Justice McDonald And The Fourth Amendment

It is still early in Justice Andrew McDonald’s judicial career, but does anyone else see the makings of a justice who is not afraid to say “no” to the state in Fourth Amendment cases?

Today the state Supreme Court released its decision in State v. Kendrick, a case about the constitutionality of a warrantless entry into a bedroom in which the defendant was sleeping. The Appellate Court had reversed the defendant’s conviction, concluding that the search at issue violated the Fourth Amendment because the facts did not justify the conclusion, urged by the state, that the warrantless entry was necessary to protect the safety of police officers and others on the premises. The Supreme Court granted the state’s petition for certification to appeal. In an opinion penned by Justice Espinosa, a former federal prosecutor with long experience hearing criminal cases when she was on the Superior Court, the state high court disagreed with the Appellate Court’s conclusions about the constitutionality of the search and ordered that the conviction be reinstated.

Justice McDonald dissented, joined by Justice Palmer. What struck me was not merely the fact of Justice McDonald’s dissent, but his concern for the broader societal implications of upholding a warrantless search under the circumstances:

The majority’s conclusion that the record in this case supports a warrantless entry into a bedroom in the middle of the night should concern us all. The most likely, and profoundly sad, ramifications of today’s decision will fall disproportionately on members of our minority communities, given that its import means that it is enough to cast suspicion on someone simply because he has the same skin color as a criminal suspect. I am compelled, therefore, to dissent.

Justice McDonald recently joined Justice Eveleigh in dissenting from another decision, State v. Kelly, in which the Supreme Court also upheld a questionable search. Public defender and blogger Gideon and I discussed Kelly at some length a few months back on this blog. That case involved the constitutionality (under the state constitution) of a Terry-stop based on a “guilt by association” theory. The Supreme Court said that a Terry-stop of a person in the company of someone the police reasonably suspected of having committed a crime was lawful.

Again, it is still too early in Justice McDonald’s nascent career on the Supreme Court to draw any firm conclusions about his views of the relative importance of the Fourth Amendment on the one hand, and the state’s interest in law enforcement and solving crimes on the other hand.  But, his dissents in State v. Kendrick and State v. Kelly are sign posts worth remembering.

UPDATE (10/15/14): Gideon has a very good post on his blog discussing State v. Kendrick.

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