by Bill Simon
“Implied Consent” Deemed to be contrary to the Fourth Amendment by Unanimous Ga Supreme Court
A little bit of news this past weekend is a unanimous decision by the Ga Supreme Court that concluded that Georgia’s OCGA § 40-5-55 (“implied consent” to a bodily fluid extraction by law enforcement) was unconstitutional as it relates to the U.S. Constitution’s Fourth Amendment.
The link to their decision is above, so I’m not going to play legal analyst on the details. The relevance, however, to the current legislative session is that laws written and approved by “lawmakers” CAN be found to be “unconstitutional”, regardless of what the Legislature’s “legal counsel department” claims.
In fact, on an individual basis, each legislator swears an oath to “Uphold and Defend” both the Georgia state constitution, as well as the U.S. constitution…and they do so without any qualifiers of “Well, the legal counsel told us this was okay to write and pass.”
In fact, anyone who is still in the legislature who last voted for the implied consent law (2001 is the last date noted in the law books) should resign because, clearly, they voted for an unconstitutional law, and did not vote to “uphold” or “defend” the rights of the people of Georgia against unreasonable search and seizure, and violated their oath to God.
So, contrary to what people like BJ Pak believe, yes, the entire General Assembly CAN be found to be entirely wrong.
Now, I think this decision regarding the unconstitutionality of “implied consent” is going to be very related to what the State Senate decides to do with…
SB-94 & The Fourth Amendment
To summarize: When SB-94 first passed the State Senate, it was 3 pages long and had 66 Lines in it, and all it had to do with was eyewitness identification procedures in crimes.
Since being rammed thru the House with the full contents of HB-430 attached to it (a bill that greatly increases the power of police to engage in activities that may also be found to be in violation of the Fourth Amendment…e.g., secret wiretaps…secret search warrants…etc.) and approved a week ago, SB-94 is now 34 pages long, and has 1,148 Lines of proposed new law.
The significance of this increase in scope of SB-94 is that it really only went thru one legislative chamber’s committee vetting process (i.e., House Judiciary Non-Civil), and a committee chock full of a minimum of three former prosecutors…i.e., people allowed by legal precedent to employ lying to trick people into thinking that what they claim is the truth about any subject, whether it is criminal law or not.
The manipulation and secretive method in which it was put thru the House Judi-Non-Civil should give the State Senators enough of a pause to consider that such a massive expansion of granting more power to police should not be passed without your own chamber’s criminal law-related committee being able to examine it without the influence of a stacked committee and sub-committee.
And, permit me, for a moment, to bring-in RFRA into this discussion of SB-94. As we observe the LGBT “community” going apesh*t over presumed interpretations of RFRA (thanks, no doubt, to the hysteria whipped-up by the likes of one former Georgia Attorney General named Michael Bowers), people like Mike Bowers and the Atlanta Journal & Constitution’s columnist Jay Bookman are woefully ignoring the actual impact that a law like SB-94, as it currently exists, could impact, not only the LGBT community, but anyone else in a truly detrimental way.
In order to understand this, I have to bring-into the discussion another OCGA law on the books that prohibits sodomy. Sodomy is defined by OCGA 16-6-2 as:
“(a) (1) A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”
So, here is a scenario for you folks: Explicit in SB-94 is the ability for police or District Attorneys to obtain a search warrant based on their “belief that a crime is about to be committed.” And, they can hold onto that warrant for a minimum of 60 days, out of view of the public, and they can then execute it when they feel like it.
Now, the problem with catching adult males and/or adult females engaged in the act of sodomy (I specifically use the term “adult” so as to differentiate between those acts of sodomy involving under-aged children and those carried-out by consenting adults) is actually a challenge as most such acts occur behind closed doors, right? (Bonus points to the person who is the first to correctly tells me WHICH Georgia “Attorney General” is known for successfully prosecuting a case of sodomy in Georgia.)
So, if SB-94 passes, how easy do you think it’ll be for police to obtain an “anticipatory search warrant” (i.e., based on their belief that a crime is likely going to occur) when they observe a gay male couple or a gay female couple walking down the street and they watch them go into a house where they both live? Not to get graphic, but how else but through an act of sodomy can the gay and lesbian community engage in “sex?” What a piece of cake it will be under SB-94 to obtain a search warrant based on the belief that a “…crime is about to be committed.”
I’m not saying SB-94 was designed for that purpose, but there is NOTHING that will stop law enforcement from obtaining such types of warrants for sodomy by folks in the LGBT community, or even acts of any other type of “crime” that currently exists in Georgia law.
But the “anticipatory search warrant” does not just apply to laws dealing with sex. It applies to ANY law….and any member of law enforcement can overreach this authority to the detriment of many innocent people if this law passes. The fact that SCOTUS found it to be legal under certain cases does not mean that this law will stand that way for every other case. And, as we recently discovered with Georgia’s 14 year-old “implied consent law,” not every law passed by the General Assembly is valid and constitutional.
Buried in SB-94 is the “good faith” clause that can and will lead this state on the Road to Hell when you grant such powers to an already out-of-control law enforcement community intent on killing or maiming anyone they damn well please as an Officer of The State/King…who is engaged in “…just executing a search warrant based on a law we think is about to be violated.”
Attention: Rand Paul, Jeb Bush, Scott Walker, Ted Cruz & others
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