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.