Residents in McLean, Va., should beware – if you live near Justice Antonin Scalia and you are growing pot in your home, the justice may just come in your house and conduct a search – or at least it seems so from a hypothetical he posed during oral arguments today in the case of Virginia v. Moore. And the attorney representing Scalia’s home state said he would have the right to do it.
“Suppose I think that my neighbor next door is growing marijuana and I have probable cause to believe that, all right?” Scalia asked Stephen McCullough, the Virginia deputy state solicitor general who argued that evidence from a search incident to an arrest – an arrest that turned out to be illegal under state law – should still be admissible where probable cause existed.
“So I go in and search his house,” Scalia continued, “and sure enough, there is marijuana. And I bring it to the police’s attention, and they eventually arrest him. Is that a lawful search?”
“If there is state action,” McCullough replied.
“I’m a state actor, I guess,” Scalia said coyly, drawing laughter. “You know, a Supreme Court Justice should not be should not be living next door to somebody growing marijuana. It doesn’t seem right.”
“That’s not a smart neighbor,” McCullough added. More chuckles. “If you have state action and you enter into someone’s home, then the Constitution affords a heightened level of protection.”
Scalia got serious again. “Don’t dance around,” Scalia admonished. “Is it rendered an unreasonable search by the fact that I’m not a law enforcement officer at all?”
“I don’t think the fact that – - no,” McCullough answered.
“So any federal employee can go crashing around conducting searches and seizures, so long as he has probable cause?” Scalia asked.
“That’s correct,” McCullough said.
“That’s fantastic,” Scalia responded, drawing more laughs.
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“Do you really think that?” Scalia persisted.
“I think if there is state action, it doesn’t matter that you’re wearing a badge or that you’ve gone through the police academy,” McCullough responded.
“[What if] you are an administrative law judge at the Bureau of Customs?” Scalia asked. “It doesn’t matter?”
“I think that’s right,” McCullough said.
“What about a janitor?” Scalia persisted. “A federally employed janitor. His neighbor is growing marijuana, and he’s just as offended as a Supreme Court justice would be. Can he conduct a search?”
“I think if he’s doing it on behalf of the state, the answer is yes,” McCullough answered.
“Wow,” Scalia finished.