Maryland v. Buie (1990) holds that, when a suspect is arrested in a home,
[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched…. [S]uch a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.
But what if a suspect is arrested immediately outside the home? May the police search the space immediately adjoining the outdoor place of arrest, in case someone is lurking nearby? This is especially important because, if they may, then they would also be able to seize any evidence of crime that they find in “plain view” inside those parts of the home — and use this evidence in prosecuting the arrested person.
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.
In today’s dissent from denial of rehearing en banc, Chief Judge Kozinski (joined by Judge Paez) sharply criticizes the panel’s decision, arguing that it’s inconsistent with the reasoning of Buie and that it dramatically erodes the protection of the home against searches — especially when coupled with the “plain view” doctrine:
Buie was a case where the police were already legitimately inside the home when they arrested the suspect. The question was whether they could look in the area immediately adjoining the arrest where someone who could ambush them might be hiding. The Court recognized that police inside an arrestee’s home are peculiarly vulnerable because they are on the suspect’s turf — a place where someone dangerous might be hiding. The risk is present in every case because a suspect’s home is inherently dangerous for police who must enter to make an arrest. But Buie says nothing at all about police who conduct an arrest outside of the home. It does not authorize police to enter a home for the very purpose of conducting a search. That is the situation we have here…. [T]o use the [Buie] exception as a wedge for entering the home turns Buie inside out….[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. No other circuit allows entry into the home on less than reasonable suspicion….
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?
If the officers and detectives had truly feared for their safety, they would certainly have moved away from Lemus’s apartment once they took him into custody. Instead, they did the very thing that Buie says puts a police officer in danger: They went inside a suspect’s home. They didn’t just peek either, which might be consistent with a claim that they were checking to make sure they could retreat unmolested. The officers swept every room; Longoria and Diaz hung out in the living room long enough to study Lemus’s couch and dig through its cushions. The officers clearly took advantage of Lemus’s arrest to conduct a leisurely search of his home looking for contraband….
Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.
I’m inclined to agree with Chief Judge Kozinski on this — if the panel majority’s opinion correct, then indeed the police would have broad authority to search people’s homes so long as they’re arrested nearby, even if they walk out of the house when told to “come out with their hands up.” In principle, this might even extend to authority to search other people’s homes (even with no specific articulable suspicion of danger), since presumably the danger could come not just from the arrestee’s home but from the home of an arrestee’s friend. I don’t think Maryland v. Buie authorizes such a departure from the Court’s general presumption that the Fourth Amendment does not allow searches of the home without articulable suspicion (and usually a warrant).
Soronel Haetir says:
Especially when put next to Gant I would have to think this sort of search needs to fail. If you can’t search a car once an arrestee is away from it you sure as hell shouldn’t be able to search a house under similar circumstances. Far too much is allowed in the name of officer safety.
February 18, 2010, 11:14 pmSean M. says:
What’s also interesting is that Kozinski is continuing his attack plain view, furthering his criticisms of the doctrine first leveled at it in Comprehensive Drug Testing. It appears this is Judge Kozinski’s new project.
February 18, 2010, 11:32 pmOrin Kerr says:
Sean,
Yes, Judge Kozinski is probably the most passionate proponent of strong Fourth Amendment protections on the federal bench today. I don’t generally think his opinions in the area are particularly good, as his passions get the best of him. But he is certainly passionate about it.
February 18, 2010, 11:35 pmMalvolio says:
And while a police officer is searching one home, isn’t he at risk of attack from neighboring homes? Doesn’t this decision (if taken seriously, which I’d advise against) authorize search of any contiguous area around the arrestee only bounded by open field or water at least 1000 meters across?
February 18, 2010, 11:49 pmMike says:
Yep. Guy across the street might have a sniper rifle.
February 19, 2010, 12:55 amJay says:
Does anyone have suggestions about why no other 9th Circuit liberal judges joined the opinion (or, for that matter, why enough of them didn’t vote for it to take it en banc).
February 19, 2010, 12:59 amJasonF says:
I’m generally a commercial litigator, but about ten years ago, I had a criminal case (in Illinois) in which my client got in a fight with his neighbors that culminated with my client brandishing a gun and threatening them. My client then returned to his apartment, put his gun down, and walked out onto his front porch where he was promptly arrested. My client’s apartment was down a flight of steps, and according to the police, when they arrested my client, they saw the gun leaning against a wall at the bottom of those steps, so they went into his house and seized the gun as part of the arrest. We were able to get the gun suppressed — the law in Illinois was very clear that if the police arrest you outside your home, they can’t go into your home to seize a weapon absent some exceptional circumstances (they have reason to believe you have an accomplice in the house, the weapon is within your reach, and so on).
The happy ending is that my client — who was really just a hot-headed, stupid kid who was waving a gun around to look tough, not because he intended to hurt anybody — dodged a sentence of up to 30 years on the gun charge. Without the gun in evidence, he wound up getting a year’s probation for the fight and apparently learned his lesson because to the best of my knowledge he’s kept his nose clean since then.
February 19, 2010, 1:40 amNinth Circuit says:
The Ninth Circuit has a reputation for being a very liberal circuit. But the reality is that there’s about six or seven very liberal (by today’s standards) judges, and the rest are fairly right of center, especially on criminal cases (especially if they don’t involve the death penalty). I believe you actually have a better chance of winning a criminal appeal in the Fifth Circuit than the Ninth. Of course, because of some high profile decisions (and thanks to Reinhardt), the Ninth has a very much undeserved reputation of being super liberal. Thus, if you’re a criminal defendant, unless you get one of the handful of very liberal judges, you’re going to lose.
February 19, 2010, 2:11 amChappy says:
Earlier in my career I was a police officer and then a probation officer. The number of times that a person exited a residence during the course of an arrest taking place outside of that residence, with the intent of interfering with that arrest, was non-trivial. In my experience it was usually a spouse, child, parent, or roommate of the arrested, and the interference frequently involved physical violence or the threat of same. I was amazed at how often one arrest turned into two or three. (How about NOT interfering and coming down to post bond later? MUCH more helpful…) Circumstances oftentimes preclude immediately leaving the location following the arrest. Preemptive entry into the residence to negate a potential threat is not an abuse of the Fourth Amendment. Extending that into a full fledged search is.
“And while a police officer is searching one home, isn’t he at risk of attack from neighboring homes?” Nice straw-man. Didn’t happen, and if it did anything seized would most likely (appropriately) be suppressed. Any officer with much time on the street could readily articulate why the residence of a subject being arrested presented a potential source of a threat to officer safety (see spouse, child, parent… above). Much harder to successfully articulate same about the house next door or down the block.
“Far too much is allowed in the name of officer safety.” When I read the annual line of duty death summaries, I think perhaps not.
February 19, 2010, 3:45 amDavid Schwartz says:
Chappy: So your argument is that it’s okay to search even without reasonable suspicion because the officers had reasonable suspicion? The crux of this holding was that reasonable suspicion is *not* necessary to search (and seize evidence in plain view) an area near an arrest that an attack could be launched from so long as the police can claim (without laughing) that they were only searching to dispel any risk of attack and that they really did “just happen to notice” the gun butt sticking out from under the sofa.
February 19, 2010, 4:19 amTim says:
Really? Is there no assumption of risk in becoming a police officer?
In the Post-Gant world, I can’t see how this decision could stand. Police officers had been abusing the 4th Amendment with respect to automobiles for nearly 30 years, and fortunately SCOTUS put a stop to that.
I tend to think the “officer safety” apologists tend to forget that the result of a suppression hearing doesn’t mean that they “can’t” do a “sweep” of the area in the next case with a similar fact pattern. It just means that any evidence gathered in the process won’t be used. I fail to see how that’s a problem at all. Want an exception to the rule? Get a warrant, and the defendant won’t have a leg to stand on.
February 19, 2010, 5:47 amJake says:
If I recall correctly, under Michigan v. Long the police can still do a Terry-like “protective sweep” of a car without independent probable cause. Although this sweep is supposed to be more cursory than a Belton-style search incident to arrest, in reality it seems to be a nice work-around Gant.
In my opinion, however, this case creates some perverse incentives because under Payton v. New York the police cannot enter a home to arrest someone without a warrant even if they have probable cause. With this decision, if the police can convince the suspect to come outside they can arrest him and use this decision to search the house and seize any evidence in plain view.
February 19, 2010, 6:40 amChappy says:
David, I think where the majority was coming from, and my point, is that the officers can do a protective sweep of the residence, without reasonable suspicion; and that allowing them to do so is based on a reasonable awareness of the very real threats officers face under these limited circumstances.
And, if evidence is in plain view, it should be admissible. The determination of whether plain view existed is the courts. What I didn’t say clearly in my first post but meant (“Extending that into a full fledged search is.”), is that I think the court could, perhaps should, have found that the search in this case went beyond an effort for officer protection. What I think the courts should hold as allowable is a quick sweep of a residence to ascertain the presence of others and an assessment of any threat they present. Plain view would be a convicted felon’s shotgun leaning against a wall, drugs siting out on a table – not so much an “object” under sofa cushions. Absent the presence of other persons in the residence, your done, and if you want to search further, get a warrant. So, I agree with the court in allowing entry, not so much that this was plain view.
Tim, so the officers (again, with real world experience similar to mine) have to choose between not entering at all, and remaining in a potential threat environment and getting a warrant to preserve admissibility, or entering to secure the area and having evidence that was clearly in plain view declared inadmissible?
There is an assumption of risk in becoming a police officer, but I think the Constitution affords limited mitigation of that risk as I described above.
February 19, 2010, 7:36 amXenocles says:
Why does there have to be an arrest involved at all? Sometimes I feel endangered just walking down the street, perhaps a like-minded officer could spin his paranoia into justification for a random search. Actually, would it even be a search in the legal sense? If all I do is kick down a door in order to verify everything’s safe can I then claim that I wasn’t on a quest for evidence when I find evidence?
February 19, 2010, 7:39 ampublic_defender says:
Thank you Judge Kozinski. When it comes to making up excuses to search based on “officer safety,” otherwise brave and competent police officers sound like paranoid, frightened little girls. Elected judges are often too afraid to make the obvious holding that the cop is lying because the FOP is one of the most influential voices in judicial elections. Prosecutors love to ask, “Are you calling the cop a liar?” They know that ends the argument (unless you are lucky enough to have a video of the transaction that the cop doesn’t know about).
This case also shows how stilted the law has become as a result of judges who refuse to find that a cop is lying (or even grossly exaggerating). In practice, the rule is not whether the cop had a reasonable fear for his safety. The rule is that the cop gets to search anything as long as he claims that his safety is at risk, regardless of the plausibility of the claim. Widespread acceptance (and even encouragement) of perjury is warping this area of the law.
This case also illustrates that libertarians find themselves on the “liberal” side of a lot of issues. Making libertarian arguments is one way we criminal defense lawyers can win cases in front of a what is basically a conservative bench.
February 19, 2010, 7:57 amChauncey says:
…the 4th Amendment has been a dead-letter for the past 10 years — of moderate interest only to historians & academics.
The 4th means exactly what any government actor says it means on any given day, in any given instance… nothing more, nothing less.
February 19, 2010, 8:01 amDavid Chesler says:
What Xenocles said. Throw in some “defensive stance” too.
(It’s related to the “They put their life on the line for us every day” excuse. I write software for a living that benefits people. I don’t make many enemies doing it, but there’s still a non-zero chance that I’ll die doing my job [most likely as part of the commute.])
February 19, 2010, 8:15 amBuddy Hinton says:
Unlike Second Amendment proponents, or First Amendment proponents, or even Tenth Amendment proponents, Fourth Amendment proponents are carried away on a wave of hysterical emotion./Kerrmode Seems to be his standard response.
I find this passage about systemic police dishonesty in evading 4a to echo Justice Scalia’s concurrence in Gant. Current 4a jurisprudence makes the police lie, and incentivizes courts to accept those lies as a matter of law. In most cases, each considered in isolation, this gambit might be considered as a good thing because it avoids the dreaded Exclusionary Rule and makes sure a guilty party is punished. Cumulatively, though, it is destroying America.
February 19, 2010, 8:21 amColin Miller says:
I agree and argue as much in my forthcoming article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. Moreover, if you look at the Buie opinion closely, I think it becomes clear that the suspcionless Buie search applied by the Ninth Circuit should only cover the room of arrest. There would thus be no justification for the search of any part of the house when a suspect is arrested outside of the house. Hopefully, the Ninth Circuit’s opinion leads the Supreme Court to destroy the Gant fiction/dictum just like it destroyed the Belton fiction in Gant.
February 19, 2010, 8:44 amPersonFromPorlock says:
It seems like a problem with a simple enough solution: automatically suppress any evidence seized as the result of an officer-safety search. Surely the safety of our brave officers is worth losing the odd prosecution.
February 19, 2010, 9:47 amAultimer says:
I disagree on a tactical level. If there’s enough police manpower available to hold the arrestee and conduct a sweep of the interior of his residence, there’s more than enough manpower to arrest a clown-car line of associates pouring through the door. Doors come in handy for that when you’re pointing a gun at them. Of course my view is military, so I was trained to worry about staying alive, not convictions.
February 19, 2010, 9:51 amTim says:
The quick and dirty answer to your question is, yes. In the interest of preserving the 4th Amendment rights of the accused, the officers must, in this instance, remain in a “potential threat” environment and not violate the privacy of someone’s home without a warrant. The plain view exception cannot be used when you must enter the residence for no reason in order to find the evidence in “plain view.” Since the suspect is under arrest, he/she is no threat to you or anyone else, and absent any evidence that someone else is involved, there exists no public policy purpose like evidence destruction to allow for an exception the the constitutional command of the 4th Amendment.
The Constitution, for whatever it means, does not exist to protect police officers. It exists to protect criminal defendants from the prying eyes and evidence collection of government officials, especially police officers.
If there’s one thing that is especially disturbing about 4th Amendment jurisprudence to me, it is that most people have profound incentive to say nothing and not cooperate with the police in any way. Police, possessing “real-world” experience with the relevant doctrines of 4th Amendment case law, have tremendous incentive to exploit any exception. I’ve even had friends of mine (police officers) tell me that, “I’ll find something” to justify a traffic stop, because, “you can’t drive 20 feet without violating the vehicle code.” Instead of creating a system whereby officers have respect for the citizens that they protect and serve, play by a set of rules that constrain their behavior, and gather evidence in a method consistent with the constitution’s commands, things like the “good faith exception” and “plain view doctrine” as well as searches “incident to arrest” and my personal favorite, “inventory searches” have created a situation whereby the Constitution is merely a piece of paper, and the exceptions so broad as to swallow the rule.
It seems that the modern direction of the case law (Kyllo, Gant, etc.) seeks to close these loopholes and constrain government officials to the rule. The problem is that courts have created so many loopholes, and distinguished them in so many different ways (automobile, home, etc.) that it’s going to take quite a while before they can all be closed. In the mean time, meritless arguments like the ones above that suggest officer safety allows the warrantless search of anything within line of sight for 1000 meters or more after a lawful arrest are plausible given the current standards of analysis. If it’s not clear why no police officer has any business searching a hut 600 meters away from my house merely because a person with a sniper rifle could shoot at them from it after I’m already under arrest, it is my hope that future cases will make that clear. Without it, the entire purpose for the 4th Amendment is lost, and I think that’s why Professor Volokh expressed that in the final paragraph of this post.
February 19, 2010, 10:00 amSeaDrive says:
Law enforcement as a group is more concerned with its own privileges that with other people’s rights. This does not distinguish them from any other group.
February 19, 2010, 10:08 amJoel says:
Here, Here Tim. It seems that law enforcement in this country wants their proverbial cake and eat it as well. The police demand reverence for “putting their lives on the line” as “public servants,” and yet insist that any instance in which they feel that they may be in danger, the public must serve their interests.
You are absolutely correct that both the Constitution and the police exist solely to enforce rights given to the people, and the people do not exist to facilitate the investigatory practices of the police. When I read these two cases a few years ago while doing research for a brief, I made a mental note of how rampant law enforcement’s abuse of policy implications of these rulings has the potential to be. If the courts abhor applying subjective standards in most cases, why allow the police to lean on one in ignoring fundamental Constitutional concepts? Nonsensical.
February 19, 2010, 10:14 amProfane says:
“Tim, so the officers (again, with real world experience similar to mine) have to choose between not entering at all, and remaining in a potential threat environment and getting a warrant to preserve admissibility, or entering to secure the area and having evidence that was clearly in plain view declared inadmissible?”
Yep. And if the issue truly is officer safety, so be it.
February 19, 2010, 10:16 amDavid M. Nieporent says:
Then you need to gain a sense of perspective. It’s not the most dangeous profession out there. It’s not in the top ten most dangerous professions. There are very few annual line of duty deaths for law enforcement — and the majority of those are motor vehicle accidents.
For those who don’t believe me, you can find statistics here. As an illustration, on the front page of the site, in the “most recent deaths” column, they list six deaths. As of today, those six deaths include 2 actually shot in the line of duty (one of those was shot 11 years earlier). Two were driving accidents — and by that I don’t mean suspects running over officers, or officers killed while involved in a high speed chase. I mean a patrol car skidded on ice, and an officer accidentally drove into a creek. One accidentally shot himself with his own gun while maintaining it. And one had a heart attack while shoveling snow.
Note that, like the Bush admin changing from WMD to WMD program-related activities (or the Obama admin changing from jobs created to jobs saved or created), Chappy quickly slips from “physical violence” to “threat of” violence. Moreover, we’ve been talking about situations where officers get shot, but Chappy talks about the much vaguer and broader “physical violence,” which can simply mean that an inhabitant of the house grabbed a cop’s arm. In any case, Chappy doesn’t explain how a so-called “protective sweep” of the house would even prevent that from happening.
Knowing copspeak, “intent of interfering with the arrest” doesn’t mean that the resident fired a gun at the cops; it means that the resident came out of the house and yelled at or argued with the cops. And the “one arrest turning into two or three” doesn’t mean that the inhabitants actually did anything wrong; dollars to doughnuts (no pun intended) that the arrests were for “disorderly conduct” or “disobeying an officer” or “interfering with an officer” or whatever his jurisdiction called these things — with the ever-popular “resisting arrest” and/or “assaulting an officer” tacked on afterwards, too.
I don’t know why circumstances “oftentimes” preclude leaving the location following the arrest — unless the officers want an excuse to conduct a search, of course (*) — but in any case, Chappy fails to explain how entering into the house would “negate a potential threat” anyway. In the unlikely event someone is hiding in there with a gun intent on attacking the officers, then entering the house creates a bigger threat; it doesn’t negate it.
(*) To be precise, I’m talking about situations where someone is arrested outside his house. If someone is arrested at a crime scene, then a search may well be appropriate. If someone is arrested after a traffic stop, then the driver’s car may need to be secured. But if someone is arrested outside his front door, what are they doing, having a picnic?
February 19, 2010, 10:35 amSoronel Haetir says:
A few dead officers each year is part of the steep cost of freedom. If it came at any lower price it likely wouldn’t be so cherished.
February 19, 2010, 10:37 amOrin Kerr says:
Soronel,
So we need police to die to make sure the rest of us appreciate or freedom? Can I assume that there are no police officers in your family?
February 19, 2010, 11:37 amRamsey says:
So now are we going to have an SOP of officers entering homes when a suspect is arrested outside? It seems that when the Police are given a constitutional inch they will always take a mile.
February 19, 2010, 12:22 pmhattio says:
Chappy,
You asked Tim whether he thought officers should have to choose between searching the house and losing evidence (if there were not “plain view” rule) and remaining in a “potentially dangerous” environment without searching. Let me ask you a question. If we eliminated the “plain view” exception tomorrow, for any search that was done for officer safety, do you think the “protective sweeps” would go up or down? If officers were truly worried about their own safety primarily, and only incidentally worried about gathering evidence, you’d expect the searches to go up (they no longer have to worry about if they do it wrong they will screw up and wind up getting evidence suppressed) or at the very least remain as common as they are. On the other hand, if they are truly about an excuse to look for evidence, they would go down. Are you really going to tell me you wouldn’t expect them to go down….waaaaay down?
Also, as to officer safety; it’s not that dangerous of a job, as mentioned previously. Moreover, it pays a hell of a lot considering the rather minimal qualifications necessary in most jurisdictions. Frankly, if people consider it too dangerous, goodbye and good riddance.
February 19, 2010, 12:38 pmJeremy Warren says:
I am the lawyer who represented Juan Lemus. I stumbled upon this blog and am really impressed at all the thoughtful comments.
As you can imagine, it was very frustrating when the officers embellished their reports (a year and a half later!) regarding my client “breaking the threshold of the door” at the suppression hearing. Without any independent witnesses and no video of the arrest, the only other witness would have been my client, a convicted felon with a stake in the matter. Is there any judge who would credit that defendant’s testimony over the law enforcement officers?
In any event, I’ll be working on a cert petition. I think it has a real long shot of getting granted, given the makeup of the Court and the trajectory of Buie jurisprudence. However, if anyone is interested in participating in that process, please drop me a line at jw@jwarrenlaw.com
February 19, 2010, 12:56 pmAllan Walstad says:
Kozinski wins the thread!
February 19, 2010, 1:16 pmOren says:
I’m torn. In theory, a quick peek inside to make sure there isn’t an accomplice about to ambush you makes sense and is consistent with my understanding of the 4A. In practice, the police are likely to continue their pattern of using sweeps justified by officer safety to search for evidence in the couch cushions.
Similarly, plain-view is an eminently reasonable doctrine that, due to the same kind of disingenuous application, is used to within the technical definition that supports it but not the causative one.
February 19, 2010, 1:25 pmDavid M. Nieporent says:
Having now read the entire Kozinski dissent, that’s as close as I’ve seen a federal judge get to accusing cops of perjury in quite a while.
February 19, 2010, 1:45 pmgasman says:
Officer safety seems to be a disingenuous argument. Police work is not all that dangerous compared with many other jobs. An the majority of those police deaths are related to motor vehicle crashes. This is not to discount those deaths, but to note that most police related deaths cannot possibly be reduced by illegal searches couched as officer safety measures.
February 19, 2010, 1:51 pmPintler says:
While I agree with the statistics, I’m not sure they paint the whole picture. I have worked construction, for example, and didn’t find it particularly stressful. OTOH, a few years ago our neighbor’s alarm co. called and said her alarm had triggered and no one answered the call back. This was a few days after an apparently (mis) targeted[1] home invasion robbery. I told the alarm co. to roll the police and advise them a neighbor was also responding. Going through the backlit gate into the dark backyard to the door with the triggered sensor was one of the least fun things I have ever done. Police officers do that kind of stuff every day, and I do think that deserves consideration.
Also note that the stats include both officers working patrol in tough neighborhoods, and people doing desk jobs, which skews things a bit.
I’m not suggesting that officers get carte blanche to search every house within rifle range. I don’t know a good solution – maybe forgoing the plain view exception – but I do think the raw fatality numbers only give a partial picture.
[1]The robber kept asking where the nonexistent safe was.
February 19, 2010, 2:20 pmtheobromophile says:
“Officer safety” is not the touchstone of the Fourth Amendment. The Framers rightly understood that a lot of infringements upon privacy can result from totally justified and logical police searches, which is why that right protects the right of the people, not of the police.
February 19, 2010, 2:48 pmAnon says:
My first thought after reading the case was that I hope someone was working on a cert petition. Even if granted, I do not feel entirely positive the decision would be reversed, but Grant gives reason for some optimism.
Like an earlier poster mentioned, I thought for sure the 9th would have enough judges to at least hear this en banc. Oh well.
February 19, 2010, 3:00 pmNick42 says:
Regarding officer safety – I do think officers should have the ability to ensure their personal safety. Given that a large ( I believe it’s a majority ) percentage of officers who die in the line, die in car accidents.
My question to those who use officer safety as a rational for giving up 4th amendment rights is:
If officer safety is so important that you think that citizens should give up some of their essential safety, how can you countenance officers risking their lives to give minor traffic tickets mainly for the sake of revenue? Aren’t are our officer’s lives worth more than a few pieces of silver? And even if you don’t value officer’s lives that highly, aren’t our rights worth more than that?
edit: minor grammar tweak
February 19, 2010, 3:18 pmHan Solo says:
I remember an ADAM-12 episode where they were inside the guys house and arrested him for a warrant on something else and they arrested him in his front/living room, but then one of the officers was being helpful and went to check that his back door was locked and to wave off their backup who was covering the back of the house and he walked through the kitchen where there was a bunch of drugs, a pill making machine etc.
And the guy got off those charges in court because they didn’t have a warrant to search the house and the arrest occured in a completely different part of the house. The judge specifically asked if the drugs where ‘visible’ while they made the arrest and threw the evidence out because they could only have been seen once the officer went walking into the kitchen.
….and this was on TV in 1969 or so.
Have things really changed so much?
February 19, 2010, 3:29 pmRailroad Gin says:
Isn’t the relevant qeustion the number of officers killed/injured each year during arrests made on or near a home? Officers killed in traffic accidents, shot while doing a SWAT team drug raid, etc. aren’t really pertinant.
Kozinski is right that Buie gets abused. The police get called out to a routine domestic violence situation where there is no real reason to believe that an accomplice is hiding in the closet with a gun or similar danger. Under the guise of “officer safety” the house gets searched and the police find drugs. It is actually quite common. Most of my experience is in criminal law on both sides of the courtroom. It seems that the number of times that Buie gets used as a pretext to search the house for drugs far exceeds the number of times that it is used becuase the officer actually fears for his safety and exponentially outweighs the number of officers wounded or killed in such situations. Everyone knows what’s really going on but judges, especially elected state court judges, rubber stamp whatever pretext the police come up with.
Having said that, Lemus doesn’t strike me a a complete sham on the part of the police. The facts were that he was an associate of no-kidding violent criminals and probably one himself, so I can’t blame the officers for being fearful. On the other hand once they made the arrest, why wouldn’t they just stuff Lemus in the patrol car and get out of Dodge? That is the flaw I see in applying Buie to arrests made outside the house? If the house is dangerous wouldn’t you want to get away from the house as soon as possible?
February 19, 2010, 4:07 pmpc says:
If officer safety is the top goal, shouldn’t officers just stay in the police station?
February 19, 2010, 4:24 pmAlexia says:
Neither did an attack from the home involved in this case, though.
February 19, 2010, 4:46 pmJustin says:
From a pure matterof officer safety, though, isn’t it more likely than not that performing a sweep of a residence would provoke a confrontation with a friend or relative of the suspect? If a police officer were, for example, to arrest a suspect on his front porch, it would seem far less likely that a spouse, child, or roommate would provoke a confrontation if the officer and the suspect remained outside the home. If a police officer entered the home and started looking through closets on the off chance that there was a gunman hiding there waiting to ambush the officers outside, it seems far more likely to cause a confrontation than to prevent one. The officers would have to control anyone in the home– presumably, for example, they would have to instruct the spouse, child, or roommate to sit in a chair with one officer standing guard while a second officer performed the search. That would strike me as likely to push a decent fraction of the population into confronting the officer. And if there are individuals in the home that have outstanding warrants or have some drugs in their dresser, the search would seem likely to cause a confrontation where the individual would never have confronted an officer outside the home.
February 19, 2010, 6:23 pmChappy says:
Away from the computer for most of the day, excuse me while I catch up.
Aultimer: Your concept of available manpower at the scene of an arrest seems predicated on the scene being in an urban, densely patrolled area. In rural and exurban areas, two or three officers may be it.
Tim: “The plain view exception cannot be used when you must enter the residence for no reason in order to find the evidence in plain view.” I think this is the crux of our disagreement. I think that both the panel and I have pretty clearly stated a reason. (To be clear, not “reasonable suspicion”, but a reason why the balancing of interests here tilts in the officer’s favor.)
“The Constitution, for whatever it means, does not exist to protect police officers. It exists to protect criminal defendants…” I’ve never been a criminal defendant, and I’m pretty sure its intended to protect me as well. “…most people have profound incentive to say nothing and not cooperate with the police in any way.” Most people, or most criminals? In my experience, most people are more than happy to talk with and cooperate with police officers. Of course, most people are law-abiding citizens; your broad brush statements seem very criminal defendant centric.
“…meritless arguments like the ones above that suggest officer safety allows the warrantless search of anything within line of sight for 1000 meters or more…” Judge Kozinski created the straw-man: “so long as the arrest is within a rifle shot of the home”, and you are riding it, but it in no way reflects the facts of the case or the majority opinion. Talk about “maneuver into a position”.
David M. Nieporent: “Then you need to gain a sense of perspective.” I think my perspective is just fine. Obviously I lived through my badge carrying days, but I was physically attacked more times than I care to think about, and I worked in a small city in a rural county. The job is dangerous, period. And, it differs from other dangerous professions in that those other professions are dangerous when accidents occur. Police work is dangerous because of the people you encounter who intend to cause you harm. There is a big difference.
“we’ve been talking about situations where officers get shot”. Have we? I don’t see where the decision limits the safety considerations to firearms, although that is an example used. The protective sweep is to further the officers situational awareness about the area of the arrest and afford an assessment of threats to his or her safety.
Your translation of “copspeak”, at least in my case, is wrong. I’m referring to times when third parties tried to physically interfere with the completion of an arrest – an assault on an officer, not just mouthing off. (But, yes, I won’t deny that mouthing off has been known to result in the disorderly conduct type charge – personally I thought that was poor policing – still do)
“I don’t know why circumstances “oftentimes” preclude leaving the location following the arrest…” Because oftentimes additional investigation at the scene needs to take place. See my response to Aultimer above – we are not talking about having a surplus of officers at the scene. Most law enforcement activity is not like Law & Order, or COPS, or Adam-12. It happens quick, and it happens with very little back up.
“Chappy fails to explain how entering into the house would “negate a potential threat” anyway.” You’re right. That should have been worded “identify a potential threat.
Soronel Haetir: “A few dead officers each year is part of the steep cost of freedom.” Let’s revisit the Officer Down Memorial page as David suggested above. Here are the LODD numbers for the past five+ years, for deaths that were the result of an assault (shot, stabbed, assaulted with a vehicle, etc.):
2010 to date – 13
2009 – 58
2008 – 56
2007 – 74
2006 – 72
2005 – 70
“A few dead officers…” Words escape me.
Hattio: I think elimination would have little effect, and I’m not being naïve here. Most officer’s over-arching goal for any shift is to get home alive and in one piece. Similar to David above, your statement that “its not that dangerous of a job” certainly does not reflect my experience or the experiences of the officers I’ve known and / or worked with through the years. (The growing consensus here seems to be that you have to die for the job to be dangerous.) My wife was a nurse at our local hospital – she came down the ER hall one night to find me being propped up by other officers – cut, bruised, bloody, uniform shirt ripped off, glasses broken – she’s pretty sure that police work is dangerous, even though I didn’t die. I think she’s right.
“It pays a hell of a lot…” Wow. The most recent data I can find puts the median annual salary at $45,780; starting salaries of $25,000 per year or less are easy to find, higher for urban forces. That’s not a hell of a lot in my book. And, yes, qualifications can be minimal at times (I assume you are thinking high school diploma) but most officers go through rigorous and lengthy training, and most states require continuing training to maintain certification.
Allan Walstad: “Longoria and Diaz hung out in the living room long enough to study Lemus’s couch and dig through its cushions.” And as I said before, this is where I think the panel loses me. As an officer, I would have expected the support for entry, but I don’t think I’d have expected the court to buy plain view under these circumstances. Frankly, I’m not sure the officers should have been able to get a warrant to look under the cushions either, given the vague description of what they thought they saw.
Oren: I’m glad you’re torn. Haven’t been getting any love at all for my point of view here. I’ll take torn…
Gasman: “An the majority of those police deaths are related to motor vehicle crashes.” Gasman, and Nick42 below and others – go review the stats again. The majority in most years are not related to motor vehicle crashes. It gets closer if you add in pursuit deaths, but that involves an offender’s actions. But, I’m sorry now that I mentioned LODD, as it seems to have obscured the fact that assaults on officers that don’t result in death are pretty common.
Nick42: Regarding traffic enforcement. I think many agencies go about it wrong. Traffic enforcement should target high accident areas, and target behaviors that are likely to cause an accident, but those type violations are more difficult to enforce than just running radar or laser. But I hardly think that we can abandon traffic enforcement entirely. There is a public safety component to it; its not all about revenue.
PC: “If officer safety is the top goal, shouldn’t officers just stay in the police station?” The discussion is about balancing interests in constitutional interpretation, based on situations that the police (and defendants) find themselves in. Officer safety is not the “top goal”, neither is it simply a pretext to be casually brushed aside, as many here would do.
Alexia: You’re right, no attack. We’re discussing preemptive entry.
Justin: Good points; I’m not saying that a sweep is always a good idea or mandatory, just that if an officer decides in his or her judgment to do so, that such entry should not automatically be deemed a 4A violation, and that evidence in plain view upon such an entry should not automatically be deemed inadmissable.
February 19, 2010, 7:36 pmjccamp says:
I am consistently surprised by the number of critical – even harsh – posts here, that seemingly confuse the actions of police officers and the case law which allows those actions. Police officers do not create the case law and statutes under which they operate. However, officers can and will take advantage of every single decision which governs expanded search and seizure, just as they are expected to observe every decision which restricts the same.
In the cited case, they went to arrest a convicted felon, with priors for narcotics and violent crimes. Existing law permitted the “protective sweep” and also the plain view discovery of the firearm. I would suggest that seizing the firearm and charging the convicted felon with the appropriate violation serves the general good. If you disagree, then seek to change the law. But do not expect police officers not to use whatever is permitted under existing standards. If officers are not to follow U S Supreme Court case law, then whose judgement should they substitute?
But such as “Police officers had been abusing the 4th Amendment with respect to automobiles for nearly 30 years…” is simply an untrue statement. Officers followed existing law for those 30 years. Then the Supremes changed the rules by a 5-4 vote. Officers now are expected to follow the new rules.
Maybe that will happen to Buie searches too. But until then, does anyone really expect the individual officer to substitute some ambiguous and personal sense of “it’s not right under the 4A” for what is permissible under existing case law? What lawyer here would do that to the detriment of a client? I suggest none.
February 19, 2010, 7:37 pmChris Travers says:
Well, a near majority are motor vehicle accidents. When you add heart attacks to that, you get a majority.
However, nobody has a perspective on dying. Which do we fear more? Getting on a plane? Or getting into a car? Which is more likely to get us killed?
February 19, 2010, 7:52 pmChris Travers says:
Chappy:
It seems the best solution may well be to allow officer-protection sweeps, but eliminate the plain view exception in relation to them (i.e. no evidence found during an officer-safety sweep could be admissible). Would you agree that this best strikes a balance between officer safety and civil liberties?
February 19, 2010, 8:03 pmpublic_defender says:
Officer safety issues are real. Wouldn’t it be nice if officers didn’t lie about their safety in order to conduct illegal searches? Shouldn’t truthful officers blame their perjuring colleagues for the cloud of doubt that hangs over claims of “officer safety”?
February 19, 2010, 8:21 pmTed says:
The solution to this is too obvious. Just eliminate the “plain view” exception when the premise for the “search” is safety. This effectively separates the two competing interests, officer safety and privacy. For example, as in Lemus, the police should be allowed — expected! — to secure the area surrounding the arrest. However, if the officer finding the gun cannot articulate a standard exception to the 4A beyond a mere concern for safety (suspected of a particular crime that warrants the search) then that evidence is inadmissible. This would encourage cops to only sweep when they feel actually threatened and would offer no encouragement to look under cushions.
This rule could further be tweaked to be more or less comprehensive. Such as allowing any evidence found in plain view that is evidence of the crime that the suspect was arrested for. So, if he was suspected of committing a robbery with a gun when he was arrested outside his home, the gun would be admissible if found during a protective sweep. But the pound ‘o weed sitting on his coffee table would not, unless the officers provided specific articulable facts that created probable cause of there being drugs in the home prior to the sweep.
To me, the spirit of the 4A protects people from unjustified searches and seizures. Thus, even if you have contraband in your home, the police should not be looking for it unless they can articulate a reason why beforehand. This, “whoa! What have we here?” is BS and, as other commenters have noted, creates incentives for the police to act unconstitutionally and then lie — or exaggerate — about it. If they suspect you of committing a crime, and can articulate the reasons why, then you deserve to get searched for evidence of that crime. If not, then not.
I know it drives the “law and order” types mad to watch a perp skate on a drug charge, particularly when they’re disorderly conduct charge doesn’t stick either, but hey, that’s the high price of living in freedom. At least IMHO.
February 19, 2010, 8:28 pmJustin says:
Shouldn’t there at least be a standard of at least reasonable suspicion of an attack before a sweep is allowed without a 4A violation? If an officer can articulate a reasonable basis for believing that his or her safety would be served by performing a sweep rather than provoking a confrontation, the search incident to arrest would be far less troubling. I can imagine a case where an officer would reasonably expect that entering and sweeping the house would either prevent or mitigate a physical confrontation, but those seem like exceptions. If officers saw two violent felons enter a home, arrested one of the felons just outside the home and were unable to account for the whereabouts of the other felon, I could see the officers having a reasonable suspicion that an attack was imminent. That would seem to justify a sweep. Barring additional context, though, it seems far more likely that someone in a closet was hiding from police, and thus avoiding confrontation, rather than hiding in order to ambush an officer. And in most cases, an angry spouse would present a greater danger to the officer if the officer entered the home where weapons might be available and began to search that home which would tend to provoke the spouse. I’m all for taking reasonable steps to officer safety, but this decision seems far more crafted to serve the interests of officer convenience and prosecutorial win percentages than to serve officer safety.
February 19, 2010, 8:45 pmChappy says:
Chris, I don’t see that as an acceptable solution. I can’t reconcile in my mind a court holding that the entry was legal and then excluding evidence that was in plain view.
February 19, 2010, 8:45 pmColin says:
My opinion given the circumstances:
In United States v. Lemus, the officier lied about seeing the butt of the pistol under the cushion in order to cover his ass. It’s not hard to hide a pistol completely under a sofa cushion given the size of the cushions and the tendency for the sofa frame to form a pit shape under the cushion, which would keep the gun near the center and completely concealed. The office had a strong incentive to lie since that minor point allowed the “plain view” justification to include that evidence, and under normal circumstances, there would be no way to contest the officer’s story after the gun had been moved or collected. The officer does not get the benefit of my doubt.
February 19, 2010, 8:50 pmChappy says:
public_defender, the take-away I have from the discussion thus far is that many of the commentators believe that officer perjury is the norm, not the exception. I simply don’t believe that. In my opinion, most officers, like most defense attorneys, are honest, honorable, committed professionals trying to do a difficult job the best way they know how. I think the cloud is not so great as you think. Officer perjury does happen, but in my experience most officers have little respect or use for officers who lie on the stand. Most of us were pretty aware that our credibility, once damaged, stayed damaged, to our and our professions detriment.
February 19, 2010, 9:01 pmjccamp says:
Colin –
There was no testimony from Lemus that the firearm was hidden, and thus, no reason to suspect perjury on the part of the officer. Had Lemus contested this part of the factual situation, you might have a point. I didn’t see any associated allegation that the officers searched or ransacked places which would not reasonably hold a human. Whether the firearm was in plain view does not seem to be an issue, except for the dissent which invents issues not in dispute. The correct issue is the entry, not the plain view seizure I think.
Justin -
There actually is a “reasonable or articulable suspicion” basis in Buie, but it apparently does not apply in areas immediately adjacent to the location of arrest if I understand the case correctly. Although neither the decision nor the dissent (in Lemus) directly touches on the issue (whether some basis existed), and in fact, the decision specifically says there in no need to consider whether there was some basis, there does appear to be an (admittedly thin) reasonable suspicion, based on the geography – several apartments and a house in one compound – all occupied by family of the arrestee, several of whom had violent arrest histories. The actual presence of a firearm, mere feet from where the arrest took place, demonstrates the potential for danger had another family member intent on aiding the arrestee been in the living room.
Public_defender -
“Shouldn’t truthful officers blame their perjuring colleagues for the cloud of doubt that hangs over claims of “officer safety”?
“
Yes.
February 19, 2010, 9:05 pmJohn Herbison says:
How much is it worth to have access to young women who will put out for just about any cop who will do them? Don’t trivialize the value of free poon.
February 19, 2010, 10:41 pmRicardo says:
On police perjury, for what it’s worth, I’ve found the perspective of criminology professor Peter Moskos helpful. He served with the Baltimore police department for about two years while he was a graduate student and is a left-of-center, civil libertarian kind of guy. So he really doesn’t have an incentive to sugarcoat the honesty of the police. He insists that at least in Baltimore, no cop he knew would ever risk his badge and his freedom to lie about some stupid kid or thug he was arresting. The cops don’t even live in the same neighborhoods they police: they have every incentive to do an honest day’s work and go home afterward without living in fear of being investigated. It’s just not worth the risk. Would you risk going to jail in the course of your own job?
February 19, 2010, 11:57 pmDavid Nieporent says:
I think few officers will lie to convict an innocent person. I think testilying to convict a guilty person is commonplace (and by “guilty person,” I mean “someone the officer thinks is guilty. Of something.)
You know, like when a known felon like Lemus has a gun.
February 20, 2010, 12:25 amSoronel Haetir says:
Yet at the same time we have cases like this where at least one judge strongly believes the cops are in fact lying. Hell they might not even realize it, that’s what scares me is that memory is so fragile that after the fact it would be easy to forget that any lines were even crossed.
It’s also the case that so long as a cop only shades what they say if there is no record of it no one is going to be able to call them on it. It doesn’t even take a malicious officer, only merely human ones. And the system we have is not well situated for dealing with that, honest officers who are simply wrong. though it is getting better, slowly, with things like recording interviews rather than relying on notes taken afterward.
February 20, 2010, 12:34 amDavid Nieporent says:
What “risk”? Do you know how hard it is to convict an officer of perjury, even if the prosecutor wants to, which most don’t? Unless the officer is stupid enough to perjure himself in such a way as to be caught on tape, and the perjury is so egregious that the prosecutor can’t ignore it, there’s no risk at all.
February 20, 2010, 12:54 amhattio says:
Chappy says;
Great. Come talk to me when the “honest” officers not only lose respect or use for officers who lie on the stand, but turn them in for perjury. Until you’re ready to do that, you’re not an “honest” officer. Honest officers don’t ignore perjury by their brethren.
February 20, 2010, 3:17 amRicardo says:
You don’t need to be convicted, just being prosecuted is significant punishment already. Do you really think that liberal Democrat prosecutors in places like San Francisco, Manhattan or Philadelphia would not leap at the opportunity to nail some rookie cop’s a** to the wall if given even the smallest opening? The opportunities for career advancement from such a case are enormous.
I’ve found most of the famous police shooting cases that have been prosecuted to be highly flimsy but that hardly stops prosecutors who are under intense political pressure from continuing to take on these kinds of cases. So I don’t think your description of prosecutors’ motives or willingness to take on perjury cases is very accurate unless the rules of evidence in perjury cases are abnormally stringent compared to other crimes.
February 20, 2010, 8:33 amjccamp says:
On the discussion of cops suspected of persistent perjury, whether in court or on written affidavits – as in supporting affidavits for warrants, say – it is not uncommon for prosecutors to notify a police department that a specific officer suspected of same will no longer be considered a trustworthy witness. Since prosecutors cannot present a witness without some belief in the inherent truth of the presented testimony – unlike defense counsel – that officer can no longer make arrests or testify (for the government) as to his/her own actions. In effect, the department has to consider that officer as one giant civil liability, and the only personnel action remaining is to bench the officer from any further conduct requiring contact with the public or enforcement of law. In effect, the cop becomes an armed secretary or similar.
So there is a remedy, and a common one in my experience. It just doesn’t get publicized much for obvious reasons. Prosecutors are reluctant to engage in a war with the cops, and vice versa, and the department does not want the bad cop’s continued presence on the payroll broadcast. But it’s in everyone’s interest to keep the suspected liar out of the witness box. The prosecutor may have taken the step at the unofficial request of the department, because the department was unable to find a way within work and civil service rules to otherwise limit the suspect officer’s opportunity for mischief.
And before piling on me as though I invented this particular work-around, I am posting this for those who may not have known this occurred. I’m not asserting the morality or lack of same of the practice.
February 20, 2010, 9:01 amDavid Chesler says:
In 1982 I witnessed an incident in Harvard Square in which some guy was arrested for telling cops to do their job. (Some kids had been harassing some old guy at a bar; when the cops came everyone split except this guy, who exhorted the cops to find the people who hadn’t gone far.)
I was there at the criminal trial where the cops testified that the guy had told him “arrest me if you’re man enough.”
I gave depositions for his civil case – somehow his thumb got broken. The case settled.
The named defendant, Lt. Lou Cherubino, remained with the Cambridge PD for many years after. I saw his name in the papers regularly.
I’ve also been a non-disinterested party in alleged traffic violations. I’m certain that I was not travelling 85mph on an upgrade at 11pm with my septuagenarian mother in the front seat in a van that could barely make 75mph on level pavement, but that’s what the cop asserted.
February 20, 2010, 9:57 ampc says:
100% of my experience with LEOs in court involved LEO perjury. I was only in court once, so it’s an anecdote, but if the state trooper in that case found it so easy to lie to the court over a traffic violation, why should I assume other LEOs would be different?
February 20, 2010, 10:44 amPintler says:
(I picked one of several comments which suggested that entering the house must increase the danger, a position also implied in the original decision)
One of the general principals of conflict is that it may not always be wise to wait for your opponent to formulate and execute his plan on his timetable. There are times when preparing your defense and awaiting an attack is the best tactic, and times when it is best to preempt and disrupt the opponent’s plan. One has to make the decision with imperfect information. I don’t think a categorical statement that entering the house always increases the risk can be supported.
Also, I’m no expert, but my impression is that ‘stuff him in the car and vamoose’ would be unusual; the arrest process, including a detailed search of the person, seems to take a surprisingly long time. Perhaps new procedures could be developed – an escort officer to ride along in back with the prisoner or something – but my impression is that current practice is to first of all secure the scene. Snatch-n-grab would be a novel thing to do.
February 20, 2010, 10:58 amChris Travers says:
Then it seems we have to restrict entry, right?
February 20, 2010, 4:57 pmJohn Herbison says:
IMHO, the concern for officer safety–while wholly deserved–has become the tail that wags the Fourth Amendment dog. A warrantless search is presumptively unreasonable. To recognize that a police officer may have legitimate concern for his safety, such as would mitigate the failure to seek a warrant, does not logically suggest that evidence gathered from the officer’s being in a place that he would otherwise have no right to be should be admissible.
Any threat to officer safety will have been abated by the time the matter comes before the trial court. The officer is no safer if such evidence is admitted than he would be if it is not admitted.
Cops and judges are all too willing to follow the sporting theory of justice.
February 20, 2010, 5:30 pmOrenWithAnE says:
Well Chappy, you know full well that any search that can be technically justified as being for officer safety will be conducted for evidentiary purposes. So yeah, “torn” just about exactly covers it. We attempt to delineate the bounds of the searches with technical rules when what we really intend is to govern the rationale behind the search and of course we are upset by the results.
Of course, technical rules are the only tool the law has to work with here, so we are bound to be disappointed.
February 21, 2010, 5:09 amKen Arromdee says:
But do not expect police officers not to use whatever is permitted under existing standards. If officers are not to follow U S Supreme Court case law, then whose judgement should they substitute?
There’s a difference between “what the standards permit” and “what there’s no way to catch”. The problem isn’t the police actually searching places where there could be danger; the problem is police claiming to do so but using it as a pretext to search just because they want to. They get away with it because it’s not possible to read minds and know that they’re lying about the reason for the search, not because they’re actually following existing law.
February 21, 2010, 12:52 pmjccamp says:
Ken -
If you can, point out where the officers lied in the cited case. The suspect was arrested in the doorway to a room. The officers checked that same room, within feet of where the suspect had been standing, and found a firearm in plain view. From the decision, it does not appear that the plaintiff disputes any of the facts, only the basis for the entry into a domicile when the arrest was not clearly made within. If the officers can legally enter, without having to articulate any suspicion or basis, then they don’t need to lie about it. So there is no attempt by the officers to justify the entry other than the location of the arrest. Even had the arrest occurred just outside the doorway rather than in the doorway, the decision’s language seems to suggest that it would have been rendered in the same way.
You don’t like the decision, that’s clear. But claiming police dishonesty is why the decision was made is simply…well, dishonest.
February 21, 2010, 1:07 pmDavid Nieporent says:
That would be the first one. As Kozinski pointed out, that “fact” did not appear in a single report about the incident; it was first discovered at the suppression hearing.
Even then, the most they could say was that he was arrested outside his house, at the door.
Well, no. They found something that looked vaguely like the butt of a firearm, but which they weren’t sure was a firearm until they moved a cushion to confirm.
And, of course, they lied about being concerned about their safety. Of course, under this ridiculous opinion it may not matter, but they didn’t know that; if they had testified, “We weren’t worried, but we walked in to try to find evidence against him,” — the actual truth — there’s a decent chance it would have come out differently.
Sure, but they didn’t know that at the time, which is why they were so carefully coached to claim he had been arrested at the threshold.
February 21, 2010, 1:34 pmMilhouse says:
I don’t know why people are debating this with an admitted policeman. Everyone knows it is unsafe to assume anything a policeman says is true, even if he is under oath, without corroborating evidence. So why would anyone trust what a policeman says when he’s not under oath? Policemen as a class are notorious for lying. And yes, I do believe in profiling.
February 21, 2010, 2:55 pmOrenWithAnE says:
Ken, the 4A is almost always an objective test. If the officer is allowed to do X then he is allowed to do X irrespective of his mental state at the time. The granddaddy of all these cases is Whren in which the officer testified point-blank that he intended to investigate drug activity and pulled the suspect over for a traffic infraction.
February 21, 2010, 4:57 pmDavid Nieporent says:
Yes, but read the last six words you highlighted. This isn’t probable cause analysis. Whren says that if you’ve got probable cause, it doesn’t matter what you were really thinking. But I don’t think you can necessarily extrapolate from that to a situation where you don’t have cause.
February 21, 2010, 5:14 pmjccamp says:
David -
Smarmy comments about “his lips are moving” aside, the officers didn’t need to establish anything other than the arrest took place in or at the doorway to the room where the firearm was located. Your comments, and those of the dissent, aside – the defendant does not appear to have contested the plain view nature of the seizure. Whether you or Judge Kozinski like it, the facts support such a seizure. The officer spotted what appeared to be a firearm. That’s sufficient on its face. The officer does not need 100% certainty to proceed with investigating once he spots something amiss.
As to the actual location of arrest, there was no anticipation that the (arrest) location to within several inches would become an issue at the time of the arrest. I have written literally thousands of arrest reports. It would be unusual for such to include anything more than some generality (examples: “on his porch”, “by the front door” “in the doorway” or even “at his home”). Judge Kozinski claimed the officers were coached. I suspect the prosecutor would have said that they were prepared. Quoting from the decision “Although the exact location of Lemus’s arrest was disputed in the district court, the district court found that he was apprehended shortly after he had “stepped into the apartment breaking the threshold of the sliding glass door.” This finding was not clearly in error. Even taking Lemus’s account of the events as authoritative, it is clear that at most Lemus was only partially outside the living room when he was arrested.” So reading from the actual transcript, unavailable to us, the judges felt that even Lemus’ testimony put him inside or partially inside the living room. Absent a single word of testimony from anyone that Lemus wasn’t in the doorway, how have you decided that the arrest location was indeed fabricated? Apparently you have some insight unavalaible to the majority (and the trial judge) in this decision.
As the Person Who Used To Be Oren pointed out, there is no such thing as “pre-textual” in this context. If the officers are allowed to look without having to make any justification whatsoever, then whatever they were ruminating about is simply immaterial. Of course they were hoping to find additional evidence. That’s what they do. But they had no obligation to articulate any basis whatsoever for the close-in sweep. So your presumption that they falsified the need for a sweep is both wildly speculative and meaningless in the context of this specific case.
There’s a genuine and serious issue to consider with the precedent set here. But it’s not – and never will be – “the stinking cops lied.” That’s not logic. It’s invective.
February 21, 2010, 6:21 pmDennis N says:
I was once teasing a cop while we were walking down the street together, bitching about crazy motorists.
Me: “The most dangerous thing you can do is to drive to the gunfight.”
Cop, with a startled look on his face: “Geeze! You’re right.”
February 21, 2010, 6:32 pmDennis N says:
This is a very strong tactical argument. Keeping up the pressure on your opponent, and getting inside his decision loop is a lifesaving tactic. Unfortunately it opens the door (literally) to abuse of process and excessive searches.
Then they don’t have sufficient forces on scene to conduct a house search safely. To do so, they must first secure the suspect. Once they have done that, there is no further justification to search the neighborhood. This is just an excuse for police abuse of the citizenry.
February 21, 2010, 6:56 pmelectronic display says:
If we eliminated the “plain view” exception tomorrow, for any search that was done for officer safety, do you think the “protective sweeps” would go up or down?
June 14, 2010, 2:06 am