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Appellate judge slams his colleagues, suggests Calexico police lied in warrantless search case

February 18, 2010 - 12:05 pm

It’s not often that you see the Yiddish word “bupkes” in a federal ruling, but the chief judge for the U.S. Ninth Circuit Court of Appeals seems really friggin’ pissed off at his colleagues and Calexico police.

The other judges decided not to consider an second appeal by a Calexico man whose house was searched, without a warrant, by police who had arrested him outside his home. That, Judge Alex Kozinski says, erodes the protections against unlawful search and seizure that Americans hold dear. And he goes so far as to suggest police lied to the court.

In his seven-page dissent, peppered with caustic wit, Kozinski writes:

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 aresupposedly at their zenith?

Ouch. The court had already ruled on this once before; Kozinski rings in here on the court’s rejection of an appeal fromthe San Diego US District Court for an en banc hearing, that is, a second hearing before the whole court and not just a panel of three judges.  Kozinski goes on, showing off his interlingual synonym prowess:

The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus’s home after he was arrested just outside it. 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.

The story goes like this: Cops show up with a warrant for Juan Lemus’ arrest. He steps outside, they arrest him. The police say he had one foot inside his sliding glass window. Cops go inside, using a loophole that allows them to sweep for other people or things that might of immediate danger to the officers. Cops then call detectives in, who claim that a gun was in “plain view,” when really it was mostly hidden between cushions. They bust Lemus for it.

Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch?

Kozinski says that the law only allows police to search a home when they’re already inside when they make arrest.  Otherwise, they can only do cursory searches to make sure there ain’t someone inside waiting to shoot them.

How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plainview case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find in plain view, or close enough to lie about it.

This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie [the relevant case law] permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives?…

If the officers and detectives had truly feared for their safety, they would certainly have moved away from Lemus’s apartment once they took him into custody. Instead, they did the very thing that Buie says puts a police officer in danger: They went inside a suspect’s home. They didn’t just peek either… The officers clearly took advantage of Lemus’s arrest to conduct a leisurely search of his home looking for contraband. The story that the officers went inside to protect their safety is so transparently contrived that my colleagues can’t even tell it with a straight face.

These officers were never at risk from anyone within the apartment, and they knew it.

The judge says the police officers knew he lived alone and had been watching the home for more than an hour and saw no one else enter. Kozinski suggests that the police changed their story when they realized their search was potentially illegal.

The part of the story where Lemus was arrested with one foot inside the door was never mentioned by the detectives until the suppression hearing. It was not in the probable cause statement supporting the warrant application (which was obtained after the officers had already gone digging through the couch cushions) or in the two-and-a-half-page narrative report Longoria prepared about the arrest.  It was a detail conveniently—but not very convincingly—added when they realized the search was no good and thought this (irrelevant) fact might redeem it.

Again, ouch. In conclusion, Kozinski writes that this ruling will only produce more police abuse:

Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man’s house, his doctor’s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. “Police officer safety,” the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.

In all cases, emphasis in bold was added by the writer.

Originally, this post identified the police and the defendant as from San Diego. This was incorrect and the post has been updated to reflect that this was a Calexico event covered by a San Diego court. We regret the error. This post also has been updated to include a link to an earlier ruling and to clarify this was an appeal for an en banc hearing.

One Comment leave one →
  1. pistoleropete permalink
    February 18, 2010 - 4:13 pm 4:13 pm

    Great blog, Dave. This judge is awesome to say the least.

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