Courts

Thomas And Alito Make Crazy And Dangerous Arguments... For No Damn Reason

It's like they got bored with just applying the law, so they let their intellectual freak flag fly.

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(AP Photo/Susan Walsh, Pool)

It can be difficult to recognize just how far outside the “mainstream” the arch-conservative wing of the Supreme Court truly is. After all, to write a majority opinion, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have to mollify their views enough to bring along Chief Justice John Roberts and Justice Anthony Kennedy. And most dissents are so issue specific that you rarely really get to see them let their freak flag fly.

But today, in an 8 – 1 decision on a Fourth Amendment case, Thomas in concurrence and Alito in dissent really just went full bats**t. Both of them articulated their own dystopian views on how they would basically destroy the Fourth Amendment, if given a chance.

That their views were immaterial to the instant case just makes it all the more troubling that these guys are champing at the bit to eviscerate a Constitutional protection.

The case is Collins v. Virginia. A motorcyclist evaded police after a high-speed chase. Police tracked him to a house where he stayed sometimes. The motorcycle was parked in a driveway, under a tarp. Without a warrant, police walked up the driveway, lifted the tarp, ran plates on the bike, and found that the motorcycle they’d been chasing was actually stolen.

Writing for the majority, Justice Sonia Sotomayor held that the Fourth Amendment does extend to the “curtilage” outside the home — which is a legal term I can’t remember hearing before, but apparently includes a “driveway” but not street parking. She held that the “automobile exception” (which allows the police to search a car without a warrant if they reasonably fear the car will, like, move and stuff) could not defeat a reasonable expectation of privacy in a driveway.

The fact that the decision was 8-1 should tip you off that this was a relatively standard and mainstream application of the Fourth Amendment. Justice Thomas joined Sotomayor’s opinion, noting that it was correct under the precedent of the court.

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But he wrote separately to argue that the exclusionary rule itself could not be applied to state courts.

… Which is a damn fool thing to say, but the kind of damn fool thing that is increasingly popular in some arch-conservative philosophies. The exclusionary rule says that if a search violates the Fourth Amendment, the evidence obtained from that search cannot be used against the VICTIM of said unconstitutional search. That makes perfect sense to me because here on planet Earth, excluding illegal obtained evidence seems like a good way to make sure evidence is legally obtained.

Thomas has no time for such technicalities. From his concurrence:

The exclusionary rule appears nowhere in the Constitution, postdates the founding by more than a century, and contradicts several longstanding principles of the common law.

In Thomas’s world, if evidence is “relevant and reliable,” it should still be used as evidence, even if it was obtained illegally. That’s basically like I should be able to keep any cash I manage to steal. Thomas does not believe the exclusionary rule is required by the Constitution, and so he wants to do away with it. (I’ll spare you the originalist history lesson, but Thomas points out that the exclusionary rule didn’t exist in ancient Rome, which I suppose is a good nugget if your obtuse legal philosophy requires grounding in the rules of evidence as practiced by Lucius Aelius Sejanus.)

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I’d vote for Thomas’s opinion being the craziest theory in this case, but Justice Alito gives him a run for his money. Alito was the lone dissenter… meaning that he lives in a world where warrantless searches of driveways are okay.

Alito expands the automobile exception so wide that you can drive a truck through it. (Sorry, I was contractually and morally obligated to write that line.) From his dissent:

The Fourth Amendment prohibits “unreasonable” searches. What the police did in this case was entirely reasonable…

In this case, there is no dispute that the search of the motorcycle was governed by the Fourth Amendment, and therefore whether or not it occurred within the curtilage is not of any direct importance. The question before us is not whether there was a Fourth Amendment search but whether the search was reasonable. And the only possible argument as to why it might not be reasonable concerns the need for a warrant. For nearly a century, however, it has been well established that officers do not need a warrant to search a motor vehicle on public streets so long as they have probable cause… Thus, the issue here is whether there is any good reason why this same rule should not apply when the vehicle is parked in plain view in a driveway just a few feet from the street.

Alito has his facts wrong: the relevant information on the motorcycle was not in “plain view” from the street, otherwise the officers could have stayed on the street. It was under a tarp, in a driveway. But that doesn’t matter to Alito. He’s basically arguing that the mere existence of a car is enough to frustrate any kind of expectation of privacy.

While not as overtly insane as Thomas’s view, Alito’s point here is very dangerous. As an African-American, it’s bad enough that cops in my white neighborhood can just straight-up follow me around when I’m driving through town. It’s unnerving when they follow me all the way to my house (which happens more often than Alito thinks or gives a f**k about). It would be unconscionable if they could follow me up my driveway, or even into my garage, all without a warrant because of Alito’s view of the automobile exception.

In an 8-1 case, it fine to feel like “oh, the conservatives lost” and not worry about it. But the views here, and the success of Trump and McConnnell of packing the courts with conservatives just as crazy as these two, makes me very afraid for our future. There are going to be a lot of judges floating around who think the Fourth Amendment just barely exists at all.

Stay vigilant. Things are going to get worse.

Collins v. Virginia [US Supreme Court]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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