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|Justices Look Again at How Police May Search Homes
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Justices Look Again at How Police May Search Homes
January 12, 2011
By ADAM LIPTAK
WASHINGTON — More than 60 years ago, the Supreme Court ruled that the police were not entitled to enter a residence without a warrant merely because they smelled burning opium.
On Wednesday, at the argument of a case about what the police were entitled to do on smelling marijuana outside a Kentucky apartment, two justices voiced concerns that the court may be poised to eviscerate the older ruling.
“Aren’t we just simply saying they can just walk in whenever they smell marijuana, whenever they think there’s drugs on the other side?” Justice Sonia Sotomayor said, considering what a decision against the defendant would signal to the police. “Why do we even bother giving them a warrant?”
The old ruling, Johnson v. United States in 1948, involved the search of a hotel room in Seattle. The smell of drugs could provide probable cause for a warrant, Justice Robert H. Jackson wrote for the majority, but it did not entitle the police to enter without one.
“No suspect was fleeing or likely to take flight,” Justice Jackson wrote. “The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction.”
In the new case, police officers in Kentucky were looking for a suspect who had sold cocaine to an informant. They smelled burning marijuana coming from an apartment, knocked loudly and announced themselves.
Then they heard sounds from inside the apartment that they said made them fear evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.
The Kentucky Supreme Court suppressed the evidence, saying that any risk of drugs’ being destroyed was the result of the decision by the police to knock and announce themselves rather than to obtain a warrant.
Lawyers for Kentucky and the federal government told the justices on Wednesday that the lower court had erred. There had been no violation of the Fourth Amendment, which forbids unreasonable searches, they said, because the police had acted lawfully every step of the way.
Justice Elena Kagan expressed doubts about that approach.
A standard that looks only at the lawfulness of police behavior, Justice Kagan said, “is going to enable the police to penetrate the home, to search the home, without a warrant, without going to see a magistrate, in a very wide variety of cases.”
All the police need say, she said, is that they smelled marijuana and then heard a noise. “Or,” she continued, “we think there was some criminal activity going on for whatever reason and we heard noise.”
“How do you prevent,” Justice Kagan asked Joshua D. Farley, a Kentucky assistant attorney general, “your test from essentially eviscerating the warrant requirement in the context of the one place that the Fourth Amendment was most concerned about?”
Mr. Farley said that nothing the police had done in this case had violated the Fourth Amendment.
Justice Sotomayor was even more direct.
“Aren’t we just doing away with ‘Johnson’?” she asked.
Justice Ruth Bader Ginsburg asked why the police could not simply roam the hallways of apartment buildings, sniffing; knock whenever they smell marijuana; then break in if they hear something suspicious.
Mr. Farley said, “That would be perfectly fine.”
Other justices appeared untroubled by the standard the government lawyers proposed.
“There are a lot of constraints on law enforcement,” Justice Antonin Scalia said, “and the one thing that it has going for it is that criminals are stupid.”
He said a sensible criminal would answer the door but decline to let the police enter without a warrant.
In a blog post, Orin S. Kerr, a law professor at George Washington University and an authority on the Fourth Amendment, said the case, Kentucky v. King, No. 09-1272, presented a tricky question based on murky facts.
But he said the police should not be allowed to take advantage of at least some of the circumstances their own conduct creates. Among those circumstances, he said, are the reactions of people who are made to believe that the police are about to conduct a forcible search of their homes.
|Talks could be West's "last chance": Iran envoy
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Talks could be West's "last chance": Iran envoy
By Ramin Mostafavi
TEHRAN (Reuters) - Talks next week between Iran and major powers concerned about its nuclear program could be the "last chance" for the West because Tehran's atomic capability is improving, a senior Iranian official was quoted as saying.
Ali Asghar Soltanieh, Tehran's nuclear ambassador, raised the stakes for the January 21-22 meeting with the five permanent members of the U.N. Security Council plus Germany, which want assurances that Iran is not trying to develop nuclear weapons.
Once Iran can make its own fuel for a research reactor, which it has said will happen this year, it may not return to negotiations if the talks to be held in Istanbul fail, the official IRNA news agency quoted him as saying on Wednesday.
"It might be the last chance because by installing fuel rods produced by Iran in the core of the Tehran Research Reactor, probably parliament will not allow the government to negotiate or send its uranium outside the country and the Istanbul meeting might be the last chance for the West to return to talks."
Soltanieh later told Reuters in Vienna: "If the first fuel will be ready, goes to the heart of the reactor, then what do we need negotiation (for) ... therefore the other side should come to the negotiating table as soon as possible."
Iran's Supreme Leader, Ayatollah Ali Khamenei, has the ultimate say on its nuclear policy and diplomacy.
A similar round of talks concluded in October 2009 with a tentative pact for Iran to export some of its low-enriched uranium in exchange for fuel rods made from higher-enriched, 20 percent uranium to run the reactor which makes medical isotopes.
But that deal, meant as a confidence-building step leading to further talks, unraveled when Tehran backed away from the terms, ultimately triggering a new wave of sanctions which some analysts say helped push Tehran back to the negotiating table.
Acting Foreign Minister Ali Akbar Salehi said on Saturday Iran would be able to produce its own fuel material for the Tehran reactor later this year, making any swap deal "lose its meaning.
Bruno Tertrais, Senior Research Fellow at the Foundation for Strategic Research in Paris, said Soltanieh's statement was largely bluff.
"In any case, Mr Soltanieh's argument is reversible -- we could always say it's the last chance for Iran," said Tertrais.
"When I say bluff, I mean I am not at all certain that Iran has the technical capacity to make the fuel necessary for this type of reactor," he said, echoing the general assessment of Western officials and nuclear experts.
The U.N. Security Council has urged Iran since 2006 to suspend its uranium enrichment -- which yields fuel for nuclear reactors or, if done to a much higher level, for nuclear bomb -- in exchange for a packet of economic and diplomatic incentives.
Iran is still awaiting replies from some of the countries it invited to tour its nuclear sites ahead of the talks, in what it calls a demonstration of its openness and peaceful intentions.
Of the countries involved in the Istanbul talks, the European Union rejected the invitation and the United States was not invited, saying it was for U.N. nuclear watchdog specialists to inspect Iranian nuclear installations.
But Iranian Foreign Ministry spokesman Ramin Mehmanparast said those invited could bring nuclear experts with them.
"With regard to the opinion of some of the invitees, we announce that ... bringing along nuclear experts is not a problem," ISNA news agency quoted him as saying.
From the six-power group, only China and Russia are possible attendees in the visit to Iran. Russia said it was still considering the invitation [ID:nLDE70A0MN], and an Iranian delegation held talks in Beijing on Wednesday. [ID:nTOE70B06L]
Soltanieh told Reuters envoys from Venezuela, the Arab League, Egypt as chair of the Non-Aligned Movement, Syria and others would come on the planned Jan 15-16 trip, but that China and Russia had yet to respond to the invitation.
Western diplomats do not anticipate a significant breakthrough in Istanbul, in view of Iran's refusal to even discuss enrichment, the overriding concern for the big powers.
Tertrais said Iran had no interest in walking away from the negotiation process, rather in stretching it out.
(Additional reporting by Robin Pomeroy
and by Fredrik Dahl in Vienna; writing by Robin Pomeroy; editing by Maria Golovnina)
|Rep. Clyburn Calls For Return Of Fairness Doctrine
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Rep. Clyburn Calls For Return Of Fairness Doctrine
Jan 10, 2011
Rep. JIM CLYBURN (D-SC), the third-highest-ranking Democrat in the House and father of FCC Commissioner MIGNON CLYBURN, told the CHARLESTON POST AND COURIER that the country should "rethink parameters on free speech" in the wake of the shootings in TUCSON, and called for a reinstatement of the Fairness Doctrine and standards for "balanced media coverage."
"Free speech is as free speech does," CLYBURN said. "You cannot yell ‘fire' in a crowded theater and call it free speech and some of what I hear, and is being called free speech, is worse than that."
No evidence has yet linked conservative commentary or the Tea Party movement to the shooter, JARED LEE LOUGHNER, whose writings and actions before the attempt on Rep. GABRIELLE GIFFORDS' life indicated a scattered, extreme mix of ideologies and evidence of mental illness. MIGNON CLYBURN has previously said she is not in favor of a reinstatement of the Fairness Doctrine.
also and related
Activist Nogales Wants FCC Action On Hate Crimes Petition
Meanwhile, another call for government action came from ALEX NOGALES, the LOS ANGELES-based activist who backed the "SELENA Boycott" against HOWARD STERN in 1994-95. NOGALES, under his NATIONAL HISPANIC MEDIA COALITION banner, has called in the wake of the TUCSON incident for the FCC to act on its petition to investigate what NOGALES considers "hate speech" on radio and television. BROADCASTING AND CABLE reports that NOGALES is using the TUCSON shooting to prod the Commission to act on his petition, which asks the FCC to conduct an inquiry into hate speech and for Congress to fund an update on a 1993 NTIA report on telecommunications and hate crimes.
"We started this dialog in the last immigration debate four years ago. We could see that it was just out of control. It started with just an issue of immigration, then every pundit on radio and TV who wanted an audience started talking about it and started using the worst of language, and now it has spilled out into mainstream," said NOGALES, who added that he is not looking for the inquiry to result in regulation. "We're not looking for regulations," he said. "We're about bringing this to the consciousness of the American people to the point where we as a nation and a population say to each other: 'We can't continue like this.' We want to put the pressure on those individuals who continue to use that kind of rhetoric so that they stop it or mitigate it."
|Vets Angry After Navy Sec. Names Warship After Former Dem Rep. Murtha
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Vets Angry After Navy Sec. Names Warship After Former Dem Rep. Murtha
Traditionally, secretaries of the Navy get the honor of naming warships in America’s Naval fleet. But Navy Secretary Ray Mabus is running into stiff opposition over his latest pick: the late Pennsylvania congressman John Murtha.
The late Rep. John Murtha, D-Penn.
“Both in uniform and in the halls of Congress, Chairman Murtha dedicated his life to serving his country both in the Marine Corps and Congress,” Mabus said last spring following Murtha’s death. “His unwavering support of our sailors and Marines, and in particular of our wounded warriors, was well known and deeply appreciated.” Murtha was awarded two Purple Hearts during his service in Vietnam and served Pennsylvania’s 12th Congressional District from 1974 until his death last year.
But Mabus’ praise for Murtha is falling on the deaf ears of a number of former sailors and Marines who say naming a vessel for Murtha simply rewards a lawmaker who called for pulling U.S. troops out of Iraq during the height of war’s toughest fighting. Many veterans also point out that Murtha was also implicated in bribery schemes and engaged in much-criticized pork-barrel politics. Last Friday, one of Murtha’s former aides
was sentenced to serve 27 months in prison for evading limits on campaign donations. Additionally, Murtha was named as an “unindicted co-conspirator”
in the FBI’s 1980 Abscam sting.
What’s worse, sailors and Marines say, in 2006, Murtha claimed that Marines in the Iraqi city of Haditha had “killed innocent civilians in cold blood.”
“Name a ship after a congressman
who disgraced himself by rushing to judge that fellow Marines had committed murder in Iraq? Can you be serious?”one retired Marine major general remarked to TIME.
Facebook groups have cropped up online protesting the Navy Secretary‘s decision and more than 200 people voiced their complaints in comments to the Navy’s announcement. Not a single person voiced support for the decision, TIME notes. “As active duty lieutenant commander, I would resign my commission before accepting orders to this misnamed ship,” one officer posted anonymously on the Navy’s website.
“Whether on the battlefield, or on the bedside, he thanked them for their courage, listened to their concerns, and asked them for comment — and he answered their needs, and responded to their calls, whether it was for body armor, up-armored vehicles… radios, you name it,” Pelosi said. “In those minutes [together], he bonded with them especially because he would share his own personal military service with them, and cared for them as a father. They knew it, and they returned his respect.”
But from sailors’ point of view, the story of the 19-term congressman is a very different account. On the Navy’s official website, many have decried the decision to name a ship after Murtha as a “slap in the face,“ ”inappropriate,“ and ”an absolute disgrace.”
“The naming of LPD 26 after John Murtha is inappropriate,” wrote David Martin. “There [are] many men and women with greater records of valor and service to the country who deserve the honor of having a warship named in their memory before John Murtha has a warship [named] in his honor. He made sure there was an airport named after himself. What more does there need to be?”
In addition, letters in the January issue of the independent naval magazine Proceedings also voiced opposition.
“The Navy’s scheme for naming ships, especially capital ships like carriers and subs, has become a joke,” writes Douglas Pauly, recalling when carriers were named for battles, battleships for states, cruisers for cities, destroyers for people, and submarines for marine life. Traditionalists like the convenience of such categories, where knowing the name of a vessel instantly declares what kind of ship it is.
TIME notes that in naming a ship for Murtha, Mabus is breaking with the old tradition of naming a San Antonio class ship after a U.S. city. Work on the Murtha has begun and a spokesman for the Navy Secretary says Mabus has no intention of reversing his decision to honor the late congressman.
He believes that “the naming honors Congressman Murtha’s lifetime of service to the Marine Corps, in Congress and to our nation.” Of course, sailors and Marines, used to being ignored by the brass, are coming up with their own names for the Murtha. Right now, USS Cold Blooded Killers seems to be their top choice.
|The Worst Sheriff in America
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The Worst Sheriff in America
by Michelle Malkin
Pima County Sheriff Clarence Dupnik
There are many heroes who showed indomitable courage and grace under fire during this weekend's horrific Tucson massacre. Blowhard Pima County Sheriff Clarence Dupnik was not one of them.
If the White House has any sense, President Obama will stay far away from the demagogic Dupnik and his media entourage when he visits Arizona on Wednesday to memorialize the victims. Indeed, if the White House is truly committed to unifying the country, it will explicitly disavow Dupnik's vulture-like exploitation of the shooting rampage.
Within hours of the bloody spree, Dupnik mounted more grandstands than a NASCAR tour champion. A vocal opponent of S.B. 1070, the popular state law cracking down on illegal immigration, Dupnik immediately blamed Arizona for becoming a "mecca for prejudice and bigotry."
To date, there is no public evidence that accused shooter Jared Loughner was in any way motivated by the national rancor over illegal immigration and the Arizona law (though open-borders extremists from the Justice Department on down most certainly wish it were so). When he complained about non-English speakers, Loughner's nonsensical diatribes were aimed at illiterates in general -- not illegal aliens -- and "grammar control" by the government.
No matter. Dupnik vehemently singled out "people in the radio business and some people in the TV business" like Rush Limbaugh for creating the New York Times-patented "Climate of Hate." Sounding more like an MSNBC groupie (which, surprise, he confesses to be) than a responsible law enforcement official, Dupnik baselessly suggested that the shooting was part of a larger conspiracy and railed against "vitriol" from limited-government activists who are stoking "anger against elected officials."
Dupnik's mouth has done more to stoke self-inflicted ire against elected government clowns than anything the right could muster against him. Had the hyper-partisan Democrat been more in tune with his job than the media airwaves, the murderous, maniacal gunman might have been stopped.
As Dupnik himself has now admitted, Loughner leveled death threats against others that were investigated by law enforcement -- and then apparently shrugged off. Locals note that Loughner's mother worked for the county and may have had some pull. Pima County College campus police reported five serious confrontations with the mentally unstable young man before he was kicked out of the school, which he decried as an unconstitutional "torture facility." Classmates said they feared for their lives. His friends say he was a pothead, a 9/11 Truther and a UFO conspiracist so kooky that even flying-objects adherents spurned him.
Despite zero evidence that Rush Limbaugh, cable news, the tea party movement or immigration enforcement activists had anything to do with Loughner's warped attack, shameless Sheriff Dupnik shows no signs of shutting up.
The worst sheriff in America is walking in the footsteps of another infamous law enforcement official who put fame, ambition and ideology above public safety: disgraced Montgomery County (Md.) Police Chief Charles Moose, the publicity-hungry Keystone Cop who grossly bungled the Beltway sniper attacks in 2002.
Like Dupnik, Moose let politically correct assumptions drive his investigation and incessant press conferences. He insisted on hunting the wrong vehicle while the snipers' Chevy Caprice (spotted by several witnesses and whose license plates had been checked by police at least 10 times during the shooting spree) got away. The hapless Moose clung to the notion that white militants in a nonexistent white box truck were to blame -- leading to a string of unnecessary murders as the real shooters escaped capture for several deadly weeks. No matter. Moose cashed in on his notoriety, inked a fat book deal and beat a hasty retreat to Hawaii.
Dupnik is now following the same ill-gotten path. But decent Americans understand that he and his civilian counterparts have traveled a smear too far. Despite desperate attempts by the progressive left to pin the massacre on the "harsh tone" of its political opponents, a vast majority of Americans reject the cynical campaign to criminalize conservatism, suppress political free speech and capitalize on violent crime for electoral gain.
At the risk of being accused of inciting violence, you might say they've done gone and shot themselves in the foot.