When the Supremes held in Maryland v. Buie that police, arresting a defendant inside a house, had the right to conduct what is euphemistically called a protective sweep, it literally opened the door to enormous 4th Amendment mischief. In the name of officer safety, police would now “search” a home, the theoretically most protected sphere we have, to make sure there was no one hiding in the closets who might emerge and shoot a cop.
Of course, protective sweeps quickly devolved into checking rooms where contraband was naturally in plain view. Protective sweeps soon involved opening drawers and cabinets (you never know whether there’s a little person hiding in a drawer, you know). The lines quickly blurred and warrantless searches of homes became commonplace under the rubric of a protective sweep. But what’s the 4th Amendment when compared to officer safety? Isn’t officer safety more important than anything else?
In the spirit of remembering the rubric while forgetting the rationale, Eugene Volokh brings us the 9th Circuit decision in United States v. Lemus, which does the unthinkable.
Of course, protective sweeps quickly devolved into checking rooms where contraband was naturally in plain view. Protective sweeps soon involved opening drawers and cabinets (you never know whether there’s a little person hiding in a drawer, you know). The lines quickly blurred and warrantless searches of homes became commonplace under the rubric of a protective sweep. But what’s the 4th Amendment when compared to officer safety? Isn’t officer safety more important than anything else?
In the spirit of remembering the rubric while forgetting the rationale, Eugene Volokh brings us the 9th Circuit decision in United States v. Lemus, which does the unthinkable.
In United States v. Lemus, the Ninth Circuit held that such a search of part of the home is constitutional, even without any reasonable suspicion, at least when that part of the home “was a place from which an attack could be immediately launched.” The gun that was found in plain view during the search could thus be used as evidence to convict Lemus of being a felon in possession of a gun. The court noted that the living room door was open, “which created additional hazards for the officers”; but I don’t think that can be seen as a limitation on the holding, since a potential attacker could easily open a closed door as well. And the court even notes that “[a] bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another,” which suggests that the searched room doesn’t even have to be one that has a door leading out to the place where the arrest happens.
As noted in Judge Kozinki’s dissent, at least in Buie, the police are already “legitimately” within the home. Here, the majority has completely disconnected the sanctity of the home from the need for police safety. From there, Judge Kozinski indulges in something few judges ever do. He openly states the truth, what quietly happens in real life while other judges color it over with platitudes and facile denials.
How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plain-view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it. This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Longoria then lifted the couch cushion “to make sure” and found a gun. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant — if they could — based on what they saw, before rummaging through the couch?
The Lemus holding doesn’t merely disconnect the Buie rationale from the rubric, but extends it to a degree that is barely appreciable at first glance.
Add to this calculus the fact that police are frequently in the position of picking and choosing when and where to arrest someone. In instances where they know in advance that they are going to take someone down, they can plan their arrest so that the individual is in his home, near his home, near your home, wherever they know they can find him, at the time of arrest. It’s not exactly rocket science to do a little advance planning so that they get the opportunity to do a littlewarrantless search protective sweep in the process. Two birds, one stone. Efficiency in government.
While this was bad enough under Biue, where the police could effectuate an early morning takedown at the home of some suspect, and get a free search of the home in the process, Lemus opens up an entirely new strategy of doing the takedown outside the front door of someone else’s home, for which there is no probable cause whatsoever but in which the police have a really strong interest in searching.
And don’t expect a knock on the door before the cops burst into the neighbor’s house. After all, it’s a protective sweep, and even though they may know with absolute certainty that there’s no threat inside, they still have to maintain the appearance of protecting officer safety. Safe officers don’t knock. That would just be stupid.
[The panel] allows police to search an arrestee’s home without suspicion, so long as the arrest is within a rifle shot of the home. [Emphasis Added.]Say that a decent marksman can accurately fire a rifle from a thousand feet away. That means that any house within a thousand feet of an outdoor arrest would now, under this ruling, but subject to a warrantless, suspicionless search. It might involve the home of the person arrested. It might involve the home of some nice family wholly unrelated to the arrestee. It might involve any home the police are itching to enter. After all, you never know where a bullet can come from, and isn’t officer safety the most important thing involved? Bear in mind, the decision requires no belief, nor any basis for a belief, that there is any threat to the officers. It’s prophylactic, better safe than sorry.
Add to this calculus the fact that police are frequently in the position of picking and choosing when and where to arrest someone. In instances where they know in advance that they are going to take someone down, they can plan their arrest so that the individual is in his home, near his home, near your home, wherever they know they can find him, at the time of arrest. It’s not exactly rocket science to do a little advance planning so that they get the opportunity to do a little
While this was bad enough under Biue, where the police could effectuate an early morning takedown at the home of some suspect, and get a free search of the home in the process, Lemus opens up an entirely new strategy of doing the takedown outside the front door of someone else’s home, for which there is no probable cause whatsoever but in which the police have a really strong interest in searching.
And don’t expect a knock on the door before the cops burst into the neighbor’s house. After all, it’s a protective sweep, and even though they may know with absolute certainty that there’s no threat inside, they still have to maintain the appearance of protecting officer safety. Safe officers don’t knock. That would just be stupid.
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As far as I can tell, it would be better to scrap every search and seizure case and start all over with the text, which goes something like that people won’t be subjected to unreasonable searches and seizures and no warrants shall issue except upon probable cause.
It’s hopelessly screwed up at this point. But Kozinski also has a very good point: the roller coaster started with a few decisions favoring the criminal defendant, but after that it has all favored the cops, and at this point has favored them so much that there’s no going back without starting over.
So I think that’s what we should do. Not that there’s any likelihood of that.
Now you know why I’ve been fighting the application of classic 4th Amendment jurisprudence to the digital age. We’ll end up in the toilet eventually, but can’t we at least start out with half a chance at stopping unconstitutional searches?
I’m also finding this hard to stomach and would have never heard about this decision had it not been for this Post. Over at Injustice Everywhere, Packratt did a piece on the 600 + cops that swarmed 100 homes in Riverside Cal. and searched in a similar fashion. BTW, there was no nationwide outrage. Will this be the last straw?
It’s bullshit like this that starts revolutions. I fear that after this, anyone can now be tagged as a terrorist just for speaking against decisions like this that degrades the Constitution.
In Texas, we have a tendency to shoot Mofos breaking in to our homes and we don’t administer first aid or call for an ambulance. Something about being sued prevents that. Thanks.
Sir, what can the rest of us do as for our part in the fight? Thanks for looking out for the public at large.
Keep the faith and keep spreading the word.
If one wishes to help, start reading AND learning the Constitution. Ignore the court decisions because the courts have NO AUTHORITY to interpret the Constitution. The Constitution is superior to the Courts, i.e. the courts were created by the Constitution. Subordinates do not have the power to define the superior. If one is unsure of what this means, one should tell one’s boss what the boss’ job is next time one goes to work.
The government lies. The courts lie. We the People are the BOSS. We the People have the final say. But We the People have been brain-washed. When one finally awakes, release the anger carefully. Do what it right always.
Sorry, but the psych ward is down the hall to the left.
gonna be a lot of black armbands and resignations if they don’t start doing the job properly.
I trust that you don’t mean that in a threatening way.
Actually I mean it as damn good advice, but if they want to take it as a threat, I won’t try to dissuade them. It only becomes a threat if they perform the precipitating event. So one might say that they threaten themselves if they have guilty knowledge of plans of which I am unaware
Anyone, breaking into my home, Police or not, will be SHOT. I will not tolerate a warrant-less search of my home. No Trespassing means no one, not even police may come onto my property without legal cause.