Supreme Court Reverses Ninth Circuit in Out-of-Bed-Naked Search Warrant Case:
A recent post at SCOTUSblog by Keven Russell discussed ways of getting the Supreme Court interested in your appellate decision if you don't have a circuit split to trumpet. Although it's a very useful post, it didn't mention the easiest approach: make sure you lost in the Ninth Circuit with Judge Reinhardt or Pregerson (or, if you're really lucky, both) in the majority. To wit, today's summary reversal of the Ninth Circuit in Los Angeles County v. Retelle, overturning an unpublished 2-1 memorandum decision of the Ninth Circuit with Pregerson and Thomas in the majority and Senior Judge Robert Cowen of the Third Circuit in dissent.
Retelle is a pretty interesting case. The government obtained a warrant to search two houses for evidence of fraud and identity theft; the suspects in the case were all black. One of the suspects was known to have a gun. The police executed the warrant at the first house at 7:15 am one morning. they knocked and announced, and a a 17-year old caucasian male opened the door. The cops entered the house and went to the bedroom where they expected to find the suspects named in the warrant. Instead, they found a caucasian couple in bed:
Meanwhile, Retttele and Sadler sued the police under 42 U.S.C. 1983. They did not contest that the warrant was valid. Rather, they argued that their rights were violated when the police had ordered them out of bed naked early in the morning while executing the warrant. The Ninth Circuit agreed, holding that a jury could find that the police had violated the Fourth Amendment in doing so, and that qualified immunity didn't protect them. Here's the Ninth Circuit's analysis:
The Supreme Court reversed the divided panel in Retelle in a per curiam opinion. According to the Court, it was reasonable for the police to order the couple out of bed and to detain them briefly under the circumstances:
Retelle is a pretty interesting case. The government obtained a warrant to search two houses for evidence of fraud and identity theft; the suspects in the case were all black. One of the suspects was known to have a gun. The police executed the warrant at the first house at 7:15 am one morning. they knocked and announced, and a a 17-year old caucasian male opened the door. The cops entered the house and went to the bedroom where they expected to find the suspects named in the warrant. Instead, they found a caucasian couple in bed:
The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room.It turned out that Retelle and Sadler had just recently bought the house, and that the suspects were no longer living there. The police quickly realized this. "They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted."
Meanwhile, Retttele and Sadler sued the police under 42 U.S.C. 1983. They did not contest that the warrant was valid. Rather, they argued that their rights were violated when the police had ordered them out of bed naked early in the morning while executing the warrant. The Ninth Circuit agreed, holding that a jury could find that the police had violated the Fourth Amendment in doing so, and that qualified immunity didn't protect them. Here's the Ninth Circuit's analysis:
[B]ecause (1) no African-Americans lived in Plaintiffs' home; (2) Plaintiffs, a Caucasian couple, purchased the residence several months before the search and the deputies did not conduct an ownership inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search; and (4) Plaintiffs were ordered out of bed naked and held at gunpoint while the deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and detention were "unnecessarily painful, degrading, or prolonged," and involved "an undue invasion of privacy," Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994). . . .Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.1994), the case relied on heavily by the Ninth Circuit in Retelle, had involved a search of a home for drugs. The police broke down the door and found that the home was owned by a bedridden man with advanced-stage multiple sclerosis. The man was unable to get out of bed himself or control his bowel movements, but the police had dragged him out of bed anyway, handcuffed him, and left him in another room for two hours with only a t-shirt on while they searched the house in its entirety. In Foxworth, the Ninth Circuit had condluded that treating the disabled man in such a callous and degrading way had violated his Fourth Amendment rights.
Based on Plaintiffs' version of the facts, we find that a reasonable officer would have known that such a search and detention was unlawful under the circumstances. After taking one look at Plaintiffs, the deputies should have realized that Plaintiffs were not the subjects of the search warrant and did not pose a threat to the deputies' safety. To order Plaintiffs out of bed at gunpoint, early in the morning and before Plaintiffs had dressed, was "unnecessarily painful" and "degrading," and clearly an undue invasion of Plaintiffs' privacy. Franklin, 31 F.3d at 876.
The Supreme Court reversed the divided panel in Retelle in a per curiam opinion. According to the Court, it was reasonable for the police to order the couple out of bed and to detain them briefly under the circumstances:
When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search. . . . .The per curiam opinion was joined by seven Justices. Justice Stevens wrote a short concurring opinion, joined by Justice Ginsburg, which would have reached the same result on qualified immunity grounds without reaching the merits of the Fourth Amendment issue.
In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. The test of reasonableness under the Fourth Amendment is an objective one. Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time.
The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. . . . .
The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.
it's a quick website search in my area, and i do them for every warrant.
doesn't change the fact that the officers acted reasonably.
that's a far cry from doing all the due diligence they could have done
Note that the plaintiffs in the case did not challenge the validity of the warrant. It's not obvious to me why they didn't do that, but the issue wasn't raised by them.
This sentence jumps out at me. Doesn't that issue deserve some thought?
Why, exactly, should Rettele and Sadler bear the cost, as opposed to the local government? Let's assume that the poice acted reasonably and in good faith. Presumably we allow this sort of search because the benefits to the community, in crime prevention and detection, are worth the occasional problems like this one. Since the benefit accrues to the community, why shouldn't the cost be borne by the community?
I'm not suggesting that Rettele and Sadler be awarded millions in punitive damages or the like, just that it seems strange that they are not entitled to be compensated for the cost they bore for the benefit of the community.
They couldn't have ordered the couple to show their hands by lifting them over they heads while prone and covered by the bed? Let's get real.
I anticipate someone will reply: "Just because the officers could have acted differently doesn't mean they constitutionally were required to." It should be per se unreasonable to order a couple naked from their bed when officer-safety concerns could have been met by simply requiring them to show simply, their hands. Last I checked, the other "parts" do not pose a threat to officer safety.
Oh, but it's possible the naked couple were sleeping with gun belts on their bare flesh. Like Billy the Kid did in "Young Guns." My apologies for missing the obvious danger naked people pose to officer safety.
Rettele and Sadler deserve more than an apology.
How are the officers to know they are naked without ordering them out of bed? Obviously all of us would be pretty upset if something like this happened to us, but not every mistake made by every officer should have a federal case made out of it.
how do you know they were naked? UNTIL they got out of bed?
oops, im apparently channeling kazinski.
i have already explained this :)
the way warrants work, especially drug warrants etc. is that (generally speaking) everybody in the residence is DETAINED. until the officers got those people out of bed, they could not detain them. you detain EVERYBODY - THEN sort it out
that has been held to be reasonable for a very long time
i mentioned this in some other post - not too long ago, when discussing detentions WITHOUT probable cause that are deemed "reasonable". people present in a house when a warrant like this is served are gonna be (at least briefly) detained until the scene is secure.
I think the vast majority of people would much prefer standing around naked for an hour, than spend even 5 minutes cowering in bed with an officer hovering over them, gun drawn ready to blast them into oblivion at the slightest movement. The officers chose the course that provided both them and the couple with the highest margin of safety, give them credit for that.
The Court's notion of what is reasonable remains elastic when it comes to police conduct. Regardless of whether the warrant was valid or not, surely reasonable people would have been put on notice that something was badly amiss when a white 17-year-old answered the door and when they saw a white couple in bed. Surely reasonable people would make further inquiry in these circumstances before plunging ahead to make the couple get out of bed and stand naked at gunpoint.
It's a value judgment: here the Court per curiam majority has said that security of the person within the home is worth less than causing police even the slightest inconvenience as they go about serving a warrant to search for evidence of fraud and identity theft.
The police are entitled to do virtually whatever they want to secure their own safety, even if less drastic alternative means of doing so are readily available. The remotest possibility of a bruise to the pinky finger of a police officer is enough to justify deadly fire against deranged old ladies and trouble-making kids. Making an innocent man and woman stand naked at gunpoint over their protests in the bedroom of their own home fits right in.
Justice Ginsburg joined Justice Breyer's concurring opinion in Brosseau v. Haugen (2004) advocating reconsideration of Saucier's two-step inquiry.
So, yes, she has previously indicated reservations about the burdens Saucier places on lower courts.
that's ridiculous.
the warrant was for black suspects, and white people answered the door...
so, obviously, black people never have white house guests (rolls eyes).
amazing.
Uh, another point -
"After taking one look at Plaintiffs, the deputies should have realized that Plaintiffs were not the subjects of the search warrant"
But that would have been racial profiling!
in a fair percentage (probably a majority) of residential search warrants i have been on, there are people OTHER than the warrant subjects present when the warrant is being served
that is ESPECIALLY true in druggie warrants. dopers tend to be sociable, not to mention conducting business (sales and use) in their home
the idea that because the cops ran into some white people, and the subjects of the warrant were black, and they therefore shoudl have just... what? stopped, walked back out the door and said "never mind?"
the safest way (generally speaking) to execute these types of warrants is to enter, detain everybody, then sort things out. the idea that the cops should have engaged the people in the bed at gunpoint in some sort of mexican standoff (as long as you don't move, i don't shoot you) is ridiculous
OMG they were naked inside their own house?
i should be a good leftist and ask what people's hangups are about nudity.
:)
The Supreme Court however, consistently views officer or administrative convenience as not requiring officers to take the extra step, even when dealing with people not convicted of any crime. See e.g. Bell v. Wolfish . The trend is unlikely to reverse itself unless appointing civil liberatarian minded justices becomes a priority for a President, something unlikely to happen. Because judicial candidates views are scrutinized now more than ever, unpopular causes like rights of criminal defendants, closely linked with cases like these, are unlikely to be significantly represented on future Supreme Courts. (See Justice Scalia's "A Matter of Interpetation", who makes the last point in part).
so, obviously, black people never have white house guests (rolls eyes).
Not as many as I'd like, and the same with white people having black house guests. But you can roll your eyes as long as you want while you distort the question that should be asked, which is:
How many black people have a white kid answer the door for them and have a white couple sleeping in the bedroom?
Your distortion of the facts is why I don't trust the police--even those who are among the most intelligent, as you have appeared to be in past comments--in making judgments that so profoundly affect security in the home.
detaining everybody present is SOP, generally the safest course of action, and has been viewed as REASONABLE for a very long time - of course the 9th would disagree. but it would be a news item if the 9th WASN'T overturned.
" The officers could have conducted the search while making the occupants show their hands the whole time. In the alternative, they could have made them both show their hands long enough to call in a female officer, who could have ordered Sadler out of bed at that point, while both Retelle's and Sadler's hands were still in full view, and had Sadler immediately dress. She could have then been relieved by a male officer, and the same procedure repeated with Retelle"
yes, and they could have ordered out for a pizza before ordering these people out of bed.
maybe there should be a requirement that before conducting a warrant, there be at least two female and two male officers so that nobody is embaraseed by being naked in front of the police.
this decision would not be changed by "civil libertarian justices".
it would be changed by electing justices who were prone to ignore both precedent, and our constitution.
It is too bad that you have this sort of callous attitude towards the sanctity of other peoples' homes. The fact that you can do a "quick website search" before invading unnecessarily invading the sanctity of someone's home does change whether or not your actions are reasonable. You should not invade the sanctity of an innocent person's home when it is so easy to prevent! But I don't expect a reasonable view on this matter from a police officer. There apparently is this groupthink mentality where you protect your own, even when they are engaged in unreasonable behavior.
maybe the police should have read all the peer reviewed studies that answer that question.
assume for the sake of (your absurd) argument, that it's a rare occurrence. so WHAT?
the cops followed intelligent and safe (and REASONABLE) procedure.
the 2nd guessers seem to think the cops should have made (a race based i might add) decision that the suspects weren't there because there were people of another race present.
so, you are saying the police should have RACIALLY PROFILED by assuming that they could not possibly be at the right house, since white people answered the door and were sleeping in bed?
sounds like argument for the sake of argument.
face it. the cops got it right. the 9th got it wrong. the scotus got it right.
the only thing i think they did wrong was not doing due diligence to check the house sale thing BEFORE the warrant. THAT was clearly an error. it is very easy to do, and should be done before all warrants. i would suggest it be written into their policy in the future.
detaining the nekkid bed people was not
Excellent point. I think they should be awarded a couple months of these police officers salaries. That would teach these police officers to do a "quick website search" before humiliating completely innocent individuals and invading the sanctity of their homes.
Of course, I wouldn't expect Supreme Court Justices to be concerned by something like this. The probability of something like this happening to them is nil.
Or maybe they should have done a quick website search. Or is that as burdensome as expecting them to read peer reviewed studies? I mean, we wouldn't actually want to inconvenience police officers before they invade the homes of innocent people, would we? Clearly, a quick website search is just too much to ask!
as for your silly tangent. i do not defend the police WHEN THEY ARE WRONG (as they often are). in this case, they were not wrong - and that's also based on case law, precedent, and our constitution.
i could accuse you of the same groupthink mentality - that the cops are always wrong, and of also using 20.20 hindsight. but i won't, because i am more mature than you in that matter. :l
"It is too bad that you have this sort of callous attitude towards the sanctity of other peoples' homes. The fact that you can do a "quick website search" before invading unnecessarily invading the sanctity of someone's home does change whether or not your actions are reasonable. You should not invade the sanctity of an innocent person's home when it is so easy to prevent! But I don't expect a reasonable view on this matter from a police officer. There apparently is this groupthink mentality where you protect your own, even when they are engaged in unreasonable behavior."
i totally disagree. why don't you read what i wrote?
they SHOULD have done a website search.
they did not.
the issue is - did the fact that they did NOT do a website search immediately before executing the warrant - invalidate the warrant? no.
should their policy require them to do so? yes.
cops are not required to have perfect policy.
warrants are issued based on probable cause. was there probable cause? apparently, so. that's the issue. did the cops do everything perfectly and do all the due diligence they could have? clearly NOT.
fwiw, they went and got a warrant. did the JUDGE question if a website search was done before execution?
nope.
is it his fault, as the REVIEWER and 'decider' to mention that, not sign the warrant?
nope
cause it's not a requirement of probable cause.
we have this system where a judge (when a warrant is sought) dtermines if there was probable cause.
Most reasonable people would recognize that the primary focus in these cases must be on officer safety and this interest far outweighs some minor embarassment endured by the innocent couple.
It is unreasonable to not do a quick website search that could prevent an unnecessary invasion of a completely innocent person's home. This whole incident could have been completely avoided had the police officers in question exercised even minimal due diligence.
The fact is, given that you would think that requiring a police officer to type in a quick website search before executing an invasive search warrent is unduly burdensome indicates that you put much less value on the sanctity of someone's home than I do. I am not sure what you think the problem is. Are police officers not intelligent enough to be expected to do web searches before invading homes? Are the risks of carpal tunnel syndrom to high? Or is it that a police office just can't be expected to lift a finger to avoid a situation like this, because the home is not sacred?
I do not expect perfect behavior from police officers or anyone else. But requiring they take minimal precautions before invading a home is not exactly holding them to an even very high standard. Indeed, given the low amount of effort and brain power required (much less effort than reading peer reviewed studies, for example) it is patently unreasonable for them not do a search!
These police officers should do more than apologize. They should give up a couple of months salary to this couple. Maybe when it is their own pocket book that suffers, they will suddenly find protecting citizen privacy worth doing via a quick web search.
If it was a matter of flawed training and flawed policies, then I think the police department should pay. If it was a matter of the police officers in questions not following the policies that were there, I think they should pay.
But someone should pay. It is unreasonable to invade a home when it can be prevented by typing a few keys out with a keyboard. I wouldn't personally blame police officers who were not adequately trained to do such quick website searches. I don't expect perfection. But I would blame their department.
As far as you trying to shift the blame to the judge or magistrate who issued the warrant, that just doesn't work. Police officers themselves swear to uphold the Constitution. They have an independent responsibility. Their obligation to the Constitution doesn't just disappear because an irresponsible magistrate gives them the go ahead. When police officers take an oath to uphold the Constitution, I expect them to take that obligation seriously. If that means they do a "quick website search" then so be it.
in your opinion. case law disagrees.
and again - 1) there is no guarantee the website search would have shown the results of the sale. in many locales, it takes a while for the forms to end up on the assessor's website. (several days to longer)
it is BETTER to do a search before executing a warrant. that, we can agree on. it is not necessary.
however, if it was written into policy, and it was not done, THEN there would be civil redress.
the internet is a good thing. it's yet another tool to get intel and help protect the innocent and convict the guilty.
the policy should incorporate this type of thing. it makes for better warrants.
i would highly doubt any court will rule that this sort of thing would invalidate the reasonableness of a warrant. the scotus was right.
the 4th does not require perfect action, perfect knowledge, or optimal policy. it NEVER has and it never will.
clearly the judge didn't think it REQUIRED for probable cause since he signed the warrant, and the affidavit presumably made no mention of this website search being done.
if i buy drugs out of a house on monday, that gives probable cause to execute a search warrant on the house (lets say for sake of freshness) for the next week.
is it possible that in the interim, the dopers move out, sell the house, and somebody else moves in? sure.
Cops put people under the gun for much less than that, and in my presence I have seen such an occurance. One cop can't catch them AND clean them. If there were two for that room then cuffing them and holstering after a fair body search, through the sheets would've been judicious.
As a civilian, if I ever have to point a gun at anybody again, esp. in my abode or property, I will hold them at gunpoint until cleaned and caught.
Google Tueller Drill.
Even naked people can disarm a cop, esp. two naked people, if one is really cute.
correct. and they upheld that responsibility. sorry, but the 4th does not require a website search before warrant execution to eliminate the *possibility* that the house was sold between the time of the drug buy and the execution of the warrant.
that's a ridiculous standard. the standard is PROBABLE CAUSE. and they had it
i suggest you review what is and isn't probable cause. it is (apparently) nto what you think it is
no. what would have been MORE judicious is to CUFF FIRST, and search afterwards. that is how most officers are trained, and what is generally viewed as the safest and best methods of detention (in situations where cuffing is warranted, legally justified)
the fact that the peeps were nekkid (which of course would not be known until after they stood up from under the covers, but could reasonably be suspected) is too friggin' bad.
because somebody might be naked, within a private residence, does not mean that the cops are now constitutionally required to use the LEAST intrusive or embarassing means to detain them
again, read your constitution. what is required is that thye act reasonably.
A surprisingly large number of you think it was quite appropriate for male police officers to gawk at a naked and helpless woman. That, to many of you, is reasonable police conduct.
We'll just have to agree to disagree. (Though I will not go so far as to say that this is an issue over which reasonable minds can differ.)
Also, as the Duke Lacrosse case showed, even the "right" people - through no fault of their own - can end up on the wrong side of the law. It's cases like the one you're defending that allow the innocent to be treated as if they are guilty. I will sleep well knowing some of you who support this decision may very well get to experience first hand what you consider to be "reasonable" police conduct.
It doesn't follow from the fact that detaining non suspects has been viewed as reasonable that not going the extra step to preserve dignity is reasonable.
"Yes, and they could have ordered out for a pizza before ordering these people out of bed...
maybe there should be a requirement that before conducting a warrant, there be at least two female and two male officers so that nobody is embaraseed by being naked in front of the police...
this decision would not be changed by 'civil libertarian justices'...
it would be changed by electing justices who were prone to ignore both precedent, and our constitution."
I don't think your sarcastic pizza comment has any value: Obviously, there is infinitely more reason to hold as a matter of law that the extra mile must be gone to preserve the dignity of non-suspects than to hold that they must be ordered pizza. Your proposal for two male and two female officers is would actually make matters worse if they came in the home and found a naked couple not under their bedsheets; I agree that nothing should be actionable in that circumstance, but that has no bearing on this case when conduct consistent with officer safety could have been taken after the officers came into the bedroom and found a somewhat unusual situation. The fact that SOP didn't require them to take the extra step doesn't mean that the officer conduct was reaonable under the constitution. Finally, I disagree with your suggestion that civil liberatarian justices wouldn't or couldn't overturn these precedents without ignoring our constitution. I see no authority in the constitution for the disproportionate weight that courts have given to administrative convenience when determining what search or seizure qualifies as reasonable. In my view, the weight of precedent is at its lowest, when it is found to time and again lead to results that make other constitutional provisions protections' useful only to those least deserving of them. All the constitutional protections afforded to people to whom probable cause has attached commited a crime punishable by six months imprisonment are rendered useless to those who spend longer in jail because the excessive bail clause is not properly enforced. The Speedy Trial clause is useless to those allowed to rot in jail as "material witnesses." I don't think it is radical to adopt the view that those not convicted (and a fortiori those not suspects) have a constitutional right under the fourth and eighth amendments, if not to the least restrictive setting possible, to be treated in a way that doesn't put administrative convenience first and personal liberty second.
that would not ENSURE officer safety. officer safety would not be ENSURED until they were detained in handcuffs.
"A surprisingly large number of you think it was quite appropriate for male police officers to gawk at a naked and helpless woman. That, to many of you, is reasonable police conduct. "
sorry. not in evidence. nice strawman. please show me where somebody said it was ok for a male officer to gawk at a naked and helpless woman (nice sexist assumption - a naked female is helpless?), or a female officer to gawk at aq naked and helpless man?
sorry. not in evidence. where does it say the cop(s) GAWKED at anybody?
"We'll just have to agree to disagree. (Though I will not go so far as to say that this is an issue over which reasonable minds can differ.)
Also, as the Duke Lacrosse case showed, even the "right" people - through no fault of their own - can end up on the wrong side of the law. It's cases like the one you're defending that allow the innocent to be treated as if they are guilty. I will sleep well knowing some of you who support this decision may very well get to experience first hand what you consider to be "reasonable" police conduct."
many people at warrant ARE innocent people in the wrong place at the wrong time. that's a given. it is still reasonable to detain EVERYBODY present at warrant sevice IN HANDCUFFS until the entire scene is "made safe".
that is how pretty much every warrant is done.
if you happen to be present when a warrant is served at joe's house, and are completely innocent, you are still gonna get handcuffed for officer safety until they clear the house and detain all present.
entirely reasonable, and case law supports that practice
if you HAPPEN to be under the covers naked when they do this, that sux, but it is not unreasonable
i love your strawman about the gawking cop(s) though? who defended gawking?
it is NOT a matter of the innocent being treated as if they are guilty. i suggest you research why cops detain everybody present upon warrant service. it's HARDLY A presumption of guilt
(I'm doubtful, but I'd like to hear other views.)
whit the policeman responded to that wholly pertinent question with:
maybe the police should have read all the peer reviewed studies that answer that question.
assume for the sake of (your absurd) argument, that it's a rare occurrence. so WHAT?
the cops followed intelligent and safe (and REASONABLE) procedure.
Ah, the nimble police officer does a pirouette and a balletic leap as the sands shift. Before you said, as you rolled your eyes, "so, obviously, black people never have white house guests (rolls eyes)." But now the proper question is posed, the number of black people who have white kids answer the door for them and have a white couple naked in bed in the bedroom is irrelevant? Reasonable people usually act on the basis of some rought notion of probability. That doesn't require reading peer reviewed studies.
the 2nd guessers seem to think the cops should have made (a race based i might add) decision that the suspects weren't there because there were people of another race present.
so, you are saying the police should have RACIALLY PROFILED by assuming that they could not possibly be at the right house, since white people answered the door and were sleeping in bed?
I have difficulty understanding how one questions anything or criticize anything that has happened in the past without becoming your pejorative "2nd guesser." It seems you would have us accept anything the police have done as reasonable because otherwise we are second guessers.
In any event, what you say--that I'm arguing the police should have concluded the suspects weren't there because there were people of another race present--is not true. It's what the white kid did--answer the door--and where the white couple were--in the bedroom, naked in bed--that would have made reasonable people--and reasonable cops, if there is such a thing, and I'm beginning to think not on the basis of your ramblings--think again and question whether something was seriously amiss.
Your protest that I would have the police make a race-based decision surprises me. Your accusation of racial profiling is a ridiculous bugaboo in these circumstancees. Police act on the basis of racial identification all the time. If, for example, eyewitnesses say a criminal suspect is black, police, on coming across a white person near the crime scene, take that into account--and it's not racial profiling. The suspects in this case were black; reasonable police officers would have taken that into account on coming across a white kid answering the door and a white couple in a bedroom naked in bed, and they would not have been engaging in racial profiling in doing so.
Someone is unclear on the concept of "damages."
The point is a good one that some apologetic sum -- $5,000 say -- should've been offered by the city. Now, maybe it was, and the victims saw payday glittering in the horizon &turned it down. Maybe not.
But cops ordering my wife to display her naked self for their inspection is NOT one of life's little trade-offs that I should just suck up. Sorry if anyone thinks otherwise.
Is it possible that in the interim, the dopers move out, sell the house, and somebody else moves in? Sure."
Your argument is not on point. If it is known that a drug sale occurred in a given house on a given day, is it reasonable to search the house one week later. It doesn't follow that, when all that is known is that given people are suspected of fraud and identity theft, that is reasonable to search a residence supposedly theirs without checking to see if the house was sold. (I'm not saying that that necessarily should be constitutionally required, only that it doesn't follow from your example that it is not.)
You mention several times that detaining everyone in the house in a drug warrant case is both SOP and the safest alternative. If it's SOP, how do you know it's the safest alternative? Were you a cop before it became SOP? Have you read studies of places where it wasn't SOP? The reason I ask is because I've often seen law enforcement types decry the chaos that will ensue if any change is made to SOP. Miranda was supposed to bring down the gates of hell, so was videotaping or audio taping confessions. Then audio-taping police contacts. Now most officers prefer the audio taping because it protects them from false accusations. So, the question is, how do you know detaining everyone is better than the alternatives unless it either was not SOP somewhere you worked, or you have broken SOP often enough to give you a statistically valid sample?
I'm not sure I follow your argument. It sounds like there were no material facts in dispute, and the Supreme Court made an interpretation of the meaning of Fourth Amendment law. In your view, should a jury have interpreted the Fourth Amendment instead of the Supreme Court? If so, why?
that would not ENSURE officer safety. officer safety would not be ENSURED until they were detained in handcuffs.
No handcuffs are necessary if the bystanders are made to show their hands at all times.
"Many people at warrant ARE innocent people in the wrong place at the wrong time. that's a given. it is still reasonable to detain EVERYBODY present at warrant sevice IN HANDCUFFS until the entire scene is "made safe".
that is how pretty much every warrant is done.
if you happen to be present when a warrant is served at joe's house, and are completely innocent, you are still gonna get handcuffed for officer safety until they clear the house and detain all present.
entirely reasonable, and case law supports that practice
You're certainly right about the case law, but I think many readers will agree that it's fundamentally flawed. I see no constitutional basis to allow cops to presume the worst of non-suspects so much so that they view it as unsafe to simply escort the (dressed) non-suspects out of the house. I don't see why the constitutional balancing weighs the marginal increase in officer safety more heavily that the indignities of the deprivation of freedom suffered by the hundreds, or thousands of innocent people victimized by this SOP approved by the courts.
Even if the warrant was valid when issued, it was obviously stale when executed. The suspects hadn't lived at the address for months. Equally obviously these police didn't want to know that before they initiated the raid. If they had wanted to know, they would have checked ownership records before raiding. At least that's obvious to ordinary mortals if not to Supreme Court Justices.
As whit pointed out above from his own experience, diligent police do check ownership records before raiding.
The only good thing about this decision is that Souter would have denied cert.
1) Verifying that the couple was unarmed,
2) Checking to make sure that sheets, robes, or sweatpants did not contain weapons, and then
3) Telling the couple to cover up?
It seems to me that the couple was naked for longer than they needed to be, although I don't think that getting them out of bed in the first place was unreasonable.
Injury then. This was a de minimis violation that created no real injury that should have been compensated. If there was no woman involved, even Reinhardt would have passed on the case.
Not everything that happens needs to have a monetary amount attached to it. Not even $5,000. Not even $5.
The police saw them naked for 2 minutes. They were in the middle of serving a warrant in a drug situation. This is a high tension event for the police too. They apologized at the scene. The couple should have been satisfied and just relieved to be finished with it.
Nick
Is that why the cable TV guy who left a running video cam in a female customer's bathrrom got fired from his job and is under investigation by the police?
Is that why a jury returned a hefty damages award against an apartment owner who had peep holes in some apartments where women lived.
In other contexts, we regard involuntary nude exposure as quite injurious and worthy of punishment and damages.
We send away peeping Toms for long jail terms. Men who install peep holes or video cameras in places where women are likely to disrobe get long jail or prison terms and/or large damages awards levied against them.
That it's the police who see the nude body doesn't make it any less offensive.
Does anyone really think that police should allow possibly-armed suspects to remain in bed on the suspects' sayso that they are unarmed?
The police behavior, once the raid started, seems perfectly reasonable: they ordered the people out of bed and, as soon as practical, brought them robes, then apologized and left.
No one (okay, not many people) likes being naked in front of strangers, especially not opposite-sex strangers, but it seems pretty petty (especially compared to the other important thing -- having armed strangers rummage through your house and belonging -- that everybody seems to be fine with).
So, you are saying that you wouldn't pay anything yourself to avoid a situation like this? It wouldn't even be worth $5 to you to avoid having a bunch of police officers engage in a suprise invasion of your house and drag you and your wife out of bed naked??
If this is the case, rest assured, you are in the minority. Most people would be willing to pay a significant sum to avoid going through this sort of situation.
I notice that you emphasize the 2 minute duration. But, you know, if I someone were to chop off your arm, that would only take 30-seconds. If someone were to force your children to watch a Faces of Death killing, that might take 2 minutes. The point -- the serious psychological effects of such acts last longer than the acts themselves.
If that had happened in this case, we'd be taking issue with that, too. But it didn't. The police recognized their error before they conducted a thorough search.
The search described here seems to do that.
What irks our civilian sensibilities is the rudeness of the steps necessary to achieve that safety.
Entering their home uninvited, ordering them around, searching their things, these are negations of their personal autonomy.
Placing them at gunpoint is an assault and a threat to their safety.
Processing them while nude is an affront to their dignity.
We allow all this 'Legally' because it is said we accept the consequences of these searches.
How did we get to this point where the Law allows what Civilized people formerly rejected?
It just bears remembering that we as a nation once went to war on the mere allegation that our women had been strip searched by a foreign power.
The Maine was the trigger, but the searches were the cause. Now we yawn at stories of airport safety inspectors doing the same thing.
I think the crux of this issue is this.
Should civil liberties be viewed as what you receive when the rules are properly followed, or as what you as a person have a right to expect.
It seems that we as a nation have chosen to place the process over the prerogative.
This was apparently reasonable because the person who was actually suspected of a non-violent crime was known to own a gun?
The search described here seems to do that.
What irks our civilian sensibilities is the rudeness of the steps necessary to achieve that safety.
Entering their home uninvited, ordering them around, searching their things, these are negations of their personal autonomy.
Placing them at gunpoint is an assault and a threat to their safety.
Processing them while nude is an affront to their dignity.
We allow all this 'Legally' because it is said we accept the consequences of these searches.
How did we get to this point where the Law allows what Civilized people formerly rejected?
It just bears remembering that we as a nation once went to war on the mere allegation that our women had been strip searched by a foreign power.
The Maine was the trigger, but the searches were the cause. Now we yawn at stories of airport safety inspectors doing the same thing.
I think the crux of this issue is this.
Should civil liberties be viewed as what you receive when the rules are properly followed, or as what you as a person have a right to expect.
It seems that we as a nation have chosen to place the process over the prerogative.
The investigation went from Sep to Dec. The house was bought in Sep. Exactly when did the owners take possession? It doesn't even say a suspect(s) ever lived there. Maybe they had just visited? Was a drug buy made there during the investigation?
Sigh! Despite all, this was hardly a 5-4 ruling. No facts were contested. Poor search outcomes are not illegal.
Is not "Reasonable Search" supposed to mean reasonably conducted?
Is everyone missing that the warrant covered TWO houses?
Why was that? Does that impose use of judgement on the searchers?
R. Richard Schweitzer
s24rrs@aol.com
They had an address.
That was enough for them.
Think about THAT for a while.
Do you NOW begin to get what is WRONG with this?
The way the police treated the people is just normal for police. Rude and Crude. the Police are right and YOU are a criminal.
The way and how they got the warrent is the problem.
There is NOTHING stopping YOU from being NEXT.
Have you pissed off any cops?
The fact that the judges on the Court of Appeals disagreed on both questions convinces me that they should not have announced their decision in an unpublished opinion.
This is not a correct hypothetical, because individuals derive a benefit from the ability of the police to use this tactic in the apprehension of criminals, and that benefit could be estimated economically. So it's not simply a case of saying "how much would you pay to avoid this situation?" A more precise question would take into account how much you are personally losing (through higher crime rates, more dead cops, etc.) by the police not having the right to take these safety precautions.
I'm not saying people wouldn't still pay to avoid the situation, just that you need to take into account the benefits they are losing as well.
matt
These strawman are so huge that it hard to even see over them. Do you guys really believe that they even remotely equate to what went on here? There was no physical injury, no videos, no prolonged and repeated viewiing, no sexual motives, it was of very limited duration.
But she would be ok with being held at gunpoint? Or having the police there at all in the early morning? If these are not actionable, then what does a brief naked period add to her injury?
Just because someone would be upset does not make a constitutional violation
Most people would crap in their pants at being held at gunpoint by the police. Being naked would just mean one less item to wash.
It's a pretty sad erosion of our liberties, when your home can be forcefully invaded by weapons-wielding bumbling government agents, all because they think you have a gun in your home; with the judiciary (who supposedly work for us) acting as cheerleader.
Keep it up, o ye agents of government, and you're going to find yourselves on the wrong side of the People who have had it with your arrogance and abuse of powers.
Entering someones home safely requires patience and careful study. The police should take a lesson from some of their perps who regularly case the intended victims for days or weeks prior to entering a premisis. Very few situations require the police to crash in like gangbusters when the more subtle approach practiced by a good burglar would suffice.
One also wonders how the police, even had they checked the ownership of the house, were supposed to know that a)Retelle and Sadler weren't victims of identity theft, having been used by the perps to purchase the house, and b) that Retelle and Sadler were not black.
Orin, as you know, we could go back-and-forth all day over the difference between factual and legal questions. Here, we could wax on and on over whether something is "reasonable" as a matter of law or fact. I think Bobbie was saying that, as a matter of fact, it was unreasonable for police to make people stand around naked for several minutes. The Supreme Court held that, as a matter of law, it wasn't.
I have thought long and hard about these issues and have not yet found an easy (or maybe even articulable) answer for when the Supreme Court should let the jury decide whether something is reasonable. My general reaction is that they should leave these issues for a jury to decide, in light of the fact that litigants are constitutionally guaranteed a jury in all civil cases involving over twenty dollars.
Here, I think the issue should have been left to a jury. The Court should have asked: Could a reasonable jury have concluded that what the officers did was unreasonable? To me, the answer seems obvious - Yes.
If that is the case, why then, as a matter of law, was the conduct held to be reasonable? (I truly don't know, and am often left holding my hands up in exasperation.)
My general issue with the comments I've seen is that people are defending the conduct as a matter of fact. Invading the marital bedroom and making people stand around naked is reasonable police conduct? I am saddened that so many of my countrymen consider this so.
They had a valid warrant. (As Orin said, for whatever reason the homeowners didn't challenge the warrant.) That police can search your home with a warrant is not an "erosion" of your liberties. It has always been thus, since the day the Bill of Rights was drafted.
They did not "forcefully invade" the house -- it wasn't a no knock warrant -- and it was because they think that you commited fraud, not that they think you have a gun.
Normal detention while you search my house: I would be cranky, sure, but it would not be something that would inflict psychological damage. Being naked in front of male cops, however, would be right up there with physical assault - in fact, I would prefer to be beaten in a search than made to stand naked at gunpoint. I would feel helpless... no sexist assumptions needed that a nude female in the company of armed men is truly helpless. Any action to preserve modesty would be interpreted as an action that would compromise the integrity of the situation, such as turning around, covering oneself, or searching for clothing.
But she would be ok with being held at gunpoint? Or having the police there at all in the early morning? If these are not actionable, then what does a brief naked period add to her injury?
Abject humiliation. The physical harm from rape is minimal, yet it is considered one of the worst crimes that can be committed by one human against another. Having men stare at my body against my will would be, to me, sexual assault. Whether or not the perpetrator intended it to be so, or some incidental societal benefit was derived from the assault, does not change the fact that, for the woman, the action is entirely without her consent and psychologically damaging.
Maybe it's just my (dirty?) mind, but, unless the sheets were pulled up to their necks, it's apparent that they aren't wearing shirts!
you said: No handcuffs are necessary if the bystanders are made to show their hands at all times
not what i said. i said if you are talking about ENSURING it, you handcuff everybody until the scene is made safe.
just because somebody is showing their hands does not mean they cannot hurt (or kill) the officer. heck, i have a friend on my dept. who was killed by a naked offender. and he could see his empty hands.
stuff happens.
it is (prior to this case) perfectly acceptable to detain everybody present at a warrant - in handcuffs - to freeze and secure the scene, THEN sort things out and unhandcuff as appropriate. nothing in this case makes this conduct unreasonable
it sux that these people had to (lord forbid) be seen naked by the cops - but that does not make their behavior unreasonable.
First, I am glad that you can read the minds of these police officers. I wish I could.
Whether or not their were sexual motives, the act still potentially causes psychological damage in many people.
how it would feel - to you - is hardly relevant. this is not about feelings. it's about the law, the constitution, case law, precedent, etc.
the issue is the reasonableness of the officer's conduct. that is viewed from an objective standpoint by the court: would an officer based on the facts and circumstances known to the officers at the scene, be reasonable in taking that action.
of course they could. of course, by taking the sheets off the bed, they would have been exposing the naked bodies, so the effect would be roughly the same.
and again, the reasonableness standard does not require that cops use the BEST method or a BETTER method, merely that the method used was reasonable. there is a difference. arguably (hardly obvious) your method (in 20/20 hindsight) might have been better.
but that's really not the point.
What benefit are derived when the police do not do a "quick web search" to see that the house has changed hands (and thus an assessment needs to be made concerning the identities of the occupants?)
I agree completely with the point in the abstract. We need to consider the benefits as well as the costs. But I do not think that the benefits of avoiding a basic check on the current occupants of the house before barging in violating peoples' privacy, personal space, and dignity are very high.
NickM has noted that owner and occupants are not always the same thing. However, when ownership changes, occupants often change as well. If the owners of the house have changed, it makes sense to check with the owners of the house to see if they are leasing it to the suspects. Further, if the suspects themselves were the previous owners, they are in all liklihood not the new occupants. Most people move out of the houses they sell, rather than renting from the new owners.
However, note the following. Even if the benefits do exceed the costs, that does not mean that the individuals in question should not be compensated. Here, the benefits are widely dispersed and benefit the community generally, but the costs are concentrated on a few particular individuals. Why should this "tax" be borne by these individuals in particular instead of the community generally? I do not think we should go overboard with damages, but I would think it would be reasonable to provide compensation in the range of $10k to $20k for an instance such as this. Furthermore, it would be reasonable for the police officers to be disciplined if they violated police department policy and to require the police department to change its policy to require basic checks on the identity of occupants before barging in, if it doesn't already do so.
whit tells us, though, that SOP in cases where a warrant is executed is to "detain" everybody on the premises, which to him means to put them in cuffs.
I guess what we learn from this is, not that Rudi Giuliani was being heavy-handed when sent 50 federal marshals, armed with automatic weapons and wearing bulletproof vests, to raid the offices of Princeton/Newport and execute a search warrant, or when he had arrest warrants executed on Robert Freeman, Richard Wigton, and Timothy Tabor at their offices and had them led away in handcuffs.
What we learn instead is that everyone in those offices who *wasn't* led away in cuffs should be pretty damn grateful they weren't handcuffed and held at gunpoint until the marshals determined that the scene was secure. And that if the marshals *had* cuffed them, the courts wouldn't second-guess that judgment.
it does not mean "the procedure used in every search warrant".
example.
i once made a # of ecstacy buys from a 19 yr old who lived in a house with his parents. i was in the house a # of times, he had no criminal history, and the parents didn't either.
when i got my warrant, we did not do a dynamic entry, nor did we handcuff the parents (who were present when we served the warrant).
SOP - means that it's how stuff is handled in general. not that it is used in every case.
that was my bad that this was a fraud, not a drug case.
you're begging the question. what "police error"? (in this case).
Exactly. Arguing about police behavior seems to miss the point. These people bore some cost for the benefit of the community. The opinion even says so. Why shouldn't they be compensated?
It is interesting to compare the response to this case to the response to Kelo, and eminent domain in general. Being forced to give up property because government decides that will benefit the community demands, at a minimum, compensation. But being damaged this way does not. Why?
The major problem with your formulation is that you transform any criticism of police conduct as somehow requiring "perfect" behavior. Then you respond that the 4th Amendment does not require perfect behavior.
You, are of course, correct.
But guess what, that doesn't mean you can respond to all police fuck ups by saying that imperfect behavior is acceptable. The funny thing is that all unreasonable behavior is also imperfect. To say that the behavior is imperfect is not a defense!
In this case, the situation (probably) could have easily been avoided by exercising basic care. Given the dangers of invading the house of even an innocent individual to both the occupants and the police, as well as the fact that the house is sacred (the 4th Amendment specifically protects houses!) and the privacy interests at stake, it is unreasonable, not merely imperfect behavior, to not do some basic checking before barging into peoples homes.
We agree that the police did not act perfectly. The question is whether the police made a reasonable mistake. They did not.
Here is why:
The benefits of doing a quick web search before invading a house is extremely low.
The cost of doing a search of the premises of innocent citizens is very high. Citizens lose respect for police who display blatant incompetance. Innocent women who are forced to expose themselves to potentially leering police officers creates psychological damage that lasts much longer than the duration of the 2-minute assault. The citizens perception of the sanctity and security of his home is lessened.
The probability of a fuck up when the identities of the occupants are not checked is high. People move a lot. Especially those who engage in criminal activity.
Given a very low benefits of avoiding checks and the high costs of mistaken search of an innocent persons home along with the relatively high probability that these sorts of mistakes will happen when checks are not made, it is patently unreasonable to not do a check. Period. Either the department should pay (if they didn't train officers to do basic checks) or the police officers should pay (if they didn't follow police department policy).
The founders would never consider police officers invading the homes of innocent individuals when a minimal investigative effort would show that such invasion was entirely unnecessary to be reasonable.
Let us move away from this straw man. Police officers do not have to be perfect (i.e. no one expects a police officer who is not trained to do basic checks to somehow magically figure out that such checks are appropriate all by themselves). But when they engage in searches, the text of the 4th Amendment requires that they behave in a reasonable manner. ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.") Here, the police destroyed the security of people in their houses, when a reasonable police officer would have done basic checks (i.e. a "quick web search") to ensure that the occupants of the house were in fact likely to be the suspects. Having neglected that basic check (which has a very low cost to perform), the police cannot claim that their actions were reasonable. A reasonable police officer does not violate the security of his fellow citizens in their houses when it is completely unnecessary and can be avoided with minimum effort! The police officers here took an oath to uphold the Constitution, and they failed in their sacred duty to uphold it in this case. Whether that is the fault of the individual police officers or their department, a Constitutional wrong has been committed.
Should have been:
i would assume that nothing would prevent the LE agency (or the govt. body that manages them) from offering these people some $$$$.
regardless of the reasonableness of the officer's behavior, they were completely innocent and it sux what happened to them.
iow, i think this case falls under "lawful but awful" so to speak.
byomtov, i think the point is that the court (rightly) concluded that what the cops did in this case was not unreasonable or a violation of anybody's civil rights. it does not follow that what happened to these people totally sucks, and they did nothing to bring it on themselves.
you can't make the govt. pay unless you can show some sort of rights violation, etc.
i agree with your post generally - iow, you understand the concepts - however, this is where we differ
the issue (as you rightly point out) is this:
did the fact that the cops did NOT do a web search make the search warrant applcation/execution UNreasonable.
i say no. you say yes. SCOTUS says no.
that's where we differ.
i DO agree that such basic checks SHOULD be part of police procedure (in this day and age of the internet) and should be added to any warrant checklist.
i happen to be an "intel geek" and love to use various websites and search methods that involve technology. up until relatively recently - cops (and people in general) didn't use the web for anything. but GIVEN the fact that various easy to access resources are available, i think police and the public would be BETTER served if policies and procedures were amended in this way.
but the fact that they did not do this search does not make their actions UNreasonable imo. again, that's where we differ
There are a lot of other factual issues here, but it boils down to that. Maybe the warrant was good, maybe it wasn't; maybe they had permission to search the house, maybe they didn't.
But if I were a cop, and I needed to search a room with a possibly armed bystander, I am not going to let him stay snuggled under the covers while I turn my back. So he doesn't want people to see him naked. Sorry, it's a tough life, but my desire not to get shot over-rides his desire not to have his naughty bits exposed for a few minutes to four or five guys who really could not care less.
Should a person who is searched, or wrongly searched, be compensated by the community? Possibly, but, barring wrong-doing of the sort not seen here, not out of the policeman's salary.
Is the answer going to be having a judge or jury look at someone and say: "They look black [white, asian, Indian, Aleut, Pacific Islander]to me"?
In construing a search warrant should we view a description of "African American" as meaning obviously African American, so that in any close call the officers executing the warrant should know they have the wrong person(s)?
If someone has self-identified themselves as a member of one race, but could "pass" for a member of some other race, should that be in the warrant?
Just out of curiousity, how far would this have to go to be unreasonable? If the officer had handcuffed them while still naked, set one officer to watch their naked, handcuffed selves while the others "secured" the rest of the house, would that have been reasonable? I'm going to assume you would say no. But it clearly would have provided some very marginal extra amount of safety for the officers. My point is that providing some extra margin of safety is not the be-all and end-all of reasonableness. At some point, you have to weigh the intrusiveness of what happens.
In this particular case, I agree with you it was likely not unconstitutionally unreasonable. However, I agree with the other poster who says reasonable minds could differ, and it probably should have gone to the jury.
My concern is the very low threshold you seem to have for what's unreasonable. It seems that you're standard is that if it's allowed by the LE policy, and makes the officers feel safer, it's not unreasonable. In the ecstasy buy you mentioned before would it have been unreasonable of you to cuff the parents? What about to cuff them naked? What if you had gone to the house three months later and found a completely different family? Unreasonable to cuff them?
1. Several posters referred to the officers' safety. I'm sorry, but IMHO, the officers are supposed to protect the citizens. So their safety should not come first... the safety of innocent citizens should come first. Not that the police should not be concerned for their own safety, just that it should come second.
2. Any search warrant executed on an innocent person is a mistake. It may be a reasonable mistake, but it's still a mistake. I really dislike the way that law enforcement bears little or no cost for their mistakes. They really need to have some sort of liability or there's no particular incentive for them to be careful in executing warrants. This case is a good example. They got a warrant and executed it based on information that was MONTHS old. What were they doing for all that time?
EI
It's a transaction between adults. How is it that if a minor child answers, that is considered serving the warrant?
If cops enter my home, first without my acquiescence to the warrant, burst into my bedroom with guns drawn, and threaten deadly force, it's an invasion. And all the lawyering and Supreme Court nattering aside won't change that fact. The Law has become perverted when the legal version of invasion no longer matches the real one.
Whit,
I'm not disputing that as a matter of law. I do wonder why it is, though. Sure, it would be impractical when the damage at issue is small, but I the police can act properly and still cause serious damage. Given that there are such cases the statement that
Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost.
sounds more than a little cavalier about what is sometimes a serious matter. No doubt it's not up to the Supreme Court to address this matter, but there is a grating air of "tough s***" to the statement.
i think the cops should have covered their nakedness up as soon as was (to borrow legal terminology) "reasonably practicable".
we deal with naked people a LOT. the general rule of thumb is you get some coverage on the person as soon as is reasonably practicable.
a common misperception i see in this (and other threads) is that officer safety only benefits the officers. that is false. it also benefits suspects, and bystanders. it's not a matter of what makes officers FEEL safer. it's not about feelings. it's about facts and circumstances combined with training, as to what is safer, or at least what officers THINK (not feel) is safer, based on training and experience.
assuming there are two officers in the room, once the nekkid people were handcuffed, and assuming one of the cops was not needed to continue the search in other rooms, they should be given something to cover up.
as for my example. would it have been unreasonable to cuff the parents? not necessarily. but imo it was BETTER not to handcuff them, so i didn't. as to cuffing them naked. frankly, the naked thing is largely irrelevant even though i know it seems SO important. if it is reasonable to handcuff somebody, it's reasonable to do so if they are naked. it's really that simple.
as for going to the house three months later? not with a warrant. at least in my jurisdiction, it is entirely UNreasonable to execute a search warrant 3 months after you develop probable cause, since the PC is no longer fresh, and the warrant would be expired. search warrants expire.
i could do a knock and talk 3 months later, but that would definitely not entail handcuffing.
not from a legal perspective.
we don't require (in our constitution) that warrants be issued with 20/20 hindsight, nor that they only be served on guilty people, nor that they are based on evidence beyond a reasonable doubt, etc.
there is nothing to prevent us from passing a constitutional amemdnemtn to require a higher standard of evidence for search warrants - but the standard we HAVE is probable cause.
you are necessarily going to have innocent people's houses searched based on that standard, just like you are going to have innocents arrested based on probable cause.
one reason: people lie. cops go to a DV. man says his wife hit him in the face. he has a red mark on face. she goes to jail. turns out she's innocent. guy self inflicted the red mark and lied about being hit.
does that make the police actions "a mistake"?
the reality is that we do not have perfect knowledge.
if you want to ensure that NO innocent people are ever served with search warrants, than that's fine.
change the constitution.
heck, you could outlaw search warrants all together. that is the ONLY way you can ensure that no innocent people have a warrant served on them.
but analysis of law enforcements (not to mention civilians) actions are viewed from a reasonable person standard, not an Omniscient God (tm) standard.
it is ENTIRELY possible (heck, it happens) for cops (or citizens) to do EVERYTHING right, and still an innocent gets shot or searched.
that's the reality of living in the real world. where we do not have perfect knowledge.
and if you want perfect knowledge, we might as well move towards the type of surveillance society we see in the UK. that would suck far more. not that they have perfect knowledge, but they certainly have BETTER surveillance and knowledge of what their citizens are (and aren't) doing as they go about their chores.
how it would feel - to you - is hardly relevant. this is not about feelings. it's about the law, the constitution, case law, precedent, etc.
the issue is the reasonableness of the officer's conduct. that is viewed from an objective standpoint by the court: would an officer based on the facts and circumstances known to the officers at the scene, be reasonable in taking that action."
If the law renders irrelevant an action's effect on the specific person it's performed on, that seems to me a good indicator that scrapping the law in its entirety and starting over from scratch might be a good thing.
You quoted the Fourth Amendment and boldfaced applicable parts, except for being secure in one's person. IMHO, that is the most applicable word to this case. Being naked at gunpoint is not being secure in one's person!
While I do understand that it's not about whether or not I would feel violated, the "reasonableness" test, to be at all sane, must encompass the harm suffered by citizens. I would be interested to see if there is a gender differential on whether or not this is perceived as being "reasonable."
If "reasonableness" were only to encompass that which makes police officers safe, the Fourth Amendment would only protect against irrational acts - that which is not in the best interests of the police.
I'm confused as to why the sale of the house is relevant. As someone else noted, sale of a house does not always equate to change of those residing.
I would think there should only be an issue if the police officers did not behave appropriately. If they were acting professionally then I'd say no harm no foul.
A simple apology would suffice for me were it my house, assuming the officers were not "gawking."
Is that why a jury returned a hefty damages award against an apartment owner who had peep holes in some apartments where women lived.
Please, you can't even equate this incident to those. What was the intent? Obviously the peepers had salacious intent. From the account, the officers did not.
It is immaterial what was going on in the minds of the police officers. What matters is if the victims felt degraded. Don't you have sensitivity training where you work?
However: the fact that this went to court is ridiculous. There's nothing that I am seeing here that qualifies as inappropriate or excessive. Both of these people have been seen by complete strangers naked before (in the locker room at the gym), and to treat this as a major civil rights violation shows a real serious misunderstanding of what is a real civil rights violation.
Isn't your statement a little circular?
You say;
And earlier you said this was the safest way to execute search warrants. But, saying it's the best way to execute a search warrant because it's the way you've always done so is a little bit disingenuous. Secondly, while I will assume you're right as to this specific case, just having a court agree or disagree with you doesn't necessarily mean you are right as the law currently is (unless you're willing to concede error in each case where the 9th overturns you and scotus doesn't accept cert).
More importantly, it doesn't mean that is the way the law should be. Once again, in this individual case, I think the Plaintiffs should have lost...at trial. But that doesn't mean just because an officer feels safer (and we are talking about their feelings, because these things can't really be studied) or even IS safer doesn't mean it is or should be constitutional. There are weapons that can be hidden in body cavities, but I assumed you wouldn't have supported cavity searches of these two people (at least absent some particularized suspicion that they had hidden something). Again, the question is not did it make the officers feel safer (or be safer) the question is, what is the trade-off worth. At some point individual dignity and privacy has to be valued (even by LEO). Unfortunately, I only see that happening after they've been violated in far, far too many cases.
Taking a shower at gym = being held naked at gunpoint. Your comment alone made wading through this thread worthwhile.
I suppose, then, since most of us have been seen naked, there is no right to privacy. I imagine, then, you wouldn't mind if someone installed a camera in your bathroom? How about if someone set up a camera in your wife's or child's bedroom? Again, since they (presumably) have been "seen by complete strangers naked before," there is nothing
"inappropriate or excessive" about the hidden cameras.
(Alas, one can always have a sporting time with "Cramerian logic.")
Factually, not necessarily true. When I go to the gym, I either change in a stall or disrobe in such a way as to not be naked (i.e. putting on a shirt before taking off the one underneath it). I can face a wall, use a towel, or find other ways of preserving my modesty. It's hard to say that this woman has been seen in a locker room naked: it is the rare woman that disrobes completely in a locker room (or even in a dorm room in front of her roommate).
Furthermore, locker rooms aren't filled with men holding guns, with the legal right to use them.
Your argument (and I hate to be melodramatic) almost sounds like, "Why should rape matter, if she's had sex before?" That which can be benign (or even rewarding) is incredibly degrading when done involuntarily. If you don't think that degradation is a civil rights violation, fine, but it's tough to believe that this was not degrading.
What great sarcasm - NOT! I think there's quite a difference between being politically incorrect and not holding people naked at gun point. While it might be the case that being told at sensitivity training to use "African American" instead of "black" is somewhat overly PC; being told not to hold people naked a gunpoint seems a quite different.
In the last couple of comments, e.g., we were told:
1. Taking a shower in the gym = being held naked at gunpoint.
2. Being told to not use politically incorrect language = being told not to hold someone naked at gunpoint.
Wow.
Good point. My highlighting the term house should not be construed to deemphasize the importance of security in one's person. But, in this case, the fact that it is a house (as opposed to say, a business) is especially relevant, since that goes to reasonable actions that police could and should have taken to determine who was occupying the house before barging in.
Contrary to this admission, whether you would "feel" violated is in fact very relevant to any reasonableness inquiry, presuming, of course, that you are a "reasonable person" (i.e. do not have a hidden mental disorder of some sort). The dichotomy that someone mentioned above: "how it would feel - to you - is hardly relevant. this is not about feelings. it's about the law" is stated from a position of pure ignorance. In fact, what is "reasonable" or not does go to our subjective judgments concerning how a reasonable person would feel. For example, it is not reasonable to perform a strip search due to mere Terry suspicion -- a level of suspicion below probable cause that allows police to perform a pat down and briefly detain an individual to ensure their own safety or to prevent an imminent crime -- because a reasonable citizen would feel more violated by a strip search than they would by a mere pat down. For another example, one factor for whether a person is in custody and thus seized in a Constitutional sense is whether a reasonable person would "feel free to leave." Obviously, any dichotomy that suggests that the feelings of reasonable persons is completely seperate from the law is a false one, stated from a position of pure ignorance. Steve, who made the above false dichotomy, is speaking from a position of purely wishful thinking.
That said, often we talk about the "feelings" of the hypothetical "reasonable" man or woman, rather than the specific feelings of a particular individual. In that sense, we are talking about "objective" rather than "subjective" feelings. But, even then, at times particular attributes of the particular individual do go into the "reasonableness" equation, especially if police are aware of particular vulnerabilities that a person has.
The overall lesson is clear. Don't let Steve's macho talk about how feelings aren't part of the law fool you. In fact, feelings and normative judgments play a huge role in determining legal outcomes. On the other hand, that is not to say that legal proceedings are purely a function of what the judge or jury had for breakfast!
This is not true at all. A rational act could be considered "unreasonable" under the law. For example, it might be "rational" for a profit-maximizing company to take minimal safety precautions beyond that which protects their own physical capital, but nonetheless, such a company would be considered "unreasonable" (and thus liable) when its actions put third parties, customers, or employees at undue risk and thus caused injury.
"Reasonable" is not the same thing as merely rational.
Mr. Cramer, with all due respect, this is simply an asanine assumption. No one has ever seen me naked in a gym. My highschool gym had shower curtains. There are also millions who are homeschooled.
Further, this point is of little relevance. But even if it were relevant, it is based on plainly wrong assumption. If I were you, I would be more careful when making assumptions, so as to maintain your credibility in arguments that really matter.
I am so glad that you have direct access to the minds of other people! If only we could all read minds.
I agree with you re: house v. business. I was just pointing out that, in all of those things, highlighting "persons" wouldn't have been a bad idea. ;)
Re: "feelings." You made my point better than I, that the feelings of degradations are quite relevant to a "reasonableness" enquery.
My point about rational v. reasonable is simply that, if the Fourth Amendment were to be read as to allow any police act that is in their own self-interest (i.e. maximising safety of the officers, expediently searching an area), it would only protect against acts that are either irrelevant to or contrary to the purposes of the police force. I termed those acts to be irrational, but you might have a better word for them.
College girls don't get naked in dorm rooms in front of their roomies, AND women don't get naked in locker rooms? Are you trying to ruin ALL my fantasies? Next you'll tell me there aren't lesbian couples out there secretly yearning for a threesome with an out-of-shape geek who spends waaay too much time in front of a computer.
Mea cupla! Mea culpa! :)
Not being a lesbian, nor part of a lesbian couple, I can't attest to that last fantasy and will let it remain intact. :)
Utility data are also available as to who is billed, usually but not always a tenant if not the owner. One can compare who is billed with who owns a property and get a good idea as to whether the property is owner occupied.
One can also compare the names with suspects to see whether they are or were tenants. None of this is infallable, but it gives a good isea of the current status.
Some cities also reqire permitting of rental properties, that information is also readily available.
All this information is available very quickly by phone or in person if it is not online. It seems to me to be very careless to use 3 month old data that can be so readily updated. But then, I have been immersed in that data periodically for the past year.
Although the validity of the warrant has not been challenged, I would think those executing the warrant would want to know everything they could about what they might encounter. The prior approval of the warrant by a judge would be irrelevant to wanting the most complete informaion possible.
A giant straw-woman emerges to join the giant strawmen.
This wasn't a rape, it wasn't any type of sexual assault. If we call this a "sexual assault", the term is rendered meaningless.
This may be true in most cases, but a lot of people sell their house and rent it from the new owners for awhile.
Secondly, does everyone think it's a good use of police resources to "case the joint" for days or weeks before executing every warrant for fraud? In a world of scarce resources, what would we have to forego to do this?
Finally, I'm truly amazed that people have a problem with the officers' behavior once they entered the house. There were at least three people there, right? And you want them to devote an officer to hodling the (unconfirmed) naked and unarmed couple at gunpoint, while the other officer deals with the third (and possibly more) occupant and the search (if need be)?
no, they aren't. what is at issue is objective reasonableness. some people might find handcuffs ESPECIALLY degrading... so? doesn't make it illegal to use handcuffs. does it mean that cops can only handcuff those people who don't find handcuffs ESPECIALLY degrading? and how are they to know beforehand?
there is no way a society based on the rule of law can accomodate everybody's feelings, no matter how ridiculous they are (sorry for being so politically incorrect, but it's true), in assessing the reasonableness of govt. (or citizen) actions.
as soon as we replace the rule of law with sensitivity to feelings, we lose the rule of law.
i gotta agree with bob. calling this a "sexual assault" diminishes REAL victims, in the same way the duke case did. it reminds me of domestic violence advocates who claim that criticism = domestic "violence". iow, husband calls wife "fat". that's "domestic violence".
how degrading. :l
The courts can tighten rules and require an explicit checklist review, when time permits, before executing a warrant. I think that alone would have avoided this.
CA, and probably other states, has a fund which provides some payments to crime victims. There is no reason the same cannot be done when innocent people are bothered by poor or inept police practice or by a judge issuing warrants w/o much oversight.
Those acts have been crimes from time out of mind. They are ancient crimes, breaching the peace of the land.
If the police have a defense, they should present it to a jury. They may argue that they had a warrant "particularly describing ... the persons ... to be seized." That might be a defense.
As it stands, the Supreme Court has gutted the protections of the Fourth Amendment for innocent people. At the same time, that court has epeatedly eroded genuine political respect for the Constitution by reading the Fourth Amendment as a "get out of jail free" card for the more-or-less certainly guilty. This outcome is manifestly unreasonable.
What is this gung-ho expectation that the warrant had to be served even when faced with confusing facts? The disregard for reality is amazing. Given the volume of drug sales made everyday, even in the worst case of the couple making a sale undercovers, stopping one compared to the risk of assaulting innocent citizens is not a close call. The Supremes messed up by ignoring common sense, a sense they themselves recommended in a patent case no more than two weeks back. Well, common sense is good for invalidating patents but not favored for respecting civil rights.
whit,
You are confusing two things. You are assuming that if feelings are any part of the law, there must always be an individual case-by-case assessment. But this is incorrect.
Why are strip searches so sensitive? Obviously, because of the predicted emotional reactions of individuals. Why is mention made of whether a reasonable person would "feel free to leave" in evaluating whether they have been seized? Again, because how people feel, in general, is part of the calculus that results in objective standards.
Other examples of feelings playing a role in the law include the torts known as Negligent Infliction of Emotional Distress and the Intentional Infliction of Emotional Distress, respectively.
Finally, if you have ever observed the legal process in action, you would know that the feelings of judges, juries, and witnesses matter. Think about victim impact statements in making sentencing decisions. Or the juries emotional reaction to a criminal defendant's alleged actions. Or the judges emotional reaction to the perceived badness of a tort. Think about the decisions of criminal defendants in making themselves presentable and dressing their best. If feelings didn't matter in the legal process, dressing up for court and victim impact statements and all the rest would be entirely nonsensical.
You are certainly on to something when you assert that particularized emotional reactions are often not taken into consideration. That is, we do not consider the feelings of hypersensitive individuals, instead focusing on the feelings of hypothetical reasonable people. But nonetheless, even when they are considered in this more "objective" way, feelings are still part of the law.
Moreover, they didn't have any information about any "armed" suspect, just that one suspect "owned" a gun. Lots of Americans own guns, but that hardly means that every time a warrant is served, the cops should bust in, and hold everyone in the house at gun point, regardless of, e.g., their state of undress. Given the nonviolent nature of the crime involved, and the lack of emergency, why didn't the cops find some other way of serving the warrant before doing a "raid"?
I don't know that this should arise to the level of a constitutional violation, but these keystone cops should at least be reprimanded for insensitivity and incompetence.
First, naked or not, an officer would be required to cover them while your hypothetical other officer completed the search of the residence.
Secondly, one would presume that the proper number of deputies were dispatched based on what is expected at the scene. In this particular instance there were seven officers present. Assuming two deputies were covering the son (who was lying face down near the front door at the time) you have as many as five deputies (initially) standing around eyeballing the naked people.
It seems that the most vocal supporters of the police in this case haven't even taken a moment to read up on the facts beyond this blog's summary. It is surreal to read descriptions of fictional scenarios as justifications for the way this warrant was served and handled.
whit:
Reasonableness is not an objective value.
First, the opinion notes that the police had one of two addresses for the suspects. There is no indication that the suspect owned the Rettele home, just that that Rettele and Sadler bought it and moved in 3 months previously.
Second, this is a situation where the facts were based on a Motion for Summary Judgment--which means they are construed in the light most favorable to the non-moving party. From my own experience, I am guessing the "two minutes" was probably much less. Most people's concept of time is rather skewed--and when disturbing things are happening, time seems to crawl.
But, as Orin notes, to me the real issue here has to do with the validity of the warrant: probable cause to search means probable cause to believe that evidence of a crime is at the premises at the time the warrant is sought. Failing to verify whether the suspect resided or used the house for several weeks could mean either: (1) the police delayed executing the warrant for several weeks or (2) the magistrate slipped up in authorizing a warrant without requiring a showing that the evidence was still at the house the police searched, when the police sought the warrant.
You're assuming that my feelings would be unreasonable. If the police strip-searched me, under the theory of ensuring that I was not armed, is that any worse? Is it any better because the police do it and are supposedly professionals?
My favourite James Madison quote (Federalist No. 51): "f angels were to govern men, neither external nor internal controls on government would be necessary."
Why presume that the police were angels and not leering at the woman, and why assume that a reasonable woman would not have felt horribly violated by being forced to be naked at gunpoint in front of strange men?
So, if the challenge in court was about that, then yes, they should lose.
The problem is everything that happened BEFORE, and how ridiculously easy it is for the police to b authorized for that kind of search/secure/seizure.
This is a case of possible identity theft and/or fraud. One of the suspects owned a gun. Wow. That narrows it down.
ABSOLUTELY EVERY arrest ever anywhere is "potentially" violent! If that's all that's needed, then the exception swallows the rule completely.
In this case, it was unreasonable for the police to perform that kind of search AT ALL. As mentioned by a previous poster, there was no "emergency" situation here. Knock on the door. Someone answers - "Hello, we have a warrant to search this home. Please make sure everyone is dressed." Wait a few minutes. There is absolutely NO NEED to go in with guns drawn simply because "the suspect owns a gun"!!!!!
80 million Americans own guns - that's over 20% of the whole population. That is, you can expect 1 in 5 innocent people to own a gun, which is a legal and highly protected thing to do. If simply "owning a gun" subjects you to extremely different search procedures, that's a violation (see the rulings regarding VOTING, for instance, where the slightest impediment to voting is viewed as unConstitutional... note that gun ownership is protected just as explicitly - see case law where gun ownership, in and of itself, does NOT create "probably cause" EVER).
Actually, as in this case, the SUSPECT owning a gun subjected these people to additional procedures... Nice.
This case IS a travesty... but, sadly, I think the actual lawsuit (considering the grounds they chose to sue on) is probably correctly decided.
Now, what the police did in the bedroom was probably unnecessary, contrary to what Whit says. Unfortunately, police act in their own interest, not in the interest of anybody around them. The fact that someone can concoct a scenario where the people in bed _could_ pose a danger does not mean the police should assume that they're likely to pose a danger and treat them as if they're possible members of Al Qaeda. Too many cops wish they were Rambo.
That having been said, the Constitution is not a police procedure manual. Perhaps there's some state tort that's appropriate here, but that's not the same as a fourth amendment violation.
John Fleming:I was confused because, in fact, you are thinking incorrectly. A search is not a voluntary transaction between police and homeowner. Police are not required by the constitution to show you their warrant and allow you to verify that it's a legal warrant (how would you "verify" this anyway?) before you let them search. You don't have a choice as to whether to "acquiesce" to the warrant. And this isn't something the law has "become." A warrant has never been a voluntary "transaction."