View Full Version : The 4th Amendment is gone in CA.
Last week the 9th Circuit Court of Appeals denied an en banc rehearing of the case United States v. Lemus, which dealt with a warrantless police search of a suspect’s home after he was arrested outside of it. As a result of the 9th Circuit’s denial, the search will stand, which has left Chief Judge Alex Kozinski none too happy. In dissent, Kozinksi basically accused his colleagues of abandoning the Fourth Amendment:
This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun “in plain view”—stuck between two cushions of the living room couch—and we reward them by upholding the search.
Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith?…
The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.
Whatever may have been left of the Fourth Amendment after [United States v. Black] is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.
I highly suggest reading the entire dissenting opinion here: http://www.ca9.uscourts.gov/datastore/opinions/2010/02/18/08-50403.pdf
What do you expect? The liberals have been using the old adage, "living document" for a long time now. Things like this will only get worse, especially if two more justices step down:eek::mad: God forbid that happens.
What do you expect? The liberals have been using the old adage, "living document" for a long time now. Things like this will only get worse, especially if two more justices step down:eek::mad: God forbid that happens.
Call me crazy but I expect that the Constitution to be upheld by those who swore to do so.
The dissenting Judge, Alex Kozinski, gives an interesting interview here: http://reason.com/archives/2006/07/01/searching-for-alex-kozinski
woodandsteel
02-25-10, 21:40
Call me crazy but I expect that the Constitution to be upheld by those who swore to do so.
I think you just made Justice Sotomayor laugh.
But I agree with you on this.
FromMyColdDeadHand
02-25-10, 21:41
Just don't give the cops a reason to arrest you and they won't look thru your house :rolleyes:
Just don't give the cops a reason to arrest you and they won't look thru your house :rolleyes:
That simple, huh? Just live in fear of the police. :eek:
Just don't give the cops a reason to arrest you and they won't look thru your house :rolleyes:
Please clarify your statement, is this sarcasm?
lawusmc0844
02-25-10, 22:00
I got recruiting orders after deployment, and I HOPE I get stationed outside this failed state! What a joke...
Please clarify your statement, is this sarcasm?
Yeah, he's joking.
FromMyColdDeadHand
02-25-10, 22:13
Thanks Z, 2000 post and a :rolleyes: (sarcastic) at the end of the post and you guys still don't get that I'm a smart ass?
I feel sorry for Judge Kozinsk. To have to spend your days on that 9th with those legal mental midgets, it must maddening.
Thanks Z, 2000 post and a :rolleyes: (sarcastic) at the end of the post and you guys still don't get that I'm a smart ass?
I feel sorry for Judge Kozinsk. To have to spend your days on that 9th with those legal mental midgets, it must maddening.
Sorry, a little tarded right now... neeeeeed fooooood baaaaad! Damn pizza delivery guy needs to hurry up :D
Why don't they just secede already and get it over with. They're already the largest 3rd world socialist state we support. :(
Open door, protective sweep, weapon in plain view; I don't see a problem here. There is quite a bit of case law preceding this ruling, which this ruling follows right in line with. What does surprise me is that this is a rare 9th CCA ruling in favor of L.E.
Before you all start banging Kozinski's liberal whack-job drum, maybe you should read a bit more about him;
http://judgepedia.org/index.php/Alex_Kozinski
Open door, protective sweep, weapon in plain view; I don't see a problem here. There is quite a bit of case law preceding this ruling, which this ruling follows right in line with. What does surprise me is that this is a rare 9th CCA ruling in favor of L.E.
Before you all start banging Kozinski's liberal whack-job drum, maybe you should read a bit more about him;
http://judgepedia.org/index.php/Alex_Kozinski
Illegal search & seizure without a warrant to enter someone's home and you don't see a problem with that?
Is judgepedia as well researched and unbiasly written as wikipedia? :rolleyes:
It was not an illegal search and seizure. Protective sweeps have been okay for decades. Anything seen during a protective sweep falls under the plain view doctrine. This is nothing new (previous SCOTUS rulings) and the rest of Circuit agreed. Have you read Terry, Long, Chimel, or Buie?
The following link provides an very good legal explanation of protective sweeps.
http://le.alcoda.org/publications/point_of_view/files/sweeps.pdf
Some excerpts from his dissenting opinion.
This is an extraordinary case: Our court approves, without
blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion
and without exigency—in other words, with nothing at all to
support the entry except the curiosity police always have
about what they might find if they go rummaging around a
suspect’s home. Once inside, the police managed to turn up
a gun “in plain view”—stuck between two cushions of the living
room couch—and we reward them by upholding the
search.
Did I mention that this was an entry into somebody’s home,
the place where the protections of the Fourth Amendment are
supposedly at their zenith? The place where the “government
bears a heavy burden of demonstrating that exceptional circumstances
justif[y] departure from the warrant requirement.”
United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985).
The place where warrantless searches are deemed “presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586
(1980).
In reference to Buie.
The panel approves the entry of a team of police into
Lemus’s home by relying on Maryland v. Buie, 494 U.S. 325
(1990), but Buie is nowhere on point. Buie was a case where
the police were already legitimately inside the home when
they arrested the suspect. Id. at 328. The question was
whether they could look in the area immediately adjoining the
arrest where someone who could ambush them might be hiding.
Id. at 328, 330, 333. The Court recognized that police
inside an arrestee’s home are peculiarly vulnerable because
they are on the suspect’s turf—a place where someone dangerous
might be hiding. Id. at 333-36. The risk is present in
every case because a suspect’s home is inherently dangerous
for police who must enter to make an arrest. Id. But Buie says
nothing at all about police who conduct an arrest outside of
the home. It does not authorize police to enter a home for the
very purpose of conducting a search. That is the situation we
have here.
More relating to Buie.
The panel says the police could enter the home—with no
suspicion whatsoever—because Lemus’s living room “immediately adjoined” the place surrounding the arrest, Lemus, 582
F.3d at 964, but Buie only authorizes a suspicionless search
when the police make an “in-home arrest” (and then only for
a small area near the arrest, not a grand tour of the entire
apartment). 494 U.S. at 333-36. Here there was no in-home
arrest. How do we know this? Because the opinion says so:
After making the arrest, Longoria “sent” the patrol officers
“in” to Lemus’s apartment. Lemus, 582 F.3d at 960. Officers
who are already inside an apartment don’t need to be sent in.
The entire justification Buie gives for a warrantless search
is that officers must be able to protect themselves when they
perform an “in-home arrest.” Buie, 494 U.S. at 333-34 & n.1
When an arrest doesn’t take the police into a suspect’s home,
they aren’t forced into the “confined setting of unknown configuration”
that Buie worries about. Id. at 333. They’re outside,
just the same as in an “on-the-street or roadside
investigatory encounter.” Id. Yet “[e]ven in high crime areas,
where the possibility that any given individual is armed is significant,”
the Court still requires “reasonable, individualized
suspicion” before police can perform a search. Id. at 334 n.2.
Chimel is referenced here.
But what his
testimony makes clear is that the officers were not required
to go inside Lemus’s home to arrest him; they chose to go
inside, unnecessarily exposing themselves to the very danger
the Supreme Court sought to ameliorate in Buie. The district
court’s findings and Longoria’s affidavit confirm this. [ER
10-11, 14, 60]
Warrantless searches have “always been considered to be
a strictly limited right . . . grow[ing] out of the inherent necessities
of [certain] situation[s].” Chimel v. California, 395 U.S.
752, 759 (1969) (internal quotation marks omitted). The
“scope” of a warrantless search “must therefore be strictly
defined in terms of the justifying ‘exigent circumstances.’ ”
Coolidge v. New Hampshire, 403 U.S. 443, 478 (1971). The
Buie exception is particularly toxic to Fourth Amendment values
because it permits a search with zero individualized
suspicion—with nothing at all but the presumption that the
UNITED STATES v. LEMUS 2533
home is a dangerous place for the police. This is a fair presumption
if the police are already inside the home and
exposed to danger. But to use the exception as a wedge for
entering the home turns Buie inside out.
Or if you'd like you can read the whole thing here: http://www.ca9.uscourts.gov/datastore/opinions/2010/02/18/08-50403.pdf
The following link provides an very good legal explanation of protective sweeps.
http://le.alcoda.org/publications/point_of_view/files/sweeps.pdf
12 pages is gonna take a little while :)
I read Kozinski's dissenting opinion and I came away from it the same way the other (read, all of them) Judges in the 9th CCA did; Kozinski was wrong. SCOTUS settled this issue years ago, the 9th wasn't going to be re-inventing that wheel. Kozinski has been spanked by his peers recently and is about to be again when the Balco/CDT decision (Guess which Judge wrote most of it) goes back for an en banc re-hearing. Kozinski is being marginalized by the banc and like a petulant child, ostracised on the playgound, he is acting out.
The following link provides an very good legal explanation of protective sweeps.
http://le.alcoda.org/publications/point_of_view/files/sweeps.pdf
That was a really good read, thanks. I doubt we'll agree on everything but I've highlighted a few things I thought were relevent. If a person were being arrested INSIDE their house I would NOT see a problem with a cursory sweep for the safety of the officers. When a person is arrested OUTSIDE their house I have a huge problem with it, get a warrant. These quotes are from the link you posted.
The fourth type of protective search—the “protective sweep”—is different because it is a search for people.4 Specifically, it is a search for people who pose a threat to officers who are lawfully inside a residence or other place.5
Most sweeps are conducted just after officers have arrested a suspect inside his house.
Although the focus of this article is on sweeps that occur in conjunction with in-home arrests, they may sometimes be conducted when the arrest takes place outside the dwelling. In addition, sweeps are not limited to arrest situations.7 This subject will be covered later.
For example, in U.S. v. Curtis15 officers lawfully arrested Curtis and Melvin in the living room of their two-bedroom apartment. While two officers guarded the arrestees, two other officers “swept” a living room closet, the adjoining kitchen, and two bedrooms located “down the hall.” In the course of the sweep, they found drugs in the bedrooms. The court ruled the officers “could legitimately look in other spaces in the living room, in the open kitchen, and in the living room closet near the couch on which Melvin was sitting just prior to his arrest.” But the sweep of the bedrooms was unlawful because “[t]here was no justification for a sweep of such remote areas.”
Even if officers may lawfully sweep a certain room, they may inspect only those places and things in which a person might be hiding. For example, in U.S. v. Ford,16 an FBI agent arrested Ford in the hallway of his home as Ford was stepping from a bedroom. While other officers guarded Ford, the agent walked into the bedroom and saw a gun clip in plain view. He then lifted a mattress and found drugs and ammunition. After that, he lifted a window shade and found a handgun on the sill.
The court ruled the agent’s entry into the bedroom was lawful because “the arrest took place in the hallway, and the bedroom from which Ford emerged was immediately adjoining the hallway.” Thus, the gun clip was seized lawfully. But the drugs, ammunition, and handgun were ordered suppressed because, said the court, it was apparent that no one was hiding under the mattress or behind the window shade.
Still, because reasonable suspicion cannot exist without some factual basis, sweeps may not be conducted as a matter of routine or departmental policy. Thus, in ruling the sweep of the defendant’s home was unlawful, the court in U.S. v. Brown said, “[T]he protective sweep was not based upon any articulable suspicion, but rather was undertaken as a matter of standard ATF policy.”21
Nor may sweeps be conducted on grounds that officers had no information that a threat did not exist and, therefore, the existence of a threat could not be ruled out. In the words of the U.S. Court of Appeal, “‘No information’ cannot be an articulable basis for a sweep that requires information to justify it in the first place.”22 Thus, in U.S. v. Ford23 the court ruled a sweep was unjustified because the only reason given by the FBI agent for conducting it was, “I did not know if there was anybody back there. I wanted to make sure there was no one there to harm us.”
Likewise, a sweep is not permitted merely because there existed an abstract or theoretical possibility of a threat.24 Officers may, however, interpret the facts in light of their training and experience. As the Court of Appeal observed, “[T]he officer’s training and experience can be critical in translating observations into a reasonable conclusion.”25
Arrest outside, sweep inside
The courts have sometimes permitted sweeps when the suspect was arrested just outside the house, usually near a door that was open or ajar.46 I believe this was what happened in this case. 46 The logic behind these rulings is that when officers reasonably believe that a person inside a house poses a threat to them, that threat is not eliminated merely because there happens to be a door between them.47 In the words of the Court of Appeal:
The basic question is whether the limited inspection of the premises was reasonable in each case, that is, was it in fact a protective sweep based upon articulable and reasonable facts supporting a belief in possible danger to officers or others, or was it an otherwise impermissible warrantless search for evidence? This, rather than on which side of a door an arrest is effected, is the issue in these limited-inspection cases.48
Although an arrest outside may sometimes justify a protective sweep inside, the courts are not in agreement as to whether the greater intrusion of a warrantless entry requires probable cause or whether reasonable suspicion is sufficient.49 It is, however, clear that even where the reasonable suspicion standard has been applied, the courts tend to evaluate the circumstances more critically. As the court observed in Sharrar v. Felsing, “Predictably, where the courts have differed in permitting protective sweeps incident to arrests outside the home is on the quantity and quality of the articulable facts necessary to justify the sweep, rather than on the underlying standard.”50
PLAIN VIEW SEIZURES: If officers see evidence in plain view, they may seize it if they have probable cause that it is, in fact, evidence of a crime.56 As the court noted in U.S. v. Curtis, “[O]fficers engaged in a legitimate protective sweep need not close their eyes to what they see in plain view.”57
Have a good evening.
Remember, an officers actions must always be judged through his or her eyes, at the time of the event (per SCOTUS), thus bear in mind the following with this case,
The Police had a warrant to arrest LEMUS.
They were familiar with his criminal history and his involvement in drive-by shootings.
When they pulled in front of the house and called out to him, he moved toward the door of the apartment.
The door was open when they arrested him.
They did not know who or what was on the other side of that open door.
Think like the officers at that moment, what was LEMUS moving toward? An accomplice? A weapon? Per the above mentioned rulings, Terry, Long, Chimel, or Buie, they were entitled to a protective sweep of the other side of that open door, during that protective sweep they found a gun.
Read this, it will give a bit more insight,
http://caselaw.lp.findlaw.com/data2/circs/9th/0850403p.pdf
As you said, we may not always agree but we can be civil in our argument.
As you said, we may not always agree but we can be civil in our argument.
Absolutely. :) If we all got along all the time and agreed on everything life would be pretty boring. Besides, through our discussion I've learned some new things pertaining to the 4th Amendment that I was unaware of and I can use that knowledge in future debates.
I'll admit to doing a bit of Monday morning QB'ing with apparently not all of the facts that could be found. My intention wasn't to second guess the actions of the LEOs but to affirm the Constitutional rights that should be looked out for. If people lose their vigilence and don't exercise their rights then they will be eroded and eventually lost.
After reading the last link the officer's actions make a lot more sense. I hadn't realized the felon part and a few other things. Thanks for the info.
EDIT: I was also going off of the article I quoted in which a Judge was stating "facts" and I hadn't done any additional research.
Whenever I read a news article anymore my first question to myself is this, "what is their agenda?". Then I read the article and follow it with a bit of research. I have found that things are seldom as they are made out to be. The more dramatic the title and/or article the more sceptical I become. Did you notice that the original article left out the whole criminal history and optaining of the search warrant? To have done so would have destroyed Kozinski's little tirade.
Alaskapopo
02-26-10, 01:46
Illegal search & seizure without a warrant to enter someone's home and you don't see a problem with that?
Is judgepedia as well researched and unbiasly written as wikipedia? :rolleyes:
It is not an illegal search and the poster you quoted explained it. Protective sweep is a search warrant exemption as is plain view. The court agrees. Poor criminals I feel so sorry for them.:rolleyes: This is a win for law enforcement and I am happy about it.
Pat
Alpha Sierra
02-26-10, 05:20
Just don't give the cops a reason to arrest you and they won't look thru your house :rolleyes:
Really? :rolleyes: :rolleyes:
It is not an illegal search and the poster you quoted explained it. Protective sweep is a search warrant exemption as is plain view. The court agrees. Poor criminals I feel so sorry for them.:rolleyes: This is a win for law enforcement and I am happy about it.
Pat
Yeah, a win for "law enforcement" - aka the government - and a huge, massive stab wound to the Constitution - aka the people.
Exactly how far does a "protective sweep" go when the subject isn't even in the house? What if he starts running toward his neighbor's open door, and you know his neightbor is his buddy? Can you go rummaging through the neighbor's house, too ... can't be too careful, there might be an accomplice in there, or - gasp - a GUN that the guy now can't get to because he's been cuffed and stuffed already.
How about a car, owned by somebody else, that he runs toward, that's unlocked. Can you go searching through that, too, just because he made a move toward it? I mean, you never know. There might be a trunk monkey in there, ready to spring on you.
The Fourth Amendment died a long time ago. This decision is just an additional nail in the already well-sealed coffin.
Call me crazy but I expect that the Constitution to be upheld by those who swore to do so.
Me too, under the penalty of death!!! The higher their "office", the longer their incarceration should be including a death penalty for any elected or appointed official to willingly and knowingly dismantle the very heart of our Republic. These people must be held accountable!!!!
Belmont31R
02-26-10, 07:19
Seems like a stretch to arrest someone outside their home, and then search inside their home after the arrest. Unless you have good reason to believe there is another threat (read that as not MAYBE or there might be) then you have no business going in there.
But thats the way this works. Gov "stretches" their authority to work around the Constitution while making exercising your rights a legal minefield ready to trip people up, and throw them in jail. Gee a government court giving the government ever increasing authority.....whoda thunk it?
Seems like a stretch to arrest someone outside their home, and then search inside their home after the arrest. Unless you have good reason to believe there is another threat (read that as not MAYBE or there might be) then you have no business going in there.
But thats the way this works. Gov "stretches" their authority to work around the Constitution while making exercising your rights a legal minefield ready to trip people up, and throw them in jail. Gee a government court giving the government ever increasing authority.....whoda thunk it?
Yeah but it's ok because it's catching bad guys...:rolleyes:
Yeah, a win for "law enforcement" - aka the government - and a huge, massive stab wound to the Constitution - aka the people.
Exactly how far does a "protective sweep" go when the subject isn't even in the house? What if he starts running toward his neighbor's open door, and you know his neightbor is his buddy? Can you go rummaging through the neighbor's house, too ... can't be too careful, there might be an accomplice in there, or - gasp - a GUN that the guy now can't get to because he's been cuffed and stuffed already.
How about a car, owned by somebody else, that he runs toward, that's unlocked. Can you go searching through that, too, just because he made a move toward it? I mean, you never know. There might be a trunk monkey in there, ready to spring on you.
The Fourth Amendment died a long time ago. This decision is just an additional nail in the already well-sealed coffin.
It is so early in the morning but you just read my mind!!! Great response. While I respect human life, the Constitution is the entity that gives all of us the freedoms we enjoy.(however quickly they may be dwindling). Without the Constitution, we are all just slaves (LEO"s included). I perfectly understand "looking thru an LEO's eyes" as you can say I have had some L.E experience myself. After Operation Just Cause when Noriega was ousted from power, my unit, Lima co, 3rd Battalion 6th Marines was tasked with being "LEO's" with local Panamanian Defense Forces who switched sides. We patrolled some of the worst 3rd worlds ghetto's. That was just one experience I've had with a situation like that. Not to mention that my father is a veteran NYPD officer who served during the most violent period of that agencies existance. My Dad was in the 28 Pct which was known as the most dangerous house in the city. It is in Harlem. This was when Malcom X was still alive. These Black Panthers were at war with the Police. They even on a few occasions, threw hand grenades under Police vehicles. I could go on and on with the crap these poor LEO's had to deal with. You guys would be amazed at the level of danger and violence these brave LEO's dealt with and endured daily.
My point being, is that being an LEO, under no circumstances, makes it ok to water down or violate the Constitution. Live with it. You volunteered for it. Remember what the nazi's were told during the Nuremburg trials that "Just following orders" is no excuse. Todays LEO's face the same dilemna. Uphold the oath they swore to or blindly follow some liberal communist politicians orders. Those same liberal communist politicians who look to do away with that inconvenience to them also known as "The Constitution". Well, how do they get rid of it?? Not all at once. They chip away at it. A little here, a little there and before you know it, in 3 or 4 decades its just a mere shell of what it used to be. Well, this paticular case represents another "chip".
I am almost amazed that U.S Citizens would applaud their own rights being taken away from them. I say almost because that is the level this nation has been "dumbed down" to, so there really isn't anything that surprises me anymore. Just sad to see people cheering for their and their families own enslavement.
All I have to say is the brave men who served in the 28 Pct from 1965-1980 never said a peep about the horrendously tough job they went to everyday. Like hard men, they just went in and got the job done, day in and day out. They never looked for some "cheat sheet" with official sounding procedures like "protective sweep". I can guarantee they would have looked at each other with a confused "WTF" face and asked each other "Isn't that illegal?". LEO's are here to protect and serve the public, not the politicians. They are here to serve with dignity, not look to undermine the very Republic the swore to protect. I think every incoming LEO should have to know the Constitution and be tested on it to get on the job. How can one swear to protect something they know nothing of?? Then, uphold your oath and execute your duties with the utmost of honor and integrity.
FromMyColdDeadHand
02-26-10, 08:30
So, if I have a CCW or I have guns registered to me (in those states) and the police come to arrest me at my home, they can search my house because they already know I have a gun and my wife may want to do a Bonnie and Clyde show? I forgot what the legal standard is called, but it is even lower than probably cause when it comes to threshold for a search.
EDIT: Before you laugh or say BS, in the linked document above starting on page 5 they have:
"Relevant circumstances
In most cases, reasonable suspicion to conduct a sweep is based on circumstantial evidence. The following are examples."
Page 7: "RESIDENCE A SITE FOR GUNS OR VIOLENCE: The house was occupied or frequented by people who have been armed or violent."
Not armed and dangerous, armed OR violent.
Throw in 'sniper rifles' and is any house in 1000 yards fair game?
How does any arrest warrant not become a search warrant lite?
I understand how the police view this as a victory, but you have to understand that those of us who haven't broken the law view something like this. A warrant is a long way from a conviction and as we have seen here time and again there are errors in serving warrants.
EDIT: Oh, and no :rolleyes: on this post, so I mean this one.
So, if I have a CCW or I have guns registered to me (in those states) and the police come to arrest me at my home, they can search my house because they already know I have a gun and my wife may want to do a Bonnie and Clyde show? I forgot what the legal standard is called, but it is even lower than probably cause when it comes to threshold for a search.
EDIT: Before you laugh or say BS, in the linked document above starting on page 5 they have:
"Relevant circumstances
In most cases, reasonable suspicion to conduct a sweep is based on circumstantial evidence. The following are examples."
Page 7: "RESIDENCE A SITE FOR GUNS OR VIOLENCE: The house was occupied or frequented by people who have been armed or violent."
Not armed and dangerous, armed OR violent.
Throw in 'sniper rifles' and is any house in 1000 yards fair game?
How does any arrest warrant not become a search warrant lite?
I understand how the police view this as a victory, but you have to understand that those of us who haven't broken the law view something like this. A warrant is a long way from a conviction and as we have seen here time and again there are errors in serving warrants.
EDIT: Oh, and no :rolleyes: on this post, so I mean this one.
Excellent point.
On a side note...
The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.
Attributed to Thomas Jefferson.
And yeah, I know, TJ never walked a beat or had to collar an armed methhead.
I am almost amazed that U.S Citizens would applaud their own rights being taken away from them. I say almost because that is the level this nation has been "dumbed down" to, so there really isn't anything that surprises me anymore. Just sad to see people cheering for their and their families own enslavement.
I would seem that the majority of Americans, even as polled by liberal-leaning CNN, do believe that they government is too powerful and is a direct threat to their rights and freedoms:
http://politicalticker.blogs.cnn.com/2010/02/26/cnn-poll-majority-says-government-a-threat-to-citizens-rights/?fbid=6KuyjFzpjua
It does concern me that it's that close of a margin.
It is pretty clear that quite a few people are either too lazy to read the information and the history behind this event, or too ignorant of the workings of the court processes and their own Government to understand what happened. There is nothing new here, no new erosion of the Constitution.
In summary,
A gang-banger felon had a warrant issued for his arrest.
He disobeyed orders from LE not to move during the effect of that arrest and moved to the doorway of his apartment and was arrested in that open doorway.
A protective sweep of the interior of that apartment was conducted.
A pistol was identified.
A warrant was obtained.
Said pistol was subsequently seized pursuant to the execution of a lawfully obtained search warrant.
Gang-banger felon is charged federally as a felon in possession of a firearm.
Gang-banger felon's defense attorney files a standard appeal of conviction based on "unlawfully obtained evidence".
9th Circuit Court of Appeals denies appeal. http://caselaw.lp.findlaw.com/data2/circs/9th/0850403p.pdf (read this, all the Contitutional issues are covered inside)
Lawyer appeals fo an en banc ruling from the 9th CCA.
En banc Judges look at the above ruling and say, "no, nothing wrong here".
One judge, Judge Kazinsky, who has been in a lot of hot water lately and is very close to having a major ruling over-turned by an en banc ruling (spanked by his peers) files a dissenting opinion in a bid for attention and relevance.
Come on people, look at the information behind the news, don't get sucked in by the headlines, you're all smarter than that.
rifleman2000
02-26-10, 10:28
My point being, is that being an LEO, under no circumstances, makes it ok to water down or violate the Constitution. Live with it. You volunteered for it. Remember what the nazi's were told during the Nuremburg trials that "Just following orders" is no excuse. Todays LEO's face the same dilemna. Uphold the oath they swore to or blindly follow some liberal communist politicians orders. Those same liberal communist politicians who look to do away with that inconvenience to them also known as "The Constitution". Well, how do they get rid of it?? Not all at once. They chip away at it. A little here, a little there and before you know it, in 3 or 4 decades its just a mere shell of what it used to be. Well, this paticular case represents another "chip".
I am almost amazed that U.S Citizens would applaud their own rights being taken away from them. I say almost because that is the level this nation has been "dumbed down" to, so there really isn't anything that surprises me anymore. Just sad to see people cheering for their and their families own enslavement.
All I have to say is the brave men who served in the 28 Pct from 1965-1980 never said a peep about the horrendously tough job they went to everyday. Like hard men, they just went in and got the job done, day in and day out. They never looked for some "cheat sheet" with official sounding procedures like "protective sweep". I can guarantee they would have looked at each other with a confused "WTF" face and asked each other "Isn't that illegal?". LEO's are here to protect and serve the public, not the politicians. They are here to serve with dignity, not look to undermine the very Republic the swore to protect. I think every incoming LEO should have to know the Constitution and be tested on it to get on the job. How can one swear to protect something they know nothing of?? Then, uphold your oath and execute your duties with the utmost of honor and integrity.
This is an excellent and well written post.
None of us were there so it's difficult to say what exactly happened. But I've seen several situations where flimsy excuses are made by agressive officers to violate the 4th Amendment.
Quite frankly, if you arrest a person outside his home, don't smell a meth lab through his front door or have someone inside threatening to harm officers from inside, the correct answer is to shut the door before transporting the arrestee. It doesn't matter whether they're a dirtbag or not, they have the same Constitutional rights as every other citizen.
The Constitution is not a document that should have it's limits tested by officers. If what you want to do would only be considered legal after numerous court challenges and appeals, you're pushing the boundaries. Who cares if its technically legal, you should instead be looking to perform actions that are bomb proof. Instead of exploiting loopholes in the person's rights, how about working smarter and becoming a more proficient and professional officer?
Ask yourself this: If the roles were reversed and you were in cuffs on your front lawn, would you want police searching your home before taking you away? Walk a mile in another man's shoes before you piss on his rights. :(
It is pretty clear that quite a few people are either too lazy to read the information and the history behind this event, or too ignorant of the workings of the court processes and their own Government to understand what happened. There is nothing new here, no new erosion of the Constitution.
In summary,
A gang-banger felon had a warrant issued for his arrest.
He disobeyed orders from LE not to move during the effect of that arrest and moved to the doorway of his apartment and was arrested in that open doorway.
A protective sweep of the interior of that apartment was conducted.
A pistol was identified.
A warrant was obtained.
Said pistol was subsequently seized pursuant to the execution of a lawfully obtained search warrant.
So they conducted the search, found the gun, and then got the warrant?
I don't know - I only have a law degree, a state supreme court clerkship, and several years of trial practice, so maybe I'm just an ignoramus like you say - but it sounds like they may have done a few things in the wrong order here.
Like I said before, the majority may have pointed to lots of prior cases to support their ruling - in which case, those courts got it wrong, too.
I read the opinion, and it seems like the court's ruling was based on the disputed assertion that he had already entered the house at the time the arrest occurred, which they then used to justify the protective sweep. I am still incredibly baffled as to the justification to go searching into tiny crevices (like between mattresses) for weapons when the subject is already cuffed and out of action. A quick look around the rooms and into, say, a closet would seem fine to make sure nobody is hiding there.
The Constitution is not a document that should have it's limits tested by officers. If what you want to do would only be considered legal after numerous court challenges and appeals, you're pushing the boundaries. Who cares if its technically legal, you should instead be looking to perform actions that are bomb proof. Instead of exploiting loopholes in the person's rights, how about working smarter and becoming a more proficient and professional officer?
There does seem to be a prevalent attitude that "we can do it because the court said it's OK, so that's what we'll do." LEOs are agents of a separate branch of government, which has its own independent duty to assess and behave in accordance with the Constitution. What a court says you can get away with is not and should not be the final word.
FromMyColdDeadHand
02-26-10, 11:01
The officers continued to tell Lemus to come out, but
Lemus instead started to walk into the apartment. The officers
were there in an instant, taking hold of Lemus and handcuffing
him before he could fully enter the doorway and retreat
into his living room.
That has struck me funny a few times. The cops can cross the yard faster than he can cross a threshold, and in subduing him, they don't go inside the house. That, and even the cop that saw the gun thought he needed a warrant for the gun. The defense questioning that cop must have been an interesting part of the transcript to read from the case.
Hey, yeah the bad guy go to jail and stays. Everyone's happy.
Let's do the "I was cleaning and dry firing my gun" and the neighbor sees me and calls the cops about my machinegun. What from this ruling and the DA's guidelines doesn't allow them to do a warrantless search of my house in the name of officer safety?
John_Wayne777
02-26-10, 11:03
Personally I find the court system's opinions on the boundaries of the 4th amendment as disturbing at times as their opinions on the limitless powers granted to Congress by the interstate commerce clause. I think jurisprudence in both areas leaves much to be desired.
The problem we have with 4th cases is that they are brought largely on behalf of people whom most of us would be pointing a gun at were we unfortunate enough to interact with them in daily life. The dangers officers face in the course of their duties are real...but so are the dangers of ignoring process to obtain a desirable end result.
There does seem to be a prevalent attitude that "we can do it because the court said it's OK, so that's what we'll do.
A mindset I've found in every government organization I've ever looked at from the tiniest local government to state universities (who love to threaten ED seizures) all the way to the function of Congress. Government agencies, even those staffed by noble people with a noble purpose, have a tendency to interpret things in the vein most favorable to their purposes...which is why the founders tried to put insurmountable obstacles in the way of government. Even at it's most benevolent and altruistic government can trample the individual. It also follows that since men are not angels there is always the danger that the trampling may not be by accident.
It is pretty clear that quite a few people are either too lazy to read the information and the history behind this event, or too ignorant of the workings of the court processes and their own Government to understand what happened. There is nothing new here, no new erosion of the Constitution.
I still think we had a good discussion/debate last night on the merits of the article and links that were posted. However, I'm curious to know how biased Judge Bybee is towards the case since you've used his written opinion as the facts. Bear in mind I'm not challenging your credibility but I am questioning his opinion that's written like a fiction novel.
A gang-banger felon had a warrant issued for his arrest.
He disobeyed orders from LE not to move during the effect of that arrest and moved to the doorway of his apartment and was arrested in that open doorway.
A protective sweep of the interior of that apartment was conducted.
A pistol was identified.
The pistol was identified after the officer moved a couch cushion. In the article on police sweeps that you linked to, specifically US VS Ford, the evidence was dismissed due to the fact that no person could possibly be hiding in the areas that were searched without a warrant, the same holds true here.
If the pistol were in plain sight then why would anything need to be moved? From the Bybee opinion "He sent Gerardo and Orozco in. They scanned the living room, and didn’t see anyone. Just a couch and a TV. Checked the bedroom and bathroom too. Negative. Lemus was alone." and the search/sweep should've ended there. After that fact Diaz was snooping around in the living room and called in Longoria who moved the couch cushion to determine if in fact there was a pistol. This was out of the scope of a protective sweep after everything I've read.
My opinion from everything that I've read is the police were on a fishing expedition due to the man being a felon and only after finding something they decided to get a search warrant.
I have no idea why the guy's a felon and being one doesn't automatically make someone violent. I know it's the law but personally I don't feel non-violent felon offenders should have their right to protect themselves and their families removed. We currently have ex-felons serving in our military who are defending our country everyday with weapon in hand and this isn't seen as a problem by our government. When it serves their purposes they obviously don't have a problem with an ex-felon being armed.
Respectfully,
Irish~
Belmont31R
02-26-10, 11:09
It is pretty clear that quite a few people are either too lazy to read the information and the history behind this event, or too ignorant of the workings of the court processes and their own Government to understand what happened. There is nothing new here, no new erosion of the Constitution.
In summary,
A gang-banger felon had a warrant issued for his arrest.
He disobeyed orders from LE not to move during the effect of that arrest and moved to the doorway of his apartment and was arrested in that open doorway.
A protective sweep of the interior of that apartment was conducted.
A pistol was identified.
A warrant was obtained.
Said pistol was subsequently seized pursuant to the execution of a lawfully obtained search warrant.
Gang-banger felon is charged federally as a felon in possession of a firearm.
Gang-banger felon's defense attorney files a standard appeal of conviction based on "unlawfully obtained evidence".
9th Circuit Court of Appeals denies appeal. http://caselaw.lp.findlaw.com/data2/circs/9th/0850403p.pdf (read this, all the Contitutional issues are covered inside)
Lawyer appeals fo an en banc ruling from the 9th CCA.
En banc Judges look at the above ruling and say, "no, nothing wrong here".
One judge, Judge Kazinsky, who has been in a lot of hot water lately and is very close to having a major ruling over-turned by an en banc ruling (spanked by his peers) files a dissenting opinion in a bid for attention and relevance.
Come on people, look at the information behind the news, don't get sucked in by the headlines, you're all smarter than that.
Thats where I take issue.
He was arrested, and unless there is a real reason to believe there is another threat (again not a 'there might be') then go ahead. Doing just as a matter of automatic procedure is not kosher.
The problem we have with 4th cases is that they are brought largely on behalf of people whom most of us would be pointing a gun at were we unfortunate enough to interact with them in daily life. The dangers officers face in the course of their duties are real...but so are the dangers of ignoring process to obtain a desirable end result.
Very true and very well said JW.
It also follows that since men are not angels there is always the danger that the trampling may not be by accident.
People go bad, people **** up knowingly and unknowingly. The true problem arrives when the actions of those people are upheld and validated by another branch (usually judicial). It not only lets that person off the hook, it sends a message to everyone else that it's OK to do it. And so they do...
Belmont31R
02-26-10, 11:17
I should also point out the 9th circuit is not exactly the bastion of taking the side of personal rights.
They have ruled consistently with the statist government over the rights of individuals including IIRC the gun case the NRA filed to try to get incorporation of the 2nd. They are quite a liberal court.
They have ruled consistently with the statist government over the rights of individuals including IIRC the gun case the NRA filed to try to get incorporation of the 2nd. They are quite a liberal court.
I believe the 9th actually ruled that the Second Amendment does apply to localities, but on the facts of that particular case the court held that the regulation of gun shows by a locality was permissible and not violative of the right.
Personally I find the court system's opinions on the boundaries of the 4th amendment as disturbing at times as their opinions on the limitless powers granted to Congress by the interstate commerce clause. I think jurisprudence in both areas leaves much to be desired.
The problem we have with 4th cases is that they are brought largely on behalf of people whom most of us would be pointing a gun at were we unfortunate enough to interact with them in daily life. The dangers officers face in the course of their duties are real...but so are the dangers of ignoring process to obtain a desirable end result.
A mindset I've found in every government organization I've ever looked at from the tiniest local government to state universities (who love to threaten ED seizures) all the way to the function of Congress. Government agencies, even those staffed by noble people with a noble purpose, have a tendency to interpret things in the vein most favorable to their purposes...which is why the founders tried to put insurmountable obstacles in the way of government. Even at it's most benevolent and altruistic government can trample the individual. It also follows that since men are not angels there is always the danger that the trampling may not be by accident.
As a regulatory inspetcor for a federal agency, I've seen this first hand. I've had to caution my boss on a few occasions because of this mindset. Fortunately he's not a vindictive person, just misguided on occasion. :)
Alaskapopo
02-26-10, 13:15
Yeah, a win for "law enforcement" - aka the government - and a huge, massive stab wound to the Constitution - aka the people.
Exactly how far does a "protective sweep" go when the subject isn't even in the house? What if he starts running toward his neighbor's open door, and you know his neightbor is his buddy? Can you go rummaging through the neighbor's house, too ... can't be too careful, there might be an accomplice in there, or - gasp - a GUN that the guy now can't get to because he's been cuffed and stuffed already.
How about a car, owned by somebody else, that he runs toward, that's unlocked. Can you go searching through that, too, just because he made a move toward it? I mean, you never know. There might be a trunk monkey in there, ready to spring on you.
The Fourth Amendment died a long time ago. This decision is just an additional nail in the already well-sealed coffin.
No a win for the good guys and a loss for the bad guys.(criminals) Honest citizens will not be hurt by this court decision that simply affirms already present search warrant exemptions.
Pat
Honest citizens will not be hurt by this court decision that simply affirms already present search warrant exemptions.
Pat
A slippery slope...
Alaskapopo
02-26-10, 13:43
A slippery slope...
Frankly nothing really changed. The court has allowed protective sweeps for a long time now when a suspect is arrested by his front door when its open. The sweep is to look for people or weapons that could hurt the officers in the near proximity. That is what happened here.
Pat
Frankly nothing really changed. The court has allowed protective sweeps for a long time now when a suspect is arrested by his front door when its open. The sweep is to look for people or weapons that could hurt the officers in the near proximity. That is what happened here.
Pat
All the other court opinions that have been listed here have been very specific in the fact that the only thing the sweep is to be conducted for is the search of people who are possible threats, weapons do not play a part in it.
Stay warm up there,
Irish~
Alaskapopo
02-26-10, 14:02
All the other court opinions that have been listed here have been very specific in the fact that the only thing the sweep is to be conducted for is the search of people who are possible threats, weapons do not play a part in it.
Stay warm up there,
Irish~
With respect that is not correct. You are allowed to search the area for weapons that may be available to the person whom you are arresting or for weapons that someone else access in the room should someone show up to your crime scene that is sympathetic to the defendant. If the house door was closed and locked this would be a different story. The protective sweep is cursory in nature. But finding a pistol stuffed between two couch cushions is not outside that scope in my opinion and the court agreed.
Pat
http://4.bp.blogspot.com/_8sMvfIO4vqg/RzZXU2b0BWI/AAAAAAAAACA/y4BGble6akM/s320/HnS+001+MaliUnderCouch.jpg
All the other court opinions that have been listed here have been very specific in the fact that the only thing the sweep is to be conducted for is the search of people who are possible threats, weapons do not play a part in it.
But they've also allowed that weapons or contraband found in places where a person could hide might be admissible, although a warrant based on the findings is preferable.
Put into a smaller perspective, If I pull over a car with a suspected bank robber inside, I can make the stop with other officers, order the suspect and all other occupants back to my vehicle, and detain them there. I can then move forward and make a sweep of the car, which includes popping the trunk, since someone can hide there. If I find a kilo in there, I can probably seize it, but it would be a lot cleaner to just seal the car and get the warrant once I found it. Carroll doctrine makes this a less than perfect translation, but the principle is that same that if I am HONESTLY searching for someONE, and find someTHING, then its still OK.
In order for the search to be valid, the officers have to show that the discovery was accidental; i.e. looking for people where a person could hide. If you don't believe that a person can hide in a couch, you're sorely mistaken.
Why am I suddenly reminded of the Army UCP themed couch photo?
John_Wayne777
02-26-10, 14:20
http://4.bp.blogspot.com/_8sMvfIO4vqg/RzZXU2b0BWI/AAAAAAAAACA/y4BGble6akM/s320/HnS+001+MaliUnderCouch.jpg
Wait, don't tell me...there's a dude in multicam hiding on that couch, right?
Wait, don't tell me...there's a dude in multicam hiding on that couch, right?
Well you would not know, 100% for sure, unless you look... People can secret themselves in some very small and odd places...
B
With respect that is not correct. You are allowed to search the area for weapons that may be available to the person whom you are arresting or for weapons that someone else access in the room should someone show up to your crime scene that is sympathetic to the defendant. If the house door was closed and locked this would be a different story. The protective sweep is cursory in nature. But finding a pistol stuffed between two couch cushions is not outside that scope in my opinion and the court agreed.
Pat
So you're saying it's ok to conduct a warrantless search of an apparently unoccupied dwelling after a suspect is cuffed outside and poses no further threat on the basis that there might be a weapon in there that he might gain access to, or a person not currently at the scene who might show up and gain access to inside?
Well I can't imagine why anyone would object to that! :rolleyes:
If you have no articulable suspicion that someone is inside preparing to attack you, what would be so dangerous about you locking the door and walking away? Otherwise, your argument is suppposing that every home you go to should be searched because it might hold a danger to you. That guy you just cuffed up is no longer a threat, otherwise you'd be just fine tasing him in cuffs. After all, he might get loose.
This is the slippery slope we're discussing. If you have a warrant to arrest a person, no problem. But using that arrest warrant as an excuse to search a home without a warrant is unacceptable. Fabricating some impending doom if you don't search the home is also unacceptable. I don't care how many judges say it's ok because it's a bad guys house, it's wrong.
We all know officers who use these marginal court decisions as the basis for a fishing expedition. You know, the same officers who damage the agency's credibility with their community? all I'm saying is, be a better officer. Don't go for the cheap way out, do it the right way instead. After all, two wrongs don't make a right. :(
John_Wayne777
02-26-10, 15:02
Well you would not know, 100% for sure, unless you look... People can secret themselves in some very small and odd places...
B
No doubt...but I was thinking more like this:
http://www.allmilitary.com/i/Image/camo_couch_490.jpg
FromMyColdDeadHand
02-26-10, 15:09
http://i286.photobucket.com/albums/ll109/KrautKommando/MidgetwithKnife.jpg
They can be anywhere!
Otherwise, your argument is suppposing that every home you go to should be searched because it might hold a danger to you.
And yours is supposing that these officers, and others, are simply using this as a fishing license. I have pride in myself and my agency for this not being the case. I know of no agencies in my area for which it is.
This is the slippery slope we're discussing.
Yes, and it goes both ways. The back side of this hill is the one where officers can't search suspects, or their immediate areas of control, or have their powers to frisk severely curtailed at the cost of their safety. We saw this earlier last year with AZ vs Gant. We lost the ability to automatically search a car (minus the trunk) from which a person was physically arrested. What's next? No frisking without consent? No searching suspects incident to arrest?
I would agree with you that its a fine line, and that the good officers, which I strive to be, have to encourage the newer ones, or less keen minded, to follow a better path. However, this is my job, as is the case for Buck, KMRTNSN, Pat, and countless others on this forum. Its easy for some to speculate on these officers' intentions, and at some point you have to either show that they used the tool inappropriately or you have to go with what the known facts are. Kind of a "fish or cut bait" thing.
Alaskapopo
02-26-10, 15:53
So you're saying it's ok to conduct a warrantless search of an apparently unoccupied dwelling after a suspect is cuffed outside and poses no further threat on the basis that there might be a weapon in there that he might gain access to, or a person not currently at the scene who might show up and gain access to inside?
Well I can't imagine why anyone would object to that! :rolleyes:
If you have no articulable suspicion that someone is inside preparing to attack you, what would be so dangerous about you locking the door and walking away? Otherwise, your argument is suppposing that every home you go to should be searched because it might hold a danger to you. That guy you just cuffed up is no longer a threat, otherwise you'd be just fine tasing him in cuffs. After all, he might get loose.
This is the slippery slope we're discussing. If you have a warrant to arrest a person, no problem. But using that arrest warrant as an excuse to search a home without a warrant is unacceptable. Fabricating some impending doom if you don't search the home is also unacceptable. I don't care how many judges say it's ok because it's a bad guys house, it's wrong.
We all know officers who use these marginal court decisions as the basis for a fishing expedition. You know, the same officers who damage the agency's credibility with their community? all I'm saying is, be a better officer. Don't go for the cheap way out, do it the right way instead. After all, two wrongs don't make a right. :(
Yes we can search a home in a protective sweep for weapons and people when the front door is open and unlocked and the suspect was arrested by the front door. The court agrees.
A good officer knows exactly where the line is between an illegal search and a legal one and he pushes right up to that line without going over it. That is what these officers did and the court vindicated them. No rights were violated. By your standards a good officer is an ineffective one.
Yes we can search a home in a protective sweep for weapons and people when the front door is open and unlocked and the suspect was arrested by the front door. The court agrees.
A good officer knows exactly where the line is between an illegal search and a legal one and he pushes right up to that line without going over it. That is what these officers did and the court vindicated them. No rights were violated. By your standards a good officer is an ineffective one.
I suppose you agree with the court's decision in Arizona v. Gant, then?
FromMyColdDeadHand
02-26-10, 16:11
Yes, and it goes both ways. The back side of this hill is the one where officers can't search suspects, or their immediate areas of control, or have their powers to frisk severely curtailed at the cost of their safety.
So as bad guys get more violent or devious in their means of attack, we will see more of our rights winnowed down in the name of officer safety? I'm all for everyone coming home safely everynight, but if 'officer safety' is the legal threshold now for police actions, where do you stop?
And yours is supposing that these officers, and others, are simply using this as a fishing license. I have pride in myself and my agency for this not being the case. I know of no agencies in my area for which it is.
Yes, and it goes both ways. The back side of this hill is the one where officers can't search suspects, or their immediate areas of control, or have their powers to frisk severely curtailed at the cost of their safety. We saw this earlier last year with AZ vs Gant. We lost the ability to automatically search a car (minus the trunk) from which a person was physically arrested. What's next? No frisking without consent? No searching suspects incident to arrest?
I would agree with you that its a fine line, and that the good officers, which I strive to be, have to encourage the newer ones, or less keen minded, to follow a better path. However, this is my job, as is the case for Buck, KMRTNSN, Pat, and countless others on this forum. Its easy for some to speculate on these officers' intentions, and at some point you have to either show that they used the tool inappropriately or you have to go with what the known facts are. Kind of a "fish or cut bait" thing.
I'm in no way casting aspersions on any officer on this board. I commend you for your sense of pride in your ethics and those of your department. But surely you would agree that the reason we have so many rules of enagement and scrutiny placed on our actions is due to past and present abuses by individual officers, and in rare cases systemic rights violations by entire agencies.
The AZ vs. Gant decision makes it more difficult to secure evidence, but in no way makes it improbable, much less impossible to do so. i remember well the doom and gloom running through the dept. when this came out, yet somehow business goes on as it always has. The opposite side of the slope will never get so steep that officers can't search a suspect who has been detained for officer safety. This has been ruled on enough that there's a strong foundational precedence already set. "Immediate areas of control" is a different subject. If you have a suspect detained and cuffed at the front of your patrol car, are areas of their vehicle which could not reasonably conceal a person really a threat to officer safety?
Yes, and it goes both ways. The back side of this hill is the one where officers can't search suspects, or their immediate areas of control, or have their powers to frisk severely curtailed at the cost of their safety.
And yet a third side of the slope is the one where LE pushes the envelope at every possible point when dealing with "bad people," the courts gradually cave away, and you think you are "winning" because you can now look here, ask there, and so forth. In fact, all you are doing is pissing off and eroding the trust that the law abiding public once had in you and thus losing the broader war, not to mention making your own jobs harder because your motives are now suspect and nobody wants to deal with you.
When the courts say that you're allowed to lie and use ruses on people (suspects or otherwise), how do you think people are going to react when you start asking questions? Especially when it is often a crime to lie to LE if it can be cast as obstruction? No matter what you say or do, I will never know if you're being straight with me or whether you'll misinterpret or twist something I say - so I'm just not going to talk to you or answer the door when you knock on it. That's the much safer policy.
When the courts give you a "plain view" exception, that again means that I'm not even going to open my door to talk to you. I have nothing illegal, but if I have a SBR or something like it in the corner, I can't take the chance that an uneducated local LEO is going to make a huge stink and scene about it.
I could go on and on about why the more you're allowed to do to the public, the less we're going to trust and help you - but I doubt it would change the minds of anybody.
Alaskapopo
02-26-10, 16:32
And yet a third side of the slope is the one where LE pushes the envelope at every possible point when dealing with "bad people," the courts gradually cave away, and you think you are "winning" because you can now look here, ask there, and so forth. In fact, all you are doing is pissing off and eroding the trust that the law abiding public once had in you and thus losing the broader war, not to mention making your own jobs harder because your motives are now suspect and nobody wants to deal with you.
When the courts say that you're allowed to lie and use ruses on people (suspects or otherwise), how do you think people are going to react when you start asking questions? No matter what you say or do, I will never know if you're being straight with me - so I'm just not going to talk to you or answer the door when you knock on it. That's the much safer policy.
When the courts give you a "plain view" exception, that again means that I'm not even going to open my door to talk to you. I have nothing illegal, but if I have a SBR or something like it in the corner, I can't take the chance that an uneducated local LEO is going to make a huge stink and scene about it.
I could go on and on about why the more you're allowed to do to the public, the less we're going to trust and help you - but I doubt it would change the minds of anybody.
Yes we can lie to suspects. How in the hell do you think an under cover operation would work without this ability. Sounds like you are very anti government to the point of wanting to hamstring officers ability to do their job. Thankfully the court does not agree with you. As far as not answering the door and not talking to us. That is good advice for the guilty. The innocent have nothing to fear from the police.
It is ironic that attorneys who are known for being in a dishonest profession are criticizing the police for lying in their job. I have lost count on how many times I have seen attorneys lie.
Yes we can lie to suspects. How in the hell do you think an under cover operation would work without this ability.
The ability to lie to suspects isn't limited to undercover work (or to "suspects," either).
You can lie to me. I get in trouble if I lie to you. When the rules are that lopsided and I have nothing to gain by playing, I don't play the game. Pretty easy analysis.
Sounds like you are very anti government to the point of wanting to hamstring officers ability to do their job. Thankfully the court does not agree with you.
Pat
Hamstringing the government is sort of the whole point of the Bill or Rights, Pat. If that makes me "anti-government" - and I don't think it does - then I'll wear that label proudly.
It is ironic that attorneys who are known for being in a dishonest profession are criticizing the police for lying in their job. I have lost count on how many times I have seen attorneys lie.
I'm just going to quote that addition of yours, Pat, so that everyone here can see who is talking law and policy without getting personal, and who is crapping on entire lines of work. Thanks for making your agenda and motives clear.
IMO, it would seem some believe the end justifies the means, which if is precedent, is more dangerous than any criminal I may come across.
Alaskapopo
02-26-10, 16:48
I'm just going to quote that addition of yours, Pat, so that everyone here can see who is talking law and policy without getting personal, and who is crapping on entire lines of work. Thanks for making your agenda and motives clear.
Your posts appear to me that you have an agenda and are very anti law enforcement. You have crapped on my line of work all through out this thread. Implying we are liars who abuse peoples rights.
http://i59.photobucket.com/albums/g299/355sigfan/Humor/potcallingkettleblack.jpg
Your posts appear to me that you have an agenda and are very anti law enforcement.
Not personal just an observation.
So now I'm not only "anti-government," but I'm "anti-law enforcement" as well because I don't agree with you or with a particular line of cases that happen to make your life as a cop easier at the expense of an enumerated, fundamental right?
I guess it's easier to just call me names and try to paint me as some sort of extremist than it is to think about these things, huh?
Alaskapopo
02-26-10, 16:50
I suppose you agree with the court's decision in Arizona v. Gant, then?
Gant was arrested for driving without a license. A search incident to an arrest is supposed to be for evidence of the crime the suspect was arrested for. So yes I have no problem with the courts ruling. If I suspect something I can get a warrant. Frankly I have applied for a lot of warrants in my 10 years and only been denied twice.
Pat
Alaskapopo
02-26-10, 16:53
The ability to lie to suspects isn't limited to undercover work (or to "suspects," either).
You can lie to me. I get in trouble if I lie to you. When the rules are that lopsided and I have nothing to gain by playing, I don't play the game. Pretty easy analysis.
Hamstringing the government is sort of the whole point of the Bill or Rights, Pat. If that makes me "anti-government" - and I don't think it does - then I'll wear that label proudly.
While I agree the bill of rights is there to limit government powers. What I am talking about is limiting our ability to work with in that framework. You seem to think that the police in this case violated the 4th amendment. I do not and neither does the court thankfully.
I don't want to live in a world where the police can search and seize without cause. But I also don't want to live in a world where we are powerless to do our job. There is a balance and the court determines that balance.
Pat
I don't want to live in a world where the police can search and seize without cause. But I also don't want to live in a world where we are powerless to do our job. There is a balance and the court determines that balance.
Pat
And I disagree that the court got it right (legally and based on disputed facts that should have been construed in favor of the accused, as our system provides) and I see a lot of downsides, aside from constitutional formalities, to allowing many of the things that you seem to think are just fine and dandy. But apparently that makes me "anti-government" and "anti-LE," so I guess I'll need to get back to my isolated compound. I think I hear the helicopters coming for me...
While it's obviously stupid to paint all attorneys with a broad brush just as it's stupid to paint all LEOs with one, three things which weighed heavily on my early legal career:
An Advanced Criminal Procedure professor in law school who was also a Federal Defender Service senior attorney repeatedly explained to us that "cops lie all the time, so why should I or my clients have to tell the truth?" and "the government has all the money, all the people, all the resources... it's a game and all the advantages are on their side so I do what I have to do to win." I complained to the school about this guy who was clearly teaching us to ignore professional ethics standards, but he was back next semester still teaching.
I was sitting second chair at an AWIK (aka attempted murder) case when the defense attorney told a judge that I hadn't delivered some pre-trial documents (Brady info, I think)... even though I had put those documents in her hand, in person, days earlier. The judge simply took her word for it and bam, our case got sent into a tailspin.
There was a public defender in DC who used to go to prosecution witnesses' homes pretending to be a police officer to question them. We caught him many times but the US Attorney's Office in DC (run by Eric Holder at the time, btw) refused to prosecute because it was deemed "political" and the office didn't want to appear to be picking on defense attorneys. :rolleyes:
There are some very good, very ethical defense attorneys out there, but the other 95% unfairly skew public opinion. :cool:
Yes we can lie to suspects. How in the hell do you think an under cover operation would work without this ability. Sounds like you are very anti government to the point of wanting to hamstring officers ability to do their job. Thankfully the court does not agree with you. As far as not answering the door and not talking to us. That is good advice for the guilty. The innocent have nothing to fear from the police.It is ironic that attorneys who are known for being in a dishonest profession are criticizing the police for lying in their job. I have lost count on how many times I have seen attorneys lie.
HAHAHA! You just lost all credibility right there. That's what many officer say, yet there are plenty of people who've been wrongly convicted that know this is a lie. When you have all the power and your "subjects" have none, the disparity is a perfect reason for distrust. The same goes for making anti-gun laws, then exempting government agents from the same requirements.
As a federal regulatory inspector, I have complete control over how easy or how hard I make my own job. I could walk around like my shit doesn't stink and hang paper on every poor slob who ever makes a mistake, and I'd be well within the scope of my authority. But no one would trust me and they'd all be watching me like a hawk in the hopes I'd step over that line I was walking like a tightrope.
Instead I have regulated entities who are willing to voluntarily disclose violations to me. They know where I stand and my main focus is to correct the problems before they result in dangerous incidents.
You may push right up to that line with your "subjects", but that doesn't gain you any credibility in the community. You may be allowed to search that home, but there's nothing written in stone that says you shall do so.
I think someone asked whether you agree with the AZ vs. Gant decision. I'd certainly like to hear your reply.
Alaskapopo
02-26-10, 17:05
HAHAHA! You just lost all credibility right there. That's what many officer say, yet there are plenty of people who've been wrongly convicted that know this is a lie. When you have all the power and your "subjects" have none, the disparity is a perfect reason for distrust. The same goes for making anti-gun laws, then exempting government agents from the same requirements.
As a federal regulatory inspector, I have complete control over how easy or how hard I make my own job. I could walk around like my shit doesn't stink and hang paper on every poor slob who ever makes a mistake, and I'd be well within the scope of my authority. But no one would trust me and they'd all be watching me like a hawk in the hopes I'd step over that line I was walking like a tightrope.
Instead I have regulated entities who are willing to voluntarily disclose violations to me. They know where I stand and my main focus is to correct the problems before they result in dangerous incidents.
You may push right up to that line with your "subjects", but that doesn't gain you any credibility in the community. You may be allowed to search that home, but there's nothing written in stone that says you shall do so.
I think someone asked whether you agree with the AZ vs. Gant decision. I'd certainly like to hear your reply.
I am not going to lose any sleep over losing credibility with you. I already replied to the AZ vs Gant. Please go back and read before accusing me of not responding. My comment about innocent people having nothing to fear was a general statement. Yes their have been rare exceptions where innocent people have gone to jail and even killed. But those numbers are small percentage wise and getting smaller as new technology like DNA gets better and better.
Also your job as a regulatory inspector is a far cry from what we do in law enforcement. By and large I would assume you are dealing with honest people who make mistakes. By and large as cops we are dealing with dishonest people with little to no moral code. (ie criminals)
Pat
Alaskapopo
02-26-10, 17:07
And I disagree that the court got it right (legally and based on disputed facts that should have been construed in favor of the accused, as our system provides) and I see a lot of downsides, aside from constitutional formalities, to allowing many of the things that you seem to think are just fine and dandy. But apparently that makes me "anti-government" and "anti-LE," so I guess I'll need to get back to my isolated compound. I think I hear the helicopters coming for me...
I don't mind you disagreeing. But implying that you won't talk to police because we lie and violate peoples rights is a bit offensive.
Pat
I don't mind you disagreeing. But implying that you won't talk to police because we lie and violate peoples rights is a bit offensive.
Pat
I know that isn't the norm - the problem is that LE is allowed to lie in the first place. Given that mere possibility, I have no way of knowing who I'm dealing with or what his motive might be if I get questioned by a LEO. He could be a straight shooter or he could think I'm a suspect and be spinning a web for me, and in either case I gain nothing by talking to him in most cases. I also run the risk of charges if I, in his opinion, lie or misconstrue something.
So it's not that I think LEOs lie or cross the line frequently, it's that I can't reliably sort out what's going on and so there's no point in even participating. It really is an unfortunate policy because I do understand how hard it can be to prepare a case when you don't know what a witness is going to say even if you can subpoena him to appear. But such is the law right now.
I am not going to lose any sleep over losing credibility with you. I already replied to the AZ vs Gant. Please go back and read before accusing me of not responding. My comment about innocent people having nothing to fear was a general statement. Yes their have been rare exceptions where innocent people have gone to jail and even killed. But those numbers are small percentage wise and getting smaller as new technology like DNA gets better and better.
Pat
You replied as I was typing my post, so thanks for responding there.
As for the rest of your statement, let's examine it. You made a "general" statement that law abiding people have nothing to fear. Now you are recanting a portion of that statement and saying that the effect is minimal (a great comfort to those that it's happened to, I'm sure). You just lost your credibility even moreso because I can no longer take you at your word. Now, If I were interviewing you pursuant to an investigation and you provided me with false information in such a fashion, I would then have possible grounds to pursue a violation of 18 USC § 1001. You know, the one they got Martha Stewart on?
And that's exactly how easy it is. I catch you providing false information and your future is in my hands. Now, do you want me to be a reasonable investigator and work cooperatively with you? Or would you rather I be a hard dick and nail you to a cross?
I'm not giving you the 3rd degree here, I'm just playing Devil's Advocate and asking you to examine your position from all sides. Some of the best LEO's and investigators I've worked with have remembered that they're citizens of the United States first, and LEO's second. If you only view it from the LEO perspective, someday somewhere, you're going to do a decent person wrong just because you have the ability to do so. JMO, YMMV
Alaskapopo
02-26-10, 17:20
I know that isn't the norm - the problem is that LE is allowed to lie in the first place. Given that mere possibility, I have no way of knowing who I'm dealing with or what his motive might be if I get questioned by a LEO. He could be a straight shooter or he could think I'm a suspect and be spinning a web for me, and in either case I gain nothing by talking to him in most cases. I also run the risk of charges if I, in his opinion, lie or misconstrue something.
So it's not that I think LEOs lie or cross the line frequently, it's that I can't reliably sort out what's going on and so there's no point in even participating. It really is an unfortunate policy because I do understand how hard it can be to prepare a case when you don't know what a witness is going to say even if you can subpoena him to appear. But such is the law right now.
I am sure you are aware that our ability to lie to the public is limited. I can not make any promises of leniency or cohesive threats against you. I can say things like "is there a reason why your finger prints would be found at the scene of the crime" I can not say if you talk to me I promise you won't go to jail.
Pat
Alaskapopo
02-26-10, 17:22
You replied as I was typing my post, so thanks for responding there.
As for the rest of your statement, let's examine it. You made a "general" statement that law abiding people have nothing to fear. Now you are recanting a portion of that statement and saying that the effect is minimal (a great comfort to those that it's happened to, I'm sure). You just lost your credibility even moreso because I can no longer take you at your word. Now, If I were interviewing you pursuant to an investigation and you provided me with false information in such a fashion, I would then have possible grounds to pursue a violation of 18 USC § 1001. You know, the one they got Martha Stewart on?
And that's exactly how easy it is. I catch you providing false information and your future is in my hands. Now, do you want me to be a reasonable investigator and work cooperatively with you? Or would you rather I be a hard dick and nail you to a cross?
I'm not giving you the 3rd degree here, I'm just playing Devil's Advocate and asking you to examine your position from all sides. Some of the best LEO's and investigators I've worked with have remembered that they're citizens of the United States first, and LEO's second. If you only view it from the LEO perspective, someday somewhere, you're going to do a decent person wrong just because you have the ability to do so. JMO, YMMV
I am not recanting my statement about innocent people but rather clarifying it. Also in the incidents where innocent people were jailed it was not because they told the police the truth but rather gave in and confessed to something they did not do. IE lie. It you simply tell the truth assuming you did not break the law you have nothing to worry about. Sorry about the rude comment about not losing sleep over your views on my credibility. I was reacting to your tone. Your interpretation of 18 USC § 1001 is amusing. This section deals with intentionally lying to a government agent not with clarifying something someone has said or putting it in context.
I respect peoples rights and will not intentionally violate any citizens rights. However I am going to take advantage of every tool I have to legally gain evidence to put criminals away where they belong in jail.
Pat
I am sure you are aware that our ability to lie to the public is limited. I can not make any promises of leniency or cohesive threats against you. I can say things like "is there a reason why your finger prints would be found at the scene of the crime" I can not say if you talk to me I promise you won't go to jail.
Pat
But you can ask me lots of questions after coming up with a completely false pretext for them - for example, asking me about my whereabouts and activities in the last 2 days because there was a break-in down the road and you wanted to know if I was around and might have seen something, when in fact you're interviewing me because I match the description of a rapist.
Again, even if I'm innocent, there's nothing I gain from getting into all of that with you. For all I know I could tell you things that match the M.O. of the criminal and unknowingly dig myself deeper.
Alaskapopo
02-26-10, 17:31
But you can ask me lots of questions after coming up with a completely false pretext for them - for example, asking me about my whereabouts and activities in the last 2 days because there was a break-in down the road and you wanted to know if I was around and might have seen something, when in fact you're interviewing me because I match the description of a rapist.
Again, even if I'm innocent, there's nothing I gain from getting into all of that with you. For all I know I could tell you things that match the M.O. of the criminal and unknowingly dig myself deeper.
That is not quite correct. By telling the police the truth you can eliminate yourself as a suspect unless of course you did do what they suspected you did. In which case remaining silent is the best thing your 5th amendment right.
Pat
I am not recanting my statement about innocent people but rather clarifying it. Also in the incidents where innocent people were jailed it was not because they told the police the truth but rather gave in and confessed to something they did not do. IE lie. It you simply tell the truth assuming you did not break the law you have nothing to worry about. Sorry about the rude comment about not losing sleep over your views on my credibility. I was reacting to your tone. Your interpretation of 18 USC § 1001 is amusing. This section deals with intentionally lying to a government agent not with clarifying something someone has said or putting it in context.
Pat
Ahh, but who makes the decision whether it's an unintentional slip or an intentional lie? I didn't say I had you on a 1001, I said it's possible I may have a case. Does the misstatement benefit you in any way? And plenty of people have maintained their innocence throughout their trial and incarceration, so there's another misstatement. Is it a lie or unintentional again? How many times have you had a suspect "clarify" what they said when you caught them with their pants down in an interrogation or interview?
These are the exact points that dbrowne1 is raising. The potential jeopardy is there for a witness as well as a suspect. I'm not saying LEO's should never lie, it's essential to undercover ops. But using a lie as part of a ruse to gain a confession is a very slippery slope. Get it wrong and you lost your suspect's confession. Reid teaches that.
Your credibility as a LEO is currency. If you trade it for quick successes, it may cost you down the road is all I'm saying.
That is not quite correct. By telling the police the truth you can eliminate yourself as a suspect unless of course you did do what they suspected you did.
Pat
Or I could just shut my mouth in either case and they'll figure it out themselves, without the risk that I might a) say something that makes me more suspicious when I'm innocent or b) say something that could expose me to obstruction or similar charges.
Exactly what is it that I've stated that "isn't quite correct," and how is it not correct?
That is not quite correct. By telling the police the truth you can eliminate yourself as a suspect unless of course you did do what they suspected you did. In which case remaining silent is the best thing your 5th amendment right.
Pat
I'm sure you've seen these lessons?
http://www.youtube.com/watch?v=i8z7NC5sgik
http://www.youtube.com/watch?v=08fZQWjDVKE&feature=related
By telling the police the truth you can eliminate yourself as a suspect unless of course you did do what they suspected you did.
Or if I happened to be in the same place as the perpetrator, or whatever. By your logic, if the police want to search my house I should let them because I've got nothing illegal in my home. It doesn't work that way.
When the federal government wanted to "borrow" my AR15 during the Beltway Sniper incident, I didn't turn them down because I was the sniper. I declined because I had no interest in turning over a piece of highly regulated private property during the Assault Weapon Ban, only to trust that it would come back to me in a timely fashion and in the same condition.
My position was exactly what it would be if an officer wanted to search my car: "No problem. Just get a warrant and I'll be happy to stand aside and let you do your thing." If the officer doesn't think it's worth his time to get a warrant, it's not worth my time to let him go fishing in my car trunk.
The reality is that you guys are arguing two pretty extreme positions. "The innocent have nothing to fear" is ignorant, and "Never trust the cops" is imbecilic. For most people, the smart move is to cooperate until you're asked to do something that makes you uncomfortable or sets off an alarm in your head. Then politely and calmly exercise your rights. Most cops are going to be perfectly fine with that.
Wow, I leave for a few hours and all this happens?
For better or worse, the days of "just trust the cops" is over. Its been ruined by crooked and devious criminals and overzealous and even occasionally corrupt cops. These days, I have to ask myself why someone would refuse to talk to me or consent to a search. Could be mistrust due to media image, past experiences that didn't go well, not wanting the hassle or because they may have something to hide.
Having said that, I guess its up to you do decide if the good faith accidental discovery of contraband on a properly executed protective sweep is too powerful a tool for law enforcement to have.
Because this is a gun forum first and foremost, you also have to ask if this tool, long used by law enforcement for legal, ethical, and productive means, will suddenly be used to target law abiding citizens, and search their homes. Because of people on this forum, I doubt it will come to that, and that makes me happy both as a citizen and a cop.
Patrick Aherne
02-26-10, 19:08
Why don't they just secede already and get it over with. They're already the largest 3rd world socialist state we support. :(
I thought more tax dollars flowed out of Ca than back in tax subsidies. But, why let facts get in the way of your argument?
John_Wayne777
02-26-10, 19:27
Reasonable men can disagree on these topics...but for some reason threads involving LE always seem to be one post away from descending into madness.
In the interest of preserving the collegial environment of M4C, I'm going to lock this one down. It's easy for folks to get worked up in discussions sometimes, but remember this:
At the end of the day, we are all on the same side and generally want the same things. ;)
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