The nine justices of the United States Supreme Court are recognized being some of the greatest legal scholars in the country, particularly on matters pertaining to interpreting the U.S. Constitution. Sometimes, even the great minds of the Court publish decisions that make it appear as though even great minds can have a bad day every once and a while. Here are six cases that fall into that category.

Florida v. Harris, 568 U.S. ___ (2013)

This recent case out of Florida, gave the Supreme Court the opportunity to rule on the expertise and reliability of the animal used in a drug search. If it is true that every dog has his day, then Florida v. Harris , was Aldo the German shepherd’s day in the spotlight.

Aldo and his handler were on patrol when they stopped Mr. Harris for having an expired license plate. According to the testimony of the officer, the motorist appeared nervous and had an open can of beer in a cup holder. The officer asked for permission to search the trunk, but Mr. Harris refused. Now it was Aldo’s turn to go into action. The officer was walking the dog around the truck when it signaled at the door handle on the driver’s side of the vehicle. A search of the vehicle resulted in the seizure of a quantity of illegal drugs.

The appeals court in Florida ruled that prosecutors failed to prove the reliability of Aldo’s ability to detect drugs. Specifically, the Florida court ruled that the by not submitting documentation of Aldo’s performance in the field, the prosecutors had failed to meet their burden of proving him to be reliable.

In a unanimous decision reversing the ruling of the Florida state court, the Supreme Court wrote reliability of a drug detecting dog should be based on the totality of the circumstances and that field performance should not make a difference if there is evidence of proving that the dog was properly trained regardless of his performance in the field.

The decision turned Aldo into the furry equivalent of a search warrant, but without proof of his reliability in working conditions. Interestingly, the Court acknowledged that failures occur in the field, but it discounted their importance by acknowledging that just because nothing is found does not mean that Aldo did not smell something. Now, if only Aldo could talk.

WHY IS THIS BAD?

Criminal defense attorneys have long sought to prove that drug dogs are unreliable. In a recent test only 30% of dogs were able to identify drugs correctly. Further, handlers have a large impact on the reaction of the dogs. Handlers can give the dog cues to bark and sniff even if the dog does not actually smell drugs.

Imagine a dog gets zero answers right out of his first 100 tries – the Supreme Court basically says that we should not question this, if the dog has been trained properly. No one sees a problem with this? Dead wrong!

Florida v. Riley, 488 U.S. 445 (1989)

A police officer in Florida received an anonymous tip that Riley was growing marijuana in a greenhouse on his property. Being unable to see inside the greenhouse from the street, the officer resorted to a helicopter hovering at 400 feet about the yard to see into the greenhouse through holes in the roof.

The Supreme Court reversed the suppression of the evidence that the state court in Florida had ordered by ruling that the observations made by the officer in the helicopter was not a Fourth Amendment search because there was no expectation of privacy.

The dissenting justices believed the majority placed too much emphasis on the frequency of civilian helicopters passing over the house in determining that no reasonable expectation of privacy existed. Justice O’Connor wrote that the only factor of importance was the reasonableness of Riley’s expectation of privacy as to the contents of his greenhouse.

WHY IS THIS BAD?

America, welcome to drone searches. This case is often sited as authority to run drones over airspace without a warrant, probable cause, or any other discernible mechanism. And they are probably right. This case allows any police implement to observe areas, other than curtilage, as long as they are not flying below FAA regulations.

Salinas v. Texas, 570 U.S. ___ (2013)

Mr. Salinas was invited by the police to come to the station-house to be interviewed about the deaths of two men with whom Salinas was acquainted. Salinas cooperated with police by answering questions and agreeing to turn over a shotgun he owned to them. When police asked him if the shotgun would match the spent shells they found at the murder scene, Salinas did not answer and acted tense.

Police later arrested Salinas on charges of murder. At his trial, prosecutors commented on the foot shuffling, tense, lip biting reaction of Salinas when he was asked about the shotgun by suggesting that an innocent person would have said something at that moment. Salinas appealed his conviction by claiming that the use of his silence was used against him in violation of the Fifth Amendment. The Supreme Court disagreed.

The Court ruled that Salinas did not protect his right to remain silent by remaining silent. According to the Court, Salinas had to speak up and invoke his right to remain silent in order to preserve it. The dissenting justices pointed out that making a suspect speak up in order to protect his right to remain silent puts him in an untenable position by making him speak to police to protect his right not to speak to the police.

WHY IS THIS BAD?

You must speak up in order to invoke your right to remain silent? I think no more needs said about this case.

Maryland v. King, 569 U.S. ___ (2013)

By a slim majority vote in the Supreme Court, a Maryland law authorizing law enforcement to collect DNA samples from individuals arrested on designated felony charges was upheld. The state law allowed the samples to be added to state and federal data bases regardless of whether the person was ultimately found guilty of the charges.

The rationale for the decision was that DNA samples were no different than mug shots and fingerprints in helping law enforcement to identify a suspect. The dissent pointed out that DNA is not used for identification in the same manner as other forms of identification. DNA is used to connect a person to other crimes. The identification justification failed when weeks or months between the collection of the sample and the reported results was taken into consideration.

As some of the dissenting justices wrote, the collection of DNA at the time of arrest was similar to conducting a search of a person’s home for evidence of other criminal activity. Justice Scalia referred to the Fourth Amendment in commenting that he doubted that the drafters of the Constitution would have been prepared to have their mouths swabbed.

WHY IS THIS BAD?

I think the two most important aspects of this case are 1) the collection of DNA evidence of any subject whether they are found to be guilty or not 2) the running of this DNA against past cold cases to try and solve them – even if you are not guilty of your current arrested charge!

There will be a lot of hand wringing on this because citizens want cases solved and people put in jail but there is a severe drop in civil liberties to do that.

The American legal system has lost its “innocent until proven guilty mindset”. Maybe it never had it, but think about the last time you saw someone get arrested for a high profile crime (O.J., Bernie Madoff, Jodie Arias, etc.) and you thought to yourself – that person is guilty -without every hearing a single fact other than an arrest.

DNA is a slippery slope. You have left DNA in every home, bar, restaurant, gas station, etc. you have ever been too. Imagine your DNA showing up at a serious crime scene and you having to answer questions about years ago – just because you got arrested for too many parking tickets? Bad law.

NFIB v. Sebilus, 567 U.S. ___ (2012)

The Sebilus decision might be one of the better examples of the Supreme Court wanting to rule in a particular way but struggling to find the justification for doing so. The Court upheld the constitutionality of the Affordable Care Act, but could not do so under the Commerce Clause as it was expected to do. Instead, Chief Justice Roberts first acknowledged that the Commerce Clause did not authorize the Congress to compel individuals to buy a product. In this case, the product is health care insurance.

Determined to find that the statute was constitutional, the chief justice fell back upon the taxing authority granted to Congress by the Constitution in ruling that the shared responsibility payment required of those who failed to obtain coverage was a tax. Some of the dissenting justices concluded that because it is levied upon violation of the law, the payment is a penalty and not a tax.

WHY IS THIS BAD?

This should probably be its own article! Hate Obamacare? Love Obamacare? Because either way, this decision still stinks. Congress cannot force you to buy healthcare – the same way they cannot regulate your daily diet. Since the 1920’s, Congress has used the Commerce Clause for..well, pretty much whatever they wanted.

Congress based Obamacare on the Commerce Clause…not the taxing authority granted to them. But, the Court bent over backwards to find (from some imaginary plain of existence) that Congress had been using their taxing authority. (Oh, that makes no sense!)

You do not want the United States Supreme Court making decisions like this. It is an unwarranted reading into legislative intent and that is not the Supreme Court’s role. (For those of you that love Obamacare think Bush v. Gore!)

Kelo v. New London, 545 U.S. 469 (2005)

The city of New London took private property under its eminent domain powers. Instead of using the land for a public purpose, the city sold the land to private developers under the claim that private development of the property would create jobs and generate tax revenues. The Supreme Court ruled that the taking of the property did not violate the Fifth Amendment.

According to the majority decision, the taking of the property was for a public use even though it was not being used by the public. The Court circumvented the language of the “takings clause” of the Fifth Amendment by arguing that the use of the phrase “public use” should not be literally interpreted. Instead, the majority of the justices agreed that the better interpretation of the phrase should be “public purpose.

WHY IS THIS BAD?

Property is the most valued asset in the United States. Always has been. And it is one of the most protected rights. So, the fact that a government can use your property for whatever it wants just by saying “public use” is a little off to me. Ok, so maybe they have to go through some time/cost/scrutiny to get it – but in the end, they will get it.

Funny side note: Justice David Souter was the deciding vote in Kelo. Justice Souter outraged so many that people in his hometown tried organizing a petition to get Souter’s home taken by the local government and used as a “public use”.

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