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Welcome to the fishbowl (pdf - sorry)

Synopsis: Cops raid a man's home without a warrant, without probably cause, with nothing, find a gun and the search is upheld as legit and the 9th Circut just upheld the ruling.

Judge Alex Kosinski ain't pleased and pens a dissenting opinion.

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 are supposedly at their zenith?...

I suppose it is part of the paranoia-based superiority complex that many cops have - that more or less defines most police person's attitudes to citizens - that they are all guilty of SOMETHING and the Constitution bars them from discovering and punishing everybody's crimes. Guilty until proven guilty, essentially.

I won't belabor the point: The War on Drugs has been the main assailant of the 4th Amendment, paving the way for the war on terror to finish it off.

And here we are being advised that it's formally deceased and went out so meekly we didn't really notice.

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.

Whatever may have been left of the Fourth Amendment after [United States v. Black] is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.

THis is a ruling law enforcement will no doubt welcome. A blank check to run roughshod over Americans. A Police Dream.

And Americans will likely just put up with it. They are already tolerating anything now: drug testing for any job, however piddly, phone taps, e-mail spying, listening on your cell phones: Americans just don't care. They don't have anything to hide, so what's the fuss, right?

The whole thing is here in annoying pdf.

Here's a bit more from that

Warrantless searches have "always been considered to be a strictly limited right . . . grow[ing] out of the inherent necessities of [certain] situation[s]." Chimel v. California, 395 U.S. 752, 759 (1969) (internal quotation marks omitted). The "scope" of a warrantless search "must therefore be strictly defined in terms of the justifying ‘exigent circumstances.’ "Coolidge v. New Hampshire, 403 U.S. 443, 478 (1971). The Buie exception is particularly toxic to Fourth Amendment values because it permits a search with zero individualized suspicion—with nothing at all but the presumption that the UNITED STATES v. LEMUS 2533 home is a dangerous place for the police. This is a fair presumption if the police are already inside the home and exposed to danger. But to use the exception as a wedge for entering the home turns Buie inside out.

Originally posted to Toking Points Memo on Wed Feb 24, 2010 at 02:52 PM PST.

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