Monday, August 28, 2006
boiling the shadow of a pigeon that had been starved to death
State of Montana v. Peter Oliver Joseph Barnaby,a/k/a Peter Oliver Butterfly, No. 05-013. 2006 MT 203. Justice Patricia O. Cotter dissents Justice James C. Nelson respectfully, but vigorously, dissents. Tellingly, the analysis sustaining these actions by the Court is “as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had been starved to death.” Abraham Lincoln,Sixth Debate with Stephen A. Douglas, at Quincy, Illinois (Oct. 13, 1858), in The Collected Works of Abraham Lincoln vol. 3, 245, 279 (Roy P. Basler ed., Rutgers University Press 1953). @30 I do not believe that any appellate court—much less this Court, which is bound by the greater protections afforded under Article II, Sections 10 and 11, of the Montana Constitution—should enable the sort of police work evident here. The courts cannot become foot soldiers in the war on drugs at the expense of their independent role as guardians of the Constitution. “The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.” Almeida-Sanchez v. United States (1973), 413 U.S. 266, 273, 93 S.Ct. 2535,2540. As Justice Jackson observed, soon after his return from the Nuremberg Trials (seeAlmeida-Sanchez, 413 U.S. at 274, 93 S.Ct. at 2540): These [Fourth Amendment rights], I protest, are not mere second class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police. Brinegar, 338 U.S. at 180-81, 69 S.Ct. at 1313 (Jackson, J., joined by Frankfurter and Murphy, JJ., dissenting). This Court’s duty to enforce these rights in Montana is all the more compelling given the broader right to privacy guaranteed by Article II, Section 10. @90. The war on drugs must not become a war on the constitutional right of Montanans to be free from unreasonable searches and seizures in their homes. “The Fourth Amendment is a charter of freedom that should be protected against incremental erosion.” So much more, then, should this Court support, protect, and defend the greater protections afforded by Article II, Sections 10 and 11, of Montana’s Constitution. For all of these reasons, I vigorously dissent.