Judge Alex Kozinski: The Fourth Amendment is Gone. "Welcome to the fish bowl."

Judge Alex Kozinski: The Fourth Amendment is Gone. "Welcome to the fish bowl."

reason.com

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—

(visit the link for the full news article)

So basically the guy gets arrested somewhere outside of his residence . And his house is searched without a warrant.The gun found inside if i understand correctly was used against him even though his house was searched without a warrant, without probable cause, without reasonable suspicion and without exigency.

Might as well forget about the 4th Amendment because , if you ask our the persons involved in this case , it did not matter.

reason.com
(visit the link for the full news article)

reply to post by Fatality


Little by little, Whittle this away throw this out, re-write this law, Excutive orders, legislate from the the bench. The time of reckoning will come one day. But only after we wake up and see Foreign troop patroling our streets.

America is dying a little at a time each day.

Here's the nuts and bolts problem with this:

The officers are testifying that the suspect "broke the threshold of the living room by partly entering through the sliding glass doors".

In which case, if true, the officers are then legally allowed to search the area immediately surrounding the area in which the suspect was arrested. In this case, by partially entering the sliding glass doors to his living room, the living room then becomes directly next to and adjoining where he was arrested. Note: He was arrested AS he was crossing the threshold into the living room.

It seems to me that from reading the entire .PDF doc, that the original judge feels as if the suspect DID NOT cross into the living room at all, thereby making the search unlawful.

This isn't really a case of breaking the fourth amendment, it's really simply a case of where the suspect and officers were EXACTLY located at the time of the arrest. The original judge obviously disagrees that the suspect crossed into the house at all and further, that all of the officers were located outside of the house -- which would render the search illegal.

This is the perfect example though of exposing the very real gray area in which our judicial system seems to be functioning at present.

If one can learn anything from this: Do not run into your home or open any doors to your house if you are outside and police arrive to arrest you.

I just made a thread about the Katrina shootings and cops messing up the crime scene.



www.washingtonpost.com...

See, now everyone is a criminal!
They can go into your homes and plant evidence anytime they wish

keep cameras in your homes!!!!!!!!!!!!!!!!!

A search "incident to arrest" is allowable under the Fourth Amendment. An officer in these circumstances may search for:

1. Fruits of a crime
   
2. Instrumentalities of a crime
   
3. Contraband
   
4. Evidence of a crime
   

In the immediate area of where the arrest takes place. If it were true that the suspect broke a window attempting to get back into the house, I think it is fair to say the officers have an justifiable search.

Nah, the Constitution is all good still. They have not broken the 3rd Amendment yet, right?

Crap, forgot about the Civil War and Reconstruction.

Well, Article VII still holds strong. Reminds me of something.

reply to post by ExPostFacto


I thought that the officers entire premise for the search was based on the fact that the suspect opened his sliding glass doors and broke the plane of the doorway. I don't think I read anywhere he broke a window....maybe I missed it?

The bottom line is that they did not break any laws by their search provided the suspect did partially enter his home and subsequently the living room where the gun was found. It was their sworn testimony that he did cross the threshold, so that was what the court ruled on.

Now, I am not sure of whether or not the cops lied -- that's entirely possible -- but that is also a whole other issue.

reply to post by lpowell0627


But let us expand this idea. If I were to enter an apartment building, wouldn't every apartment be adjacent to me at that point? I could have someone in any one of those apartments willing to hand me a gun as I came inside.

Originally posted by Ahabstar
reply to post by lpowell0627

 

But let us expand this idea. If I were to enter an apartment building, wouldn't every apartment be adjacent to me at that point? I could have someone in any one of those apartments willing to hand me a gun as I came inside.

No, unless you are the registered resident of each apartment. And then, they would have to be directly adjoining the area in which you were arrested.

So, if you are crossing into your apartment and are arrested, whatever room is touching that area can be searched. If it is a studio, it includes the entire area. [They break it down into more exact area sizes, but you get the idea]

However, if you DO NOT break the plane of the doorway, nor open the door at all, and they arrest you in the hallway, they have NO legal right to then search your apartment.

Edit to add: Theoretically, one could have friends anywhere waiting to assist -- in a bathroom, in a nearby car, inside a close house, etc. But they do not extend the right to search any of these areas.

The only clause is if the police make an arrest in an area known to have high crime rates, such as in Oakland or something, they may then search the immediate area to ensure it is safe. But this is only the case when the arrest is made outside, in the open.

[edit on 24-2-2010 by lpowell0627]

Wait, there are amendments besides the 2nd? 'Cause I coulda sworn out we just spent eight years throwing htem all out except that one.

Huh. Well, good to be surprised!

reply to post by lpowell0627


Opps sorry I miss read what you posted. You are right the police said he broke the threshold of the sliding glass door...not that he broke a window. Either way, your analysis is correct once that threshold is broken it subjects the area to the search.

This case, like you mentioned, is where they gray area of police work occurs and is has the most potential for abuse.

The only problem with this is that:

If the guy is getting arrested outside the house , why would he run inside? I mean you are surrounded , go inside and do what?

This looks to me that they needed a reason to get inside his house so they fabricated the fact that he put half his foot in the house. And by this premises they can do this to anybody. "Well he had his toe in the house , we had to search everything" and you cannot prove otherwise since it's their word against yours.

Originally posted by Fatality
The only problem with this is that:

If the guy is getting arrested outside the house , why would he run inside? I mean you are surrounded , go inside and do what?

Hide the gun the cops are going to find in your couch?

This looks to me that they needed a reason to get inside his house so they fabricated the fact that he put half his foot in the house. And by this premises they can do this to anybody.

The suspect admits to opening to the sliding glass doors in an attempt "to retreat back into the house" prior to getting arrested.

"Well he had his toe in the house , we had to search everything" and you cannot prove otherwise since it's their word against yours.

This is where the gray areas of law step in. However, the suspect was fool for even reaching for the doors to his house. Both suspect and officers agree that the police informed him they were there to arrest him PRIOR to him opening the door. Where his foot was at the time they actually put handcuffs on him is another story.

Moral of the story: If cops are at your house to arrest you, and you are outside of it, stay there. Do not touch anything else and do not attempt to open or otherwise draw attention to your house. For example, if you begin yelling for someone inside to assist you, and they come barreling out yelling and screaming, the cops can interpret this as "hostile and threatening". Things will then escalate from there.

I used an apartment building as an example, but what of an unlocked car that does not belong to the person...but the person may (or may not know) that there is a gun, drugs, etc. hidden under the seat or elsewhere in the car.

Still a very sticky situation. Really no different than DUI Checkpoints that also happen to check for outstanding tickets, suspended license, registration, seat belt violations and proof of insurance. Do not these things also violate the fourth?

The argument here in Ohio is that they publicly announce the location and times of operation of these checkpoints to the media several hours in advance. So that your driving near a checkpoint is "voluntary" as you could have "chose a different route". However if you are so close, you will be rerouted to go through the checkpoint. But the media is told and it is then up to the media to pass on that information. So far, I have only heard one radio station locally that does pass on the info.

The other parts of the checkpoint argument is that driving is a privilege and that you are in the public and not a private residence. I have never driven through one in a personal car, but it is said that the officer does do a passive visual inspection of the car (flashlight sweep) and could do a full search if he had "probable cause" of controlled substances or other illegal material may be in the car, such as a gun that was concealed or improperly contained for transport (less than three steps in order to be ready to fire).

While I think it is fine and reasonable for an officer to check the immediate area to be certain there is no threat of their safety nor tossed evidence such as drugs. Doing more than a passive search without due probable cause is illegal.

reply to post by Fatality


...what was juan herman lemus being arrested for?... i googled but couldnt find anything that stated the charge... does it matter what he was being arrested for?... maybe not legally but i'd to know anyways (in case anyone runs across that info)...