Seizing The Law

Police officers in Toledo, Ohio wanted to see what kind of criminal activity Desarie Overton was conducting in her house. Unfortunately, she wasn't willing to invite them in. So, they got an arrest warrant and went a-looking.

More accurately, the officers kicked in her door with a warrant stating that Ms. Overton was "harboring drug dealers." It's difficult to write that without laughing. What they found was Ms. Overton and rock cocaine rolled in a $20 bill.

She was convicted by a court for possession of a controlled substance and was sentenced to six months in jail. The sentence has not been served because she had been waiting to see what the Supremes would do.

The waiting is over. Four of the High Courters (Ruth Bader Ginsburg, John Paul Stevens, David Souter and author, Stephen Breyer) determined that the law in this Fourth Amendment area is well- settled. And using that search and seizure standard, they found that this warrant was "clearly inadequate."

Here's the deal. Ms. Overton's attorney argued before the Supremes that arrest warrants were routinely signed by a city clerk. In and of itself, that doesn't seem to be such a big deal. But the thing is, clerks don't consider, and in fact are not trained to consider, whether or not there is a legal basis for issuing the warrant. Basically, the clerks just give the officers what they want. Frightening, huh?

Ms. Overton's attorney urged that this was a normal and routine practice for Toledo. He concluded that "susbtantial numbers of persons in and around Toledo are apparently being arrested in violation of their constitutional rights. Four members of the High Court apparently concluded the same thing. The Court didn't actually take this case, because it is bedrock law. But those four members felt the need to make some remarks.

The Ohio state courts, on the other hand, found nothing in this case that was "the slightest bit remarkable." Well, I imagine not, especially since this was a 'normal and routine course', down which they no doubt had travelled many times.

Toledo's county prosecuting attorney made the point even more forcefully, noting that this case produced "no startling rule of law...no eye-popping doctrine...and no astonishing declaration." Ok.

When Desarie Overton's case went to a county court of appeals, she did find one ally - not that it mattered - who noted that the "clerk had no way to independently evaluate whether a warrant was proper."

And why would he or she? Judges are equipped, no obligated, to determine if probable cause is present to support a warrant, arrest or otherwise. Passing that task to a clerk is nothing less than a dereliction of duty.

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