In an exchange about the constitutional right to privacy with Sen. Sheldon Whitehouse (D-R.I.), the discussion — naturally — devolves into pot use.
But Sotomayor puts to rest any questions about her own interest in the matter: “I’m not an expert in marijuana growing.”
– Article from Politico.
SOTOMAYOR: I think, as I understand your question, Senator, that there are two issues, if not more, but the two that I note as more starkly for me in your question is the one of the search and seizure and the Fourth Amendment as it applies to taking evidence from an individual and use it against him or her in a current proceeding.
WHITEHOUSE: Yes, which is a constant. That stayed the same.
SOTOMAYOR: That (inaudible) the structure.
In — not so long ago, the Supreme Court dealt with a technologically new situation, which was whether an individual had a right to expect the warrant to be gotten before law enforcement flew over his or — I think it was a “his” in that case — his home and took readings of the thermal energy emanating from his home, and then going in to see if the person was growing marijuana.
WHITEHOUSE: The (inaudible) case.
SOTOMAYOR: Exactly. And in that case, the reason for that case is that, apparently — I’m not an expert in marijuana growing — but apparently, when you’re growing marijuana, there’s a — certain heating lights that you need, at least that’s what the case was describing, and it generates this enormous amount of heat that wouldn’t generally come from a home unless you were doing something like this.
And what the court did there, in an opinion by Justice Scalia, I believe it was, is it looked at the embedded questions of privacy in the home that underlied the unreasonable search and seizure. And the court there, as I mentioned, determined that acts taken in the privacy of one’s home would commonly not be expected to be intruded upon unless the police secured a warrant.
And to the extent that the law had generally recognized that, if you worked actively to keep people out of your home — you locked your windows, you locked your doors, you didn’t let people walk by and peek through, you didn’t stand at your front door and show people what you were doing, that you were exhibiting your expectation of privacy. And to the extent that new technology had developed that you wouldn’t expect to intrude on that privacy, then you were protected by the warrant clause. And the police had an obligation to go talk to a magistrate and explain to them what their evidence was and let the magistrate — I use the magistrate in that more global sense. It would be a judge, but in the — you would let a judge decide whether there was probable cause to issue the warrant, reasonable suspicion, probable cause — probable cause to issue the warrant.
That’s how the courts address the unreasonable — or have addressed, the Supreme Court has, the unreasonable search and seizure and balance the new technology with the expectations of privacy that are recognized in the Fourth Amendment.
Click here to read the transcript of the Confirmation Hearing.