Strict Constructionist (1/14/99)
The catch phrase for any judge who is nominated to a federal court these days is: "It is the job of a judge to interpret the law, not make law". Others likewise promise to be a "strict constructionist" of the U.S. Constitution. Unfortunately, few keep their promise and the public never has an opportunity to discover their identity.

For anyone that cares, Justice Antonio Scalia of the U.S. Supreme Court is what a federal judge should be.

This was never more clear than in the recent case of Minnesota v. Carter, 119 S.Ct. 469 (1998). In that case, the issue was whether the Fourth Amendment, which protects individuals from unreasonable searches and seizures, protects a defendant who was a temporary guest in the home of another person.

As background, if police illegally enter my home and find me in possession of an illegal substance, the appropriate remedy is for a court to throw out, or "suppress", any evidence found as a result of the search. Since the prosecutor will not be allowed to use the illegal substance, it is impossible to prove the case against me.

But what if at the time of the entrance into my home the police also find a person in the process of selling me the dope? Should the judge also rule that the illegal search of my house also causes the suppression of the dope that was in the possession of the visitor/seller?

That was the question in Carter. The majority opinion, relying on years of case law, said that a temporary visitor, regardless of his purpose (i.e. from a pizza delivery man to a quick visit by a dope dealer), does not have a "reasonable expectation of privacy" while in the home of another. Thus, the evidence seized should not be suppressed.

Justice Scalia agreed but his reasoning is refreshing. He said that the court need not "apply the fuzzy standard" of  "reasonable expectation of privacy" but simply read the Fourth Amendment.  It says, "[t]he right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures". As Scalia pointed out by citing to authority as far back as 1816, there is no question that "their houses" means "his own house".

Thus, Scalia says that a defendant who wishes to rely on the Fourth Amendment for the basis of claiming the search of a home was illegal, must first establish that it is his house.

Is this necessarily a good idea? Is it OK that police can bust through the door of your house, and if they find anything illegal, can use it against a temporary visitor to your home? To a judge that only interprets the law, it doesn't matter what is a "good idea". Scalia ends his opinion pointing out that it might indeed be correct that a temporary visitor to the home of another "ought" to be protected against illegal police searches. He's not sure what "ought" to be the law. "But I am sure," he writes, "that the answer is not remotely contained in the Constitution, which means that it is left . . . to the judgment of the state and federal legislators. We go beyond the proper role as judges in a democratic society when we restrict the people's power to govern themselves over the full range of policy choices that the Constitution left available to them".

Scalia is right. The Constitution, which limits government's role as to our individual freedoms, says nothing about whether a visitor to my home should be protected against unreasonable searches. Since it's silent, it is up to Congress or our Texas Legislature to provide that protection by statute if it is a right that the people, through their representatives, want.

Scalia is a strict constructionist. They should all be.

Barry Green is the District Attorney for the 271st Judicial District.

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