(Syndicated to Kansas newspapers March 9, 2015)
Because in Topeka most everything is political, the Kansas Supreme Court issued an opinion last week that puts it on the side of the 4th Amendment to the U.S. Constitution—and is probably wondering whether anyone noticed.
That 4th Amendment, you might recall from your high school government class, is the protection from unreasonable searches and seizures. Now, it doesn’t get as many T-shirts printed as the 1st (freedom of expression) or the big-time 2nd Amendment about the right to pack guns, but No. 4 is a relatively popular amendment on a slow day.
Here’s what happened: A couple cops in Emporia on the afternoon of June 22, 2011, went to a house to serve a warrant on someone, and instead found that guy’s friends walking around the side of the house with dogs on leashes. The dogs get loose, and while one cop is talking to the dog guys who had picked up the leashes, the other cop wanders around to the back of the house to see whether the dog owners or anyone else had weapons that they might or might not ambush the cops with.
Oh, and around at the back of the house, the law enforcement officer spotted a drain pipe with a baggie of methamphetamine next to it. The dope was taken, the men arrested, and then the constitutional fun started.
One of those arrested didn’t own the house but was staying there and maintained that the wandering officer had unreasonably searched the property, violating the constitutional protection of good old Amendment 4. The area searched: The curtilage of the property. Curtilage is that area around a house, typically in the backyard, that can’t be seen from the street and where a homeowner might relax, maybe even barbecue, and it is considered protected from unreasonable searches and seizures without a warrant—just like the inside of the home.
Well, the Emporia judge said that the dope found at the back of the house was in the curtilage, where the police look-about was an unconstitutional search of a citizen’s home, and that neither the backyard dope nor that dope they later found in the pocket of one of the guys out front, who was arrested based on the backyard dope, could be used as evidence.
The Kansas Court of Appeals? It overturned the local judge, and the Kansas Supreme Court overturned the Court of Appeals last week, saying the Emporia District Court judge had the right view of the Constitution.
We doubt that the Supreme Court is going to start wearing “I protect your curtilage” T-shirts (or what color they would be); it did protect that constitutional right against searches of homes and their backyards.
You have to wonder whether any Constitution-waving legislators who are snipping away at the funding and method of selecting Supreme Court justices will notice—or decide that even though the Supremes ruled against the state over school finance laws, maybe the Supreme Court isn’t the problem.
It could, we suppose, be portrayed as a Supreme Court move to prevent prosecution of a couple fellas for violating drug laws, no matter whether it took an unconstitutional search to make the case. Gotta wave that Constitution, but maybe not so energetically when it concerns dopers?
Interesting case, but don’t look for the Supreme Court to tell legislators that they put the Court of Appeals back on the leash under a system in which the Kansas Supreme Court Nominating Commission selects candidates for vacant high court seats, and now the governor just appoints subject to Senate confirmation the Appeals Court judges.
Because it doesn’t take much of a stretch to determine the Kansas Supreme Court is within the curtilage of the Statehouse, and you probably ought not look at what happens there.
Oh…and don’t mention the Kansas Supreme Court this spring when your spouse tells you to mow the curtilage…