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Thread: Neil Gorsuch and Samuel Alito Butt Heads Over the Fourth Amendment, Again

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    Neil Gorsuch and Samuel Alito Butt Heads Over the Fourth Amendment, Again

    I'm liking Gorsuch more and more. Why indeed should the government have a special right not afforded the rest of us?

    http://Neil Gorsuch and Samuel Alito...endment, Again

    ...the U.S. Supreme Court heard oral arguments in Bryd v. United States. This case arose in 2014, when a woman named Natasha Reed rented a car and allowed her fiancé, Terrence Bryd, to drive it in violation of her rental contract, which listed her as the sole authorized driver. When the state police stopped Bryd for a minor traffic infraction, the officer searched the trunk and discovered heroin and several flak jackets. Bryd is fighting to have that evidence thrown out as the fruits of an illegal search.

    The question presented to the Supreme Court is this: "The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter's permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?"

    During the oral arguments, Justice Neil Gorsuch observed that Bryd's lawyer, Robert Loeb, had offered a property rights theory "on which you might prevail." That theory, "essentially as I understand it," Gorsuch said, is "that possession is good title against everybody except for people with superior title."

    ...Justice Samuel Alito apparently did not like the sound of that. "The problem with going down this property route is that we go off in search of a type of case that almost never arose...at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th-century America? Never."

    ..."Mr. Faigin, you keep saying that," Gorsuch said, "but as a matter of property law, now and forever, a possessor would have a right to exclude other people but for those with better title. So someone in this position would have a right, I think you'd agree, to exclude someone who's attempting to get in the car to hijack it, carjack it. You'd also have a right to throw out a hitchhiker who had overstayed his welcome....I think you're having to argue that the government has a special license that doesn't exist for any other stranger to the car."

    ..."By virtue of his possession he would have a right to do so," Gorsuch corrected him. "And he would have a right to throw out a hitchhiker as well....So why not the government?"

    The 4th to refresh your memory:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    To which Alito pointed out:

    "The Constitution uses the word 'property' numerous times," Alito told Loeb, "but the word 'property' doesn't appear in the Fourth Amendment. It talks about effects, which is defined by Samuel Johnson's dictionary as 'goods or movables.'... Is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?"
    Fulll transcript cof oral arguments: https://www.supremecourt.gov/oral_ar...-1371_d18e.pdf
    Tradition is not the worship of ashes, but the preservation of fire. ― Gustav Mahler

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