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A Fourth Amendment Case That I Missed:

From United States v. Black (Apr. 10, 2007) (Kozinski, J., joined by Reinhardt, Kleinfeld, and Berzon, JJ., dissenting from denial of rehearing en banc) (some paragraph breaks added, citations deleted):

The relevant facts are undisputed. Walker called 911 at precisely 8:39:3465 A.M. from a grocery store to report that she had just been beaten by Black, who had a gun. At the end of the call, Walker indicated that she would drive back to the apartment with her mother, and that they would wait for the police outside the building in a white pick-up truck. She spoke with the dispatcher until 8:40:1749. Officer Rodriguez was dispatched at 8:42:5825, and arrived at the apartment half a minute later, at 8:43:2487. The total time elapsed between Walker hanging up with the 911 dispatcher and the arrival of the police at the apartment was three minutes and seven seconds. Rodriguez testified that it would take about two minutes to drive from the grocery store to the apartment. When Rodriguez arrived, he did not see Walker, her mother or the white truck. Walker was, at that point, just one minute past her earliest possible arrival time.

Rodriguez and another officer knocked on the apartment door, but nobody answered. The other officer circled around back and found Black in the backyard. When the officers didn't find a gun on Black, they took his key to the apartment, performed a "welfare" search of the dwelling and found the gun -- and, of course, didn't find Walker.

There was absolutely no evidence of the government's nightmare scenario that Walker lay bleeding and unconscious inside the apartment. As the 911 dispatcher's log shows, there was "not enough time for Black to somehow get Walker back into the apartment, and to injure her, and then to leave, as the government theorizes could have been the case." Nor were there any eyewitnesses, signs of a scuffle, reports of gunshots or even of a commotion. The abduction would have happened in the street, in broad daylight, yet no one saw a thing; the super, who talked to the police, reported nothing unusual.

Officer Rodriguez admitted that he had "[n]o information" that Walker was in the residence; his explanation for the warrantless entry was that "if she'd have come back to the residence, [Walker] possibly could have gotten taken . . . back into the house and stuff." If this satisfies the government's "heavy burden" to show "extraordinary circumstances" not based on "speculation," then "heavy burden," "extraordinary circumstances" and "speculation" have no meaning in these parts.

The majority gives the government a pass because "the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy." The problem with this approach is that the government has any number of such crises-du-jour: terrorism, child pornography, child abuse, drugs, hate crimes -- the list is endless. When confronted with such serious crimes, it is the job of the police to be suspicious; the job of the courts is to insist that police develop evidence supporting these suspicions before they defile the sanctity of the home.

In a particularly disturbing passage, the panel majority opines that "[e]rring on the side of caution is exactly what we expect of conscientious police officers." . This is entirely backwards when the cautious error involves invasion of the home. In such circumstances, we expect police to err on the other side of caution by staying out unless and until they obtain a warrant or satisfy the demanding constitutional standard for a warrantless search. The majority's unfortunate phrase will be widely seen as a green light for the police to "err on the side of caution" by breaking into people's homes based on half-baked suspicions.

When a panel of our court can find that the facts here satisfy the government's "heavy burden" for invading the home without a warrant, I despair about the future of our constitutional rights. If the right accorded the greatest protection by the Fourth Amendment -- the right to privacy of the home -- can be so casually brushed aside, no right is safe. Because my colleagues do not similarly view this issue as one of exceptional importance, I sorrowfully dissent.

From the panel majority (some paragraph breaks deleted and some added, some citations omitted):

The dissent parses the time too finely. First, the police did not have stop-watches in hand and could only approximate the elapsed times. Second, if Black had seen Walker arrive outside the building, it would take little time for him to threaten Walker with a gun and force her inside. Third, what the officers knew at the time was that Walker said she would meet them at the scene, she was not there but her attacker was, and he denied living in the apartment though he had a key to it.

These circumstances were reason enough for the officers to believe that Walker could very well be in the apartment injured. In addition, the attacker admitted that he was aware that the officers were investigating a domestic violence call. How did he know that? It could be that Walker told him earlier that she was calling the police. But a more serious alternative was also a possibility: Walker had returned and told Black that the police were on the way to which he had a violent response. The officers did not have the time to conduct a thorough examination of all the information that was available to them and to conclude, as we might after the fact, that this was an unlikely possibility.

As the dissent rightly concedes, whether the actions of the police are objectively reasonable is to be judged by the circumstances known to them. They were not conducting a trial, but were required to make an on-the-spot decision as to whether Walker could be in the apartment in need of medical help; the objective circumstances did not require them to reach the conclusion that there was little or no risk that Walker was in the apartment in danger. To the contrary, the combination of these circumstances support an objectively reasonable belief that Walker could be in the apartment.

This is a case where the police would be harshly criticized had they not investigated and Walker was in fact in the apartment. Erring on the side of caution is exactly what we expect of conscientious police officers. This is a "welfare search" where rescue is the objective, rather than a search for crime. We should not second-guess the officers objectively reasonable decision in such a case.

Our circuit has recognized that "the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy." While we have stopped short of holding that "domestic abuse cases create a per se exigent need for warrantless entry," we continue to evaluate, on a case-by-case basis, whether the "total circumstances, presented to the law officer before a search ... relieved the officer of the customary need for a prior warrant." Our own individualized assessment of the circumstances presented in this case leads us to the same conclusion that the district court reached: the officer's initial warrantless entry into the apartment was justified by exigent circumstance and, as a result, the subsequent seizure of Black's handgun -- this time, accomplished with warrant in hand -- was not unconstitutional under the Fourth Amendment.

whit:
this actually addresses a point i have made in other posts here. i know it's commonly claimed that there are all sorts of threats to 4th amendment in the enforcement of drug laws. i have seen (in my police experience) far more examples of questionable erosions of rights (search and seizure, free association, etc.) pursuant to domestic violence type of investigations, than in drug investigations.

not only does (imo) the VAWA violate basic concepts of states' rights, all sorts of examples abound of questionable searches, arrests (mandatory even...), and such that happen pursuant to domestic violence investigations, etc. there is a whole cottage industry of advocacy groups, etc. that make sure that this is so.

it's a politically charged (and pc crime) and thus legislators, judges etc. bend over backwards.

these cases are routinely prosecuted without victim cooperation, orders are issued against the wishes of alleged victims, houses are searched, and mandatory arrests made etc. that would cause concern if it was not "domestic violence".

heck, it's the only type of arrest i can make in my state that gives me full good faith immunity. no other arrest has those sorts of protections for law enforcement, against being sued, etc.
5.15.2007 8:14pm
Steve:
Oh no! Reinhardt and Kozinski on the same side! What is the VC to do?

It seems to me that Officer Rodriguez would know the time he was dispatched, but he wouldn't necessarily know the time of the original 9/11 call. Or am I wrong about this?

It seems to me, much as I adore Judge Kozinski, that the panel majority has the better side of this. You have an unclear situation which unfolds in a matter of minutes; the police don't have the benefit of a statement of stipulated facts to go by. Maybe the timing was off. Maybe the information that the complainant was at the grocery store was in error. We have a woman complaining about domestic violence, and the police are unable to find her anywhere. They would be ridiculously amiss if they didn't at least stick their head in the apartment and look for her.

I assume Judge Kozinski accurately states the standard when he says the government has a "heavy burden" to show "extraordinary circumstances" not based on "speculation." But having stuck their head into the apartment in search of the victim, and seeing a gun lying in plain sight on the bed, what are the police to do? In this case, they went back and got a proper warrant, which seems like the only reasonable course. It's ridiculous to say that if the police go searching for a crime victim, they do so at their peril knowing that if they stumble upon any evidence, it's going to be excluded forevermore.
5.15.2007 8:30pm
Shelby (mail):
What Steve said. Kozinsky's great and his heart is in the right place here, but the police are only human and can't be expected to figure, "hmm, it's only been three minutes since the call ended. If it were FOUR minutes she might be in the apartment, but it wasn't."
5.15.2007 8:53pm
elChato (mail):
Kozinski seems to have worn out a box of hankies on his dissent from denial of en banc- "Once upon a time in the West there was a special place called home," "I despair about the future of our constitutional rights," "I sorrowfully dissent"-- you can almost see him riding off in the sunset with his own sad theme music.
5.15.2007 8:55pm
K:
This is the rare topic doesn't really involve much theory.

I think the case was properly decided. Officers are not equipped with devices that allow them to survey all possibilities, weight them to infinite precisions, and choose only correct conclusions.

The two officers had a reasonable belief the woman could be in need of aid. And that it was better to search for an afflicted woman than to assume she wouldn't be found and so not search.

Did the officers err? Yes. The white pickup was not there. Most people would think the woman hadn't arrived. And yet who argues not seeing a pickup was conclusive; the woman simply could not be in her apartment.
5.15.2007 9:43pm
Pub Editor:
Decision of the Day posted on this case here.
5.16.2007 1:50am
Joel Rosenberg (mail) (www):
The lesson of this case to police officers is obvious: if you want to search for a weapon or contraband, instead of getting a warrant -- and explaining to the judge why he or she should issue you one -- it's much simpler to affect to be very concerned about the safety of somebody. That way, you conduct the search that you wanted to, and if you find then weapon or contraband (say, in a drawer or the fridge) carefully put it in plain sight, then "find" it, and then go get your warrant.

Did that happen in this case? I dunno; probably not. But the majority has -- unwittingly, I presume -- now constructed yet another easy alternative to getting a search warrant.
5.16.2007 11:38am
Bill Sommerfeld (www):
The dissent should lose points for improper and excessive use of significant figures. The victim phoned at "precisely 8:39:3465 A.M" ? It takes a few seconds to pick up and dial a phone; claiming to have 10-millisecond precision on when such an event happened indicates a fundamental confusion about the nature of measurement.
5.16.2007 2:19pm
whit:
"it's much simpler to affect to be very concerned about the safety of somebody."

riiiiiight. because police officers are never *actually* concerned for people's safety and wellbeing. everything they do is merely subterfuge and pretext for violating people's civil rights. :l

fwiw, there was one case with my dept a couple of years back where an officer in a situation like this, with arguable "community caretaking" and 'welfare check' stuff to go on did not kick a door in and the next day , officers responded to the now reported homicide there. i realize that's just one anecdote, but there are a million stories in the naked city.

officer's #1 JOB is not to gather evidence, arrest people, etc. it's to protect people (and as a lesser goal - to protect property).

i used to work as a firefighter, and before that a lifeguard. i have seen the same desire to help (and protect) people among cops as i did in those professions.

it's the job of defense attorneys etc. to make silly arguments like the cop was merely pretending to be concerned, no matter how absurd.

thanks for keeping the faith! :)
5.16.2007 2:57pm
whit:
"But the majority has -- unwittingly, I presume -- now constructed yet another easy alternative to getting a search warrant."

also, they did not "construct" this concept. they merely ruled that this case met that standard.

exigency, community caretaking, etc. exceptions have been around for far longer than this decision.

the 4th essentially comes down to one thing. is it "reasonable?"

as for 'erring on the side of caution', that's good language and im glad they used it. it's also how most cops (and firefighters) operate - under that principle.
5.16.2007 3:05pm
Deoxy (mail):
"it's much simpler to affect to be very concerned about the safety of somebody."

riiiiiight. because police officers are never *actually* concerned for people's safety and wellbeing. everything they do is merely subterfuge and pretext for violating people's civil rights. :l


riiiiiight. because police officers never *actually* plant evidence EVER, and it's not a thought that should even enter our innocnt little heads. :l

BOTH sides have a point. Pointing out that there ARE officers that will abuse this authority DOES NOT MEAN "all officers are bad". It doesn't even imply that most or even MANY officers are bad.

If on officer in a thousand is willing to abuse the system upon occasion, how many officers would that be? And 1/1000 is still significantly better than the populace as a whole (by at least an order of magnitude).

One of the founding principles of this country is that govrnment (and its agents) are not to be trusted, that the burden of proff lies with them, not with the people. This is yet another fairly-easily-abusable loophole...

...that said, it is admittedly a difficult situation, and I think I agree (mostly) with the majority, in that it was not unreasonable for the officers to stick their head in and look around for the woman in question.

I would then state that any incidental things noticed would be unreportable, but that mechanism is fairly difficult to deal with.
5.16.2007 5:39pm
Kelvin McCabe:
Whit, you are right that it is "now" the case that the 4th amend. comes down to one thing, "was it reasonable?" This is after 8 decades of incessant chipping away at the actual words and intent of the amendment itself.

Trace the history of the 4th amendment from roughly 1900 to today and you will see judicial activism writ large in the name of "protecting people from...(insert social ill de jure here)" Both sides of the Court are guilty of it, liberal and conservative.

We went from the idea that "a man's home is his castle" in a literal sense, to "we dont need a warrant to get into the man's house because there are 50 warrant exceptions to get us in, one for each situation" Why this is so, when most judges routinely grant search warrant applications as a matter of course anyway, is beyond me.

Regardless, slowly, over time, the "carefully delineated and jealously drawn" exceptions to the warrant requirement spawned newer variants, all finding approval in the Courts. I ask you to perform a simple task: Name, off the top of your head and in less than a minute, all proposed warrant exceptions that have been denied by the Courts? Now do the same with warrant exceptions that have been approved by the Court. I didnt have an answer to the first question, and i wasnt done answering the second in the minute timeframe. Perhaps with your law enforcement background you may know of some new attempt to get around Prob Cause or the Warrant Requirement that i dont know about. Good luck. Please report back your results and i trust you, as a representative of the law enforcement community, to be honest.

What people dont get, and what is important, is what was said and thought long ago by Justice Brandeis and is particularly relevant to this topic: "Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Every one of the common exceptions carved out in the war on drugs, the war against Driving while intoxicated (implied consent and all that), domestic violence exceptions (welfare)(community caretaking), probationer search exceptions, dog sniff not a search exception, vehicle exceptions, etc..etc.. were all proposed with a good idea in mind and have found numerous backers. And this is exactly why they are the most dangerous. They are the rungs of the slippery slope, which, by my estimation, is 3/4 complete in demolishing the 4th amend. completely.

This is why every new encroachment, even if it makes total sense in the context of the case in which it was upheld, is seen as treason by defenders of liberty because we know, like you know, that it will be upheld for situations entirely different from the case that spawned it. Im afraid experience has shown us all that Mr. Rosenberg, posting above, is most likely right.
5.16.2007 5:40pm
whit:
fwiw, the argument that something CAN be abused and therefore it's bad is kind of silly.

witnesses can (and do) lie. therefore, we might as well not allow witness testimony.

evidence CAN be planted. therefore, we should not allow evidence.

do you see how absurd it is.

fwiw, i've read the 4th. it does not (unfortunately) mention a right to privacy. my state constitution does, which is why state agents have much more restrictive search and seizure authority.

the 4th does come down to just what is says. the standard is REASONABLE. and subsequent case law, bearing that in mind (terry v. ohio) etc. resulted.
5.16.2007 5:58pm
whit:
"...that said, it is admittedly a difficult situation, and I think I agree (mostly) with the majority, in that it was not unreasonable for the officers to stick their head in and look around for the woman in question.

I would then state that any incidental things noticed would be unreportable, but that mechanism is fairly difficult to deal with."

why? that goes against case law, and common sense.

the two relevant thangs are 1) open view and 2) plain view.

in essence, if an officer is lawfully present in a location, what he sees is admissible. that's logical. your conclusion is not. you are saying it should have been logical for them to be there, but anything they see should have been excluded as evidence.

i fail to see the logic (not to mention it totally goes against relevant case law about admitting items in plain view and items in open view).

i am a defender of liberty too. i think far too much stuff that is illegal, should not be, that govt. has too much power, and that people should be basically left alone.

but that's irrelevant to this issue, because what is relevant is - what does the constitution and case law SAY about it. not the constitution we wish we had, but the one we DO have.

you cannot logically (not to mention case law) allow exigency searches etc. and then say whatever is seen is not admissible.

that makes no sense.

chewbacca notwithstanding...
5.16.2007 6:02pm
whit:
"Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting) "

i'd add a corollary. govt. is at its worst when it tries to protect us FROM OURSELVES - see: the war on drugs, speech codes (college campuses), congressional ephedrine hearings (oh boy) etc.

when govt. agents enter a residence to try to protect somebody from harm (like in this case), as long as they have reasonable factors to believe it's necessary - i'm all for it. that is a much more noble and justified cause, then when govt. does stuff to prohibit people from hurting themselves, etc.

i also take exception with your argument about implied consent.

implied consent works because it affects administrative not criminal issues. iow, you refuse a BT upon PC of arrest, you get administratively (not criminally sanctioned)

there is no right to drive (contrast with firearms, etc.) and it's entirely reasonable. there is no criminal sanction for not consenting to a chemical (breath, blood) test for ETOH. only an administrative sanction

fwiw, my state constitution (which has a right to privacy) results in case law that makes DUI roadblocks unjustifiable.
5.16.2007 6:07pm
Kelvin McCabe:
Whit, i dont have time to respond to all your posts, but i will respond to the implied consent issue you raise. When a cop does a blood draw on a DUI suspect, against the suspect's will or without permission (if the suspect is dead or knocked out), he is "taking" (seizing) evidence. The evidence is the blood that contains the alcohol concentration to prove the criminal offense of DUI. There is nothing administrative about the evidence that is abduced and presented at trial. There are serious 5th amendment self incrimination issues that Mothers Against Drunk Drivers has successfully taught our legislators to ignore.

Look, if you and your brethren, and the prosecutors and most judges, dont like the f-ing bill of rights, garner support for a constitutional amendment abolishing them. At least be honest about the goal. Its not the criminal defense lawyer's fault that most of those most sacred and fundamental rights, known as the bill of rights, apply to the accused in a criminal context. But its not also pure chance. If we ignore why the restrictions were put in place, the history that led to their enactment, we are going right back down the road that led to the " When in the course of human events...." etc..etc...
5.16.2007 7:09pm
whit:
"Whit, i dont have time to respond to all your posts, but i will respond to the implied consent issue you raise. When a cop does a blood draw on a DUI suspect, against the suspect's will or without permission (if the suspect is dead or knocked out), he is "taking" (seizing) evidence."

i agree. i was referring to implied consent voluntary chem tests that result in license suspension if u refuse, upon arrest for DUI. i wasn't referring to these involuntary draws.

as for the 2nd paragraph. i like the bill of rights as much as you do, feel the govt. (especially the feds) have extended WELL beyond their constitutional authority, and would love to see govt. get out of people's hair far more often than they do.

i disagree with you, in regards to certain examples that you see as violating the bill of rights.

the above case is the perfectexample of the exigency exception.

i suggest you read the 4th amendment. again. you clearly are missing what it ACTUALLY says in preference to what you want it to say.
5.16.2007 7:21pm
whit:
"Whit, i dont have time to respond to all your posts, but i will respond to the implied consent issue you raise. When a cop does a blood draw on a DUI suspect, against the suspect's will or without permission (if the suspect is dead or knocked out), he is "taking" (seizing) evidence."

oh btw, there is nothing in the bill of rights that says that cops can't take evidence. (note also that evidence is there to protect the innocent as well as convict the guilty).

what it says is that you can't take evidence in certain circumstances, that you need a warrant in certain circ's etc.
5.16.2007 7:28pm
Brian G (mail) (www):
What bothers me is that if the officer had not gone into the apartment because he was afraif of a 1983 lawsuit, and there were victims inside that could have been saved but weren't, the officer would have been slapped with a 1983 suit.

In my view, this language from the majority is the clincher:


This is a "welfare search" where rescue is the objective, rather than a search for crime. We should not second-guess the officers objectively reasonable decision in such a case.


However, I must also say that this is a case where the dissent is about as right as the majority. Still, in the end I believe judges should not be second-guessing the police officer under these specific facts.
5.17.2007 2:21am
Kelvin McCabe:
Thanks Whit. It had never occurred to me that as a criminal defense practitioner I should read the 4th amendment. Let's see. "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 and affirmation, particularly describing the place to be searched, and the person or things to be seized."

I note you find that the word privacy doesn't appear. So apparantly the 4th amendment doesnt have to do with privacy. Wrong. The whole f-ing point of the amendment is too restrict the ability of the gov.t and its agents to interfere with a person's ability to keep themselves and their property away from the prying eyes of the gov.t If the 4th amendment doesnt entail a privacy interest, i dont think you know what privacy means.

Regardless, from the purposefully vague terms of the 4th, the Sup Ct has made some interesting and quite contradictory pronouncements. One: 1)warrantless searches and seizures are per se unreasonable. 2) a dog sniff of the interior of a car in an effort to detect/find drugs or contraband is not a "search" 3) A warrantless seizure of a person in public is okay on a showing of less than probable cause (Terry v Ohio). You reconcile these pronouncements/ decisions anyway you see fit.

I can say the dog sniff decision (illinois v caballes) is a product of the erosion of civil liberties that pertains to an indvidual upon his mere use of a vehicle, thanks to the vehicle exception and its attendnant varieties (inventory search, etc...) You can argue that people dont have an expectation of privacy in the contents of their car trunk, because cars are highly mobile. Never mind that you need keys to get into the trunk and it is closed to the public for all intents and purposes.

You can say that its reasonable to apprehend a person on the street when he looks suspicious. (terry stop) I say this leaves a person's liberty subject to the arbitrary whim of a police officer. What is suspicious to one, may not be suspicious to another. Dont even get me started on the sup ct's pronouncement that upheld racial profiling, so long as there was an objective reason to pull the guy over for some traffic violation, no matter how trivial. Whatever unreasonable means in the context of the 4th amendment, pulling someone over on a hunch based on a stereotype is the height of unreasonableness. And no, inner city tactical officers usually dont pull people over for not signaling 75 feet before a turn. Unless the guy is black, drives a fancy car, and has way to much gold on.

Look, i am glad that you see the stupidity of the governments desire to protect people from themselves, like in the war on drugs. But you are part of the system. You perpetuate the system with every bust you make. You should use your experience, your knowledge of the criminal process, and express it in a constructive fashion. May i suggest Law Enforcement Against Prohibition? LEAP could always use people like you to speak on their behalf. If you believe in liberty, do something for it. Im sure there has to be some protection from being fired for airing legitimate 1st amendment protected speech. :)
5.17.2007 3:27pm