a very good job of outlining or explaining the majority’s opinion. So I thought I’d give it a go.
If you had read the thread a bit more carefully, you’d see that a description of the search was included in the decision. Maybe you should go back there and read that and then read my response, before you comment further. Might save you some embarrassment.
And do you realize that the unintended consequence of making minors ‘protected’ in this fashion is for crack houses and crack dealers to use kids as mules? Is that what you really want? That’s what will happen. Think through the consequences of your knee-jerk ‘icky’ feeling.
And if the warrant has to name a kid specifically, then crack houses will start dragging random kids off the street. A much better result, huh?
Or if the warrant just has to specifically say, “you can search any kids you find”, then pretty quickly ALL warrants will say this, and nothing will change.
Really, your whole argument is wrong on the law, wrong morally, and will lead to a worse outcome for children if adopted. You’ve hit the trifecta.
I do not buy your long chain of hypotheticals. At some point in it, weren’t monkeys supposed to fly out of your ass or something? That was an incredibly long-winded way to say “Boo!”
I can’t speak for you of course, but what would embarrass me would be to find myself advocating a position that leads logically and inexorably to endangering the lives of children by enabling crack dealers to use them as luggage.
That in and of itself is not news, but he wasn’t really thinking about the future with what came next:
Those words may come back to haunt him down the road, especially since I believe the Democrats will take the Congress and possibly even the White House in the next set of elections. What will he say then when the shoe is on the other foot?
If they take the Congress, they won’t have to worry. They won’t take the Senate, and so they will have to worry if a Democratic president wins next time.
I think I goofed in updating my prediction. The first one will probably turn out to be more accurate, although I don’t think Alito will even get that many (5) Dem votes in the Senate-- I think 3 at the most now.
As much as I thought Feinstein was admirably nonpartisan during the hearings, it’s disturbing to read what she said about her vote. She thinks he’s well qualified, but doesn’t like the rulings she thinks he might make. She wants an activist judge-- one who knows what his ruling will be before he hears the arguments. Of course, she didn’t vote for Robers either…
Imagine the fireworks if Stevens kicks the bucket while Bush is in office!
Sam, now I am on record as saying that the far right should be able to get their boy, and they will, but you are being a bit disingenuous here.
What did Clinton do? He went to Senate leadership and sent them people acceptable to them. He didn’t send up the most nominee most like to make liberal hearts go aflutter or most likely to make conservatives hearts skip beats. This was a very partisan divisive choice chosen to satiate his religious right flank and who they believe will be a conservative activist, and chosen because he knew that he could likely get away with it. If a liberal democrat president sends up as extreme a choice on the liberal side you can bet your bippy that the Pubbies will kill if they can.
Alito can get away not answering questions, but do not insult us by claiming that such is out of a sense of ethics. It is exclusively out of a desire to not prove himself unpalatable to enough Americans that the public would be supportive of a filibuster. (Or to disabuse the other side of the notion that he will be a conservative activist judge.) Nothing more or less than trying to allow each group to have enough of an open question that they will give him the benefit of the doubt in the absence of conclusive proof.
Yah, I heard you and the others say “Boo!” already. Wasn’t impressed then, not impressed now. Monkeys might also fly out of my ass as a result of my position, but you will forgive me if I don’t get all eager to allow the police to do monkey ass inspections on a whim.
If I were to say, “Because we elect Alito to the Supreme Court, he will allow the President to do whatever the fuck he likes under the unitary executive theory, and as a result we will soon see an imperial presidency and the end of democracy in America” you’d be all OK with that as a reasonable hypothetical, right?
Jeebus, John, you blame her for not wanting America to be dragged back to the Stone Age by guys like Alito? Do you think it just POSSIBLE that her vote may have been motivated by real alarm about the effects a guy like Alito could have on the country – that he could make America, not just more conservative, but less of a democracy? More of an oppressive oligarchy? If a conservative took Feinstein’s position on a liberal SC candidate, I bet you’d say she was searching her conscience and seeking to do what’s best for the country. But with Feinstein it’s all partisanship. Spare me.
Why would that circumstance cause Leahy to regret that he expressed opposition to allowing the SC to move radically to the right?