Friday, March 26, 2004

Another excuse for shoddy police work 

The 5th Circuit is making a big mistake:

In a ruling two judges dubbed "the road to hell," a federal appeals court opened the door for police officers in three states to search homes and buildings for evidence without a warrant.

The 5th Circuit U.S. Court of Appeals ruled Thursday in a Baton Rouge case that authorities don't need an arrest or search warrant to conduct a swift sweep of private property to ensure their own safety.

Any evidence discovered during that search now is admissible in court as long as the search is a "cursory inspection," and if police entered the site for a legitimate law-enforcement purpose and believed it may be dangerous.

The ruling -- which stands in Louisiana, Texas and Mississippi -- replaces a standard set in 1994, when the 5th Circuit held that police can make a so-called protective sweep only if officers are there to arrest someone.

This is a very bad idea. It is hard to see what is left of the Fourth Amendment after this decision. Friendly reminder:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If this decision is allowed to stand, what, pray tell, would be the purpose of the warrant contemplated by the Constitution? To find evidence squirreled away in such a small or inaccessible place that no prosecutor could argue that a weapon might be concealed there? That seems like a trivial interest to be protected by so many specific words.

This decision is also terrible for the incentives it creates. The police now have a huge interest in somehow legitimately gaining entrance into a person's house so that they can sweep the place for evidence. The public now has a huge interest in barring the police from their homes so that a legitimate inquiry on one topic -- "perhaps you have seen a missing child" -- doesn't turn into an arrest for the marijuana plant in the corner.

Both of these interests seem inconsistent with a just society.

TigerHawk is almost 20 years out of law school, and barely remembers his Criminal Procedure class with Yale Kamisar. I know very little about the topic today, and seem to have missed similar cases decided by other circuits. Late to the party as usual, I nevertheless believe that this is a very bad rule that should be reversed by the Supreme Court.

It also seems to me that this decision is similar -- in one sense -- to the Martha Stewart prosecution. We learned in that sorry case that one should simply not speak to law enforcement officials, because the slightest panicked misstatement could send you to jail on obstruction. With this decision (and, apparently, its ancestors) we have learned that one should never invite the police into your home. Even if they are shivering in the cold during a January night in Iowa, do not invite them into your home. They can search the whole place, as long as it is "cursory." And they will be the judge of that.


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