Comments on: Analysis: The simplicity of arrest, the complexity of theory http://www.scotusblog.com/2008/01/analysis-the-simplicity-of-arrest-the-complexity-of-theory/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 +0000 http://wordpress.org/?v=2.9 hourly 1 By: Roger Friedman http://www.scotusblog.com/2008/01/analysis-the-simplicity-of-arrest-the-complexity-of-theory/comment-page-1/#comment-14211 Roger Friedman Tue, 15 Jan 2008 03:11:22 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-the-simplicity-of-arrest-the-complexity-of-theory/#comment-14211 Looks like Tom loses, perhaps as badly as 7-2. It just goes to show how bad a decision Whren is. One would think that a "search incident to a lawful arrest" would require a lawful arrest, but according to Virginia, all you need is probable cause that a law has been violated. Here in the South, it is a housing code violation to let your yard get overgrown with kudzu. The sanitation department serves you with a summons to come to municipal court to answer the charge. It's going to add a lot of insult to injury when your trash man conducts a full cavity search. Perhaps Arlo Guthrie's song Alice's Restaurant would never have been written had, upon being served with his illegal dumping citation, he had been searched incident to arrest and been thrown in the slammer for possessing some weed (and I don't mean kudzu). The state's protective function be damned, it is a better world for Arlo having been out of jail singing his song. Looks like Tom loses, perhaps as badly as 7-2. It just goes to show how bad a decision Whren is. One would think that a “search incident to a lawful arrest” would require a lawful arrest, but according to Virginia, all you need is probable cause that a law has been violated.

Here in the South, it is a housing code violation to let your yard get overgrown with kudzu. The sanitation department serves you with a summons to come to municipal court to answer the charge. It’s going to add a lot of insult to injury when your trash man conducts a full cavity search.

Perhaps Arlo Guthrie’s song Alice’s Restaurant would never have been written had, upon being served with his illegal dumping citation, he had been searched incident to arrest and been thrown in the slammer for possessing some weed (and I don’t mean kudzu). The state’s protective function be damned, it is a better world for Arlo having been out of jail singing his song.

]]> By: Daniel Thomas http://www.scotusblog.com/2008/01/analysis-the-simplicity-of-arrest-the-complexity-of-theory/comment-page-1/#comment-14208 Daniel Thomas Tue, 15 Jan 2008 01:16:45 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-the-simplicity-of-arrest-the-complexity-of-theory/#comment-14208 In his blog post Orin Kerr questions Tom's approach to this case and after reading the entire transcript it seems the court did too. While Tom may want the court to hold on narrow grounds, neither the Court nor the government seemed to share that desire. I can't say for sure which way they would rule, because it was clear that the court did not like all the implications of a braod reading either way. But it did seem to me the court found his attempt to drag common law into the debate unconvincing, as I did. In his blog post Orin Kerr questions Tom’s approach to this case and after reading the entire transcript it seems the court did too. While Tom may want the court to hold on narrow grounds, neither the Court nor the government seemed to share that desire. I can’t say for sure which way they would rule, because it was clear that the court did not like all the implications of a braod reading either way. But it did seem to me the court found his attempt to drag common law into the debate unconvincing, as I did.

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