Monday
Consent isn't everything
For my two or three long time readers, I finally tried to write a new "better answers to the Ethicist's questions" piece, which I haven't done for a long time. But I agree with most of the claims made in response to the first letter, for instance that non-market mechanisms are the proper way for the United States to have sturctured its organ transplant system. I don't, however, have a fully worked out answer for all the objections to that claim (increased organ donation in response to monetary rewards, certain paternalistic problems), nor to the further one that it was mistaken for India, despite its social, political, and economic differences from the United States. The really interesting question is about how a child should respond to their parent's perceived ethical failings, but he barely gestures at that other than suggesting that they do charitable work in the area of organ donation.
I also wanted to slightly expand on this comment at Orin Kerr's on Randolph v. Georgia, the Supreme Court's decision last week that the police do not have a consent exception to the warrant requirement if two co-owners of a residence are standing at the door and disagree as to whether or not they consent to police entry (the holding might be broader than this, but the breadth of the holding has nothing to do with my point). Let me also note that I've not read the opinion, only news and blog accounts of it, so I could be making a big mistake in what I'm about to stay.
It is entirely possible that the court did not need to reach the issue of consent, because the case could have been decided for the state on exigency grounds. As I said, I didn't read the opinion, so this might be addressed, and it is also possible that for some reason the state failed to plead this issue in the alternative to their primary (incorrect) consent rationale. Otherwise, the police had probable cause from the wife's phone call claiming that her husband had cocaine in the house. Because they believed they had consent to search (the wife had indicated her husband wasn't home), they had no reason to get a warrant at the time of the call. When they arrived at the house they discovered that the husband had just arrived home, and was denying them permission to search. At that point an exigency exception to the warrant requirement sprung into existence, because they had reason to believe the evidence of the crime would be destroyed, and destruction of evidence is not an exigency. The importance of the fact that the exigency didn't arise until they were on the scene is that this would not be a case where the police purposefully waited for exigency to arise in order to avoid the need for a neutral decision maker to grant a warrant. The only reason they wouldn't have had an exigency exception is if they could have frozen the scene by keeping the husband out of the house until they could return with a warrant, and I'm not sure of the facts on that issue.
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I also wanted to slightly expand on this comment at Orin Kerr's on Randolph v. Georgia, the Supreme Court's decision last week that the police do not have a consent exception to the warrant requirement if two co-owners of a residence are standing at the door and disagree as to whether or not they consent to police entry (the holding might be broader than this, but the breadth of the holding has nothing to do with my point). Let me also note that I've not read the opinion, only news and blog accounts of it, so I could be making a big mistake in what I'm about to stay.
It is entirely possible that the court did not need to reach the issue of consent, because the case could have been decided for the state on exigency grounds. As I said, I didn't read the opinion, so this might be addressed, and it is also possible that for some reason the state failed to plead this issue in the alternative to their primary (incorrect) consent rationale. Otherwise, the police had probable cause from the wife's phone call claiming that her husband had cocaine in the house. Because they believed they had consent to search (the wife had indicated her husband wasn't home), they had no reason to get a warrant at the time of the call. When they arrived at the house they discovered that the husband had just arrived home, and was denying them permission to search. At that point an exigency exception to the warrant requirement sprung into existence, because they had reason to believe the evidence of the crime would be destroyed, and destruction of evidence is not an exigency. The importance of the fact that the exigency didn't arise until they were on the scene is that this would not be a case where the police purposefully waited for exigency to arise in order to avoid the need for a neutral decision maker to grant a warrant. The only reason they wouldn't have had an exigency exception is if they could have frozen the scene by keeping the husband out of the house until they could return with a warrant, and I'm not sure of the facts on that issue.
