Tuesday, March 2, 2010

9th Circuit Court: 4th Amendment is Just A Suggestion

The 9th circuit court (not especially known for exercising good judgement in the past) has recently decided that the police can conduct a search of a person's home without any justification at all. The majority decision can be found here.  An excerpt:
"The officers continued to tell Lemus to come out, but Lemus instead started to walk into the apartment. The officers were there in an instant, taking hold of Lemus and handcuffing him before he could fully enter the doorway and retreat into his living room.

Detective Longoria thought he’d better check to make sure no one was hiding out in the apartment. He sent Gerardo and Orozco in. They scanned the living room, and didn’t see anyone. Just a couch and a TV. Checked the bedroom and bathroom too. Negative. Lemus was alone.

Diaz, in the living room, got Detective Longoria’s attention. Wasn’t there something sticking out from the couch? Detective Longoria thought it looked like the butt of a weapon. Since Lemus was a felon, having a gun would be a crime. Detective Longoria lifted the couch cushion to make sure, and confirmed that it was a semi-automatic handgun. It was later determined to be a Sturm and Ruger, 9 millimeter.

Detective Longoria let the cushion fall. He thought he should get a search warrant before touching the gun—he didn’t want to lose the chance to seize it. He left the officers at the scene to keep things secure, and headed back to the station. The warrant was issued, and the Ruger was seized."

So the police, by their own account, arrested this man outside his house, searched his house without a warrant, probable cause, or exigent circumstances, found incriminating evidence against him, and only then pursued a warrant so they could come back and claim what they had found.  As the dissenting judge in the case notes (dissenting opinion here), this is in clear contradiction to the purpose of the 4th amendment. 

The dissenting Chief Judge Kozinski, writes:
This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun “in plain view”—stuck between two cushions of the living room couch—and we reward them by upholding the search.

Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.”
United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). The place where warrantless searches are deemed “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980).

Government encroachment into the home, which I lamented three years ago in United States v. Black, 482 F.3d 1044, 1045-46 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus’s home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete.

Welcome to the fish bowl.

One amendment down. We'll see if they can manage to gut a few more before the year is out.

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