Warrantless searches OK'd, sometimes
Baton Rouge Advocate
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.
In the majority opinion, Judge William Lockhart Garwood wrote that any in-home encounter poses a risk to police officers -- even if it's simply to interview someone.
"Although arrest may be highly relevant, particularly as tending to show the requisite potential of danger to the officers," Garwood wrote, "that danger may also be established by other circumstances."
Judges Carolyn Dineen King, Patrick E. Higginbotham, W. Eugene Davis, Edith H. Jones, Rhesa H. Barksdale, Emilio M. Garza, Fortunato P. Benavides, James L. Dennis, Edward Charles Prado and Jacques L. Wiener, Jr., sided with the majority opinion. Dissenting were Judges E. Grady Jolly, Jerry Smith, Carl E. Stewart, and Harold DeMoss Jr.
In their opinion, the justices noted that other federal appellate courts have issued similar findings -- including the 1st, 6th, 9th and Washington, D.C., circuits.
The decision came in the case of Kelly Donald Gould, a Denham Springs man who was arrested in October 2000 on federal gun charges after allegedly threatening to kill unidentified judges and police officers.
Deputies went to Gould's trailer after getting a call from a co-worker that the previously convicted felon was planning to kill two unnamed Baton Rouge state judges over their decision to award custody of his daughter to another family member.
The deputies had no search or arrest warrant, but were invited into the trailer by another resident, who told them Gould was asleep in the bedroom. Because of the threats and Gould's criminal history, the deputies said they looked for him under the bed and in two closets, where they found three rifles.
They later found Gould hiding in the woods and seized the weapons after they got him to sign a permission for the search.
U.S. District Judge James Brady ruled that the three guns could not be used as evidence in a federal trial because they were obtained illegally. A 5th Circuit three-judge panel upheld that decision, but encouraged prosecutors to request an en banc -- or full court -- hearing to reconsider the legal precedent on which it was based.
"Gould was not in his bed asleep … nor was Gould otherwise visible," Garwood wrote. "So the danger and imminence of ambush then dramatically increased, justifying the few seconds 'sweep' looking under the bed and opening the two bedroom closet doors."
Dissenting justices argue the ruling creates another exception to constitutional protections against unlawful search and seizure. Some of them contend the officers created the dangerous situation by entering the mobile home, and should have approached Gould as he left.
"I have no doubt that the deputy sheriffs believed they were acting reasonably and with good intentions," DeMoss and Stewart wrote.
"But the old adage warns us that 'the road to hell is paved with good intentions.' In my judgment, that is precisely where the majority opinion wants to put us by unhooking the 'protective sweep' from its connection with the execution of an arrest warrant in a home," DeMoss and Stewart wrote.
U.S. Attorney David Dugas of Baton Rouge said the case illustrates the "difficult situations" law-enforcement officers often face.
"They're expected to make split-second decisions in potentially dangerous situations," he said, "involving constitutional issues that the courts and legal scholars can spend years debating."
But Mike Walsh, a defense attorney, said the 5th Circuit decision "grossly expands" the definition of lawful searches.
Said Walsh: "In my opinion, this is a further erosion of everyone's -- not just criminals' -- constitutional rights to be free from intrusive and unlawful searches."
Defense attorney Jim Boren said the ruling still limits police to searches in certain circumstances, but still represents a "scary trend."
"After the king signed the Magna Carta and granted power back to the people, he woke up, said, 'I made a mistake and need to get it back,' " Boren said. "And the government's been trying to do that ever since. We had a bright-line rule that said no searches without an arrest warrant. Now we have one that says sort of, maybe."
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Related
Court Opens Door To Searches Without Warrants
Baton Rouge Advocate
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.
In the majority opinion, Judge William Lockhart Garwood wrote that any in-home encounter poses a risk to police officers -- even if it's simply to interview someone.
"Although arrest may be highly relevant, particularly as tending to show the requisite potential of danger to the officers," Garwood wrote, "that danger may also be established by other circumstances."
Judges Carolyn Dineen King, Patrick E. Higginbotham, W. Eugene Davis, Edith H. Jones, Rhesa H. Barksdale, Emilio M. Garza, Fortunato P. Benavides, James L. Dennis, Edward Charles Prado and Jacques L. Wiener, Jr., sided with the majority opinion. Dissenting were Judges E. Grady Jolly, Jerry Smith, Carl E. Stewart, and Harold DeMoss Jr.
In their opinion, the justices noted that other federal appellate courts have issued similar findings -- including the 1st, 6th, 9th and Washington, D.C., circuits.
The decision came in the case of Kelly Donald Gould, a Denham Springs man who was arrested in October 2000 on federal gun charges after allegedly threatening to kill unidentified judges and police officers.
Deputies went to Gould's trailer after getting a call from a co-worker that the previously convicted felon was planning to kill two unnamed Baton Rouge state judges over their decision to award custody of his daughter to another family member.
The deputies had no search or arrest warrant, but were invited into the trailer by another resident, who told them Gould was asleep in the bedroom. Because of the threats and Gould's criminal history, the deputies said they looked for him under the bed and in two closets, where they found three rifles.
They later found Gould hiding in the woods and seized the weapons after they got him to sign a permission for the search.
U.S. District Judge James Brady ruled that the three guns could not be used as evidence in a federal trial because they were obtained illegally. A 5th Circuit three-judge panel upheld that decision, but encouraged prosecutors to request an en banc -- or full court -- hearing to reconsider the legal precedent on which it was based.
"Gould was not in his bed asleep … nor was Gould otherwise visible," Garwood wrote. "So the danger and imminence of ambush then dramatically increased, justifying the few seconds 'sweep' looking under the bed and opening the two bedroom closet doors."
Dissenting justices argue the ruling creates another exception to constitutional protections against unlawful search and seizure. Some of them contend the officers created the dangerous situation by entering the mobile home, and should have approached Gould as he left.
"I have no doubt that the deputy sheriffs believed they were acting reasonably and with good intentions," DeMoss and Stewart wrote.
"But the old adage warns us that 'the road to hell is paved with good intentions.' In my judgment, that is precisely where the majority opinion wants to put us by unhooking the 'protective sweep' from its connection with the execution of an arrest warrant in a home," DeMoss and Stewart wrote.
U.S. Attorney David Dugas of Baton Rouge said the case illustrates the "difficult situations" law-enforcement officers often face.
"They're expected to make split-second decisions in potentially dangerous situations," he said, "involving constitutional issues that the courts and legal scholars can spend years debating."
But Mike Walsh, a defense attorney, said the 5th Circuit decision "grossly expands" the definition of lawful searches.
Said Walsh: "In my opinion, this is a further erosion of everyone's -- not just criminals' -- constitutional rights to be free from intrusive and unlawful searches."
Defense attorney Jim Boren said the ruling still limits police to searches in certain circumstances, but still represents a "scary trend."
"After the king signed the Magna Carta and granted power back to the people, he woke up, said, 'I made a mistake and need to get it back,' " Boren said. "And the government's been trying to do that ever since. We had a bright-line rule that said no searches without an arrest warrant. Now we have one that says sort of, maybe."
_____________________
Related
Court Opens Door To Searches Without Warrants
