Torchwood: Miracle Day Episode 9

Nine down, one to go. At this point, we’re done discussing the plausibility of this thing.

There is, however, one rather interesting interaction about warrants. A police officer wants to search the Cooper home, and Gwen says he can’t go in without a warrant. I believe that this is generally true in the UK; it’s usually true in the US.

Two things though. First, in the US, warrants are only needed for unreasonable searches. This has been defined by the Supreme Court to include any search in an area where there is a reasonable expectation of privacy. Homes definitely count, as does the “curtilage,” i.e. the area immediately around the home. But there are exceptions, and if the cops believe that a crime is currently in progress, they can frequently conduct a search without a warrant. The thing is, that the crime in progress usually needs to be unrelated to the search as such. For example, if the cops reasonably suspect that a person is being held hostage or otherwise in danger, they can enter a home without permission or a warrant. But if the intention is to collect evidence, they do need a warrant.

The question is whether sheltering a “Category One” would count under the exceptions to the warrant requirement, and it really doesn’t seem like it would. Even if the cops know for a fact that a house contains, say, a meth lab, they need a warrant to conduct an actual search. Because Gwen’s dad isn’t being threatened or otherwise put in danger–indeed, the government wants to do far worse to him than the Coopers!–the cops are going to need a warrant for that.

But second, the cop says that an act has been passed which creates an exception to the warrant requirement when there is a suspicion that an “unmaintained” Category One is being sheltered. Now it may be the case that the warrant requirement can be modified by statute in the UK, but it definitely can’t in the US. The only constitutional right that can be modified by statute is habeas corpus, which the Constitution specifically provides may be suspected by Congress. U.S. Const., Art. I, sec. 9, cl. 2. It’s remotely plausible that the Supreme Court might consent to the categorization scheme as a necessary evil given the magnitude of current events. But warrants are something the Court is pretty familiar with, and suspending them by statute just isn’t something the Court is going to permit.

Now we’re all just hoping that the writers have something fantastic up their sleeves, because otherwise this whole thing is just looking lame.

7 responses to “Torchwood: Miracle Day Episode 9

  1. Ever heard of the Magistrate’s Blog? It’s from the POV of a pseudonymous judge in the UK, and it might have links capable of helping to sort out the Welsh angles on this episode.

  2. Thanks for finding something interesting about the episode to write about!
    Interestingly, think about what Torchwood are trying to do: switch off immortality… which will probably kill Mr Cooper anyway! Indeed, there’ll be mass death of Cat 1s and possibly Cat 2s (Rex? We don’t know how healed he is after two months… and there isn’t a lot of discussion about the state of the world aside from death ovens back open. Considering all the Club47s and Dead is Dead, this is a lot of silence now.). Will Torchwood be responsible for mass murder as they didn’t kill these people in the Government approved way? And there might be other post-Miracle laws suddenly tripping people up (as per your post apocalypse post?).

    Actually, a more direct question: America discusses closing its borders like China did. Does that require a law change of any kind, or is that something America could do now if it wanted to?

    • While legally speaking I suppose we could, in practice that’s effectively impossible. We’ve got two very long borders and a lot of economic incentives for people to cross them*.

      Incidentally, if you’re referring to pre-late 20th century China I think you’ll find that reports of closed borders are somewhat exaggerated. China was largely closed to Europeans. They had trade and contact with east Asian states. Sort of the same thing as text books which say that Rome was the largest empire of the ancient world or that there was no history during the inaccurately named ‘Dark Ages’.

      *I.e. drug trade, guns and bullets for Mexican gangs, fleeing repression/wars in southern America, seeking jobs etc.

  3. What crimes allow police to conduct a search without warrant? Does somebody have to be in imminent danger?

    • Like they said, if the police believe that an unrelated crime is currently in progress. Usually it would be things like break-ins where it’s fairly obvious that the person is breaking the law.

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