September 11, 2018

Downsize DC wins another 4th Amendment victory

Another Supreme Court victory for property rights and the 4th Amendment Retweet

Our amicus briefs to the Supreme Court have changed the world. Our lawyers have uniquely argued that… [Heagan Motorcycle Cover]

  • The freedom of the PRESS applies to campaign finance laws, and this led directly to the landmark Citizens United ruling.
  • The Fourth Amendment primarily protects your right to own property that is secure from warrantless searches, and our argument prevailed in both Jones v. United States and Florida v. Jardines.

We’ve also scored TWO VICTORIES in the case Collins v. Virginia!

First, we asked the Supreme Court to hear this case. We filed the ONLY amicus brief giving the Court compelling reasons for granting the petition. And the Court agreed! Congratulations to those of you who helped fund that brief!

Then we filed another brief on the merits of the case.

The question was, “Can the police enter private property without a warrant to search a motorcycle under a tarp?” A lower court used a dubious, judge-made doctrine called “the automobile exception” to argue that they can. The idea behind the “exception” is that vehicles can get away before a warrant is granted. Our brief argued that…

  • The “automobile exception” was created out of thin air and has no Constitutional basis.
  • The search triply violated the Fourth Amendment by invading Collins’ yard, lifting his tarp from the motorcycle, and then searching the vehicle.
  • The property-based precedents established in Jones, and the complementary Jardines case, apply to all three violations.

In short…

  • You own your vehicles the same way you own your house and your yard.
  • Your vehicles are safe from warrantless searches the same way your house is, no matter where they are parked.

The court ruled the search illegal 8 to 1!

The majority opinion by Justice Sotomayor avoids using either the words “property” and “privacy.” We assume this was necessary to win the votes of both the property and privacy sides of the court.

The opinion argues that police cannot search or seize alleged contraband just because they can see it. They must still “have a lawful right of access to the object itself.” The opinion repeatedly refers to this “lawful right of access” and “the necessary lawful right of access.” We think these are property rights arguments without using the word.

Justice Sotomayor concluded that permitting the automobile exception to apply anywhere an automobile is located “would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.”

So we won another one, but what does it mean?

We would’ve preferred to see the Court rely on the property basis of the Fourth Amendment, as well as expressly reference the Jones and Jardines precedents. But we still believe our work had visible impact. During oral arguments, Justice Sotomayor and Justice Gorsuch both made points that could have almost been read aloud from our brief. It was clear, from their comments, that they were getting the property implications at stake.

We thank everyone who contributed to this brief and our brilliant attorneys at the Olson law firm.

But the fight is not over. Justice Gorsuch has only been on the Supreme Court for a year. In a recent Fourth Amendment case he bemoaned the fact that he could already count two cases where the Jones and Jardines precedents were available to petitioners, but their attorneys never made the argument.

Even when we change the direction of the court — such as we did here, by causing it to rely on property principles in understanding the scope of the Fourth Amendment — the tendency is to drift back to the old ways of doing things. And for many of the lawyers bringing these cases, they fall back on the privacy doctrines taught to them in law school, rather than learning and applying the new property principles.

Call it inertia but, we must do all we can to…

  • Make sure these arguments show up in cases before the Court.
  • Continue to expand the power and scope of these precedents.

Without us, the odds plummet that these arguments get made. That’s why we need your financial help.

Please consider a generous one-time contribution or monthly pledge to help support our amicus brief program. partners with the Downsize DC Foundation (home of the Zero Aggression Project) so that your contributions can be tax-deductible. When you click the contribution or pledge link, you’ll be taken to the Zero Aggression Project contribution form.

Thank you for your support and for being an ACTIVE DC Downsizer,

Jim Babka & Perry Willis
Downsize DC

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