Wednesday, February 24, 2010

Judge reads elegy for the Fourth Amendment

Last week, admonishing his colleagues, who had just turned away an important search-and-seizure case, Chief Judge Alex Kozinski, of the U.S. Ninth Circuit Court of Appeals, effectively pronounced the Fourth Amendment dead. After the court signed off on police search of an apartment without a warrant, probable cause or reasonable suspicion, Kozinski said, "Whatever may have been left of the Fourth Amendment ... is now gone."

In the case of United States v. Lemus, police peacefully arrested Juan Hernan Lemus of Calexico, California, outside his home "before he could fully enter the doorway and retreat into his living room." With Lemus in custody, and without a search warrant for the apartment, police then entered the dwelling for a look around.

From the majority decision (which is written like a crime novel):
Diaz, in the living room, got Detective Longoria’s attention. Wasn’t there something sticking out from the couch? Detective Longoria thought it looked like the butt of a weapon. Since Lemus was a felon, having a gun would be a crime. Detective Longoria lifted the couch cushion to make sure, and confirmed that it was a semi-automatic handgun. It was later determined to be a Sturm and Ruger, 9 millimeter.
Unsurprisingly, Lemus's attorneys challenged the search, which was the basis for subsequent charges unrelated to the original arrest. They pointed out that precedent permits search of the immediate area around suspects arrested in their home to assure the safety of the arresting officers, and limited protective sweeps of the full dwelling to make sure no potential allies of the arrestee are lurking in the shadows. But Lemus was already in custody, having been arrested outside. Police chose, on their own, to enter the residence.

No problem, said the district court. The majority of judges at the appeals level agreed.  "Lemus was arrested in an area 'immediately adjoining' the living room, a limited search of that room was proper without either reasonable suspicion or probable cause as a protective search incident to the arrest."

But Kozinski objects (PDF):
The panel's fig leaf for this clearly illegal search is that "at most Lemus was only partially outside" of his living room door when the officers seized him. Lemus, 582 F.3d at 963. So what? Under Buie, Lemus’s location at the time of arrest is irrelevant; it's the location of the police that matters. Buie authorizes a search incident to an in-home arrest because being inside a suspect's home "puts the officer at the disadvantage of being on his adversary’s 'turf,' " ...
Frankly, the majority's reasoning seems to suggest that police can conduct a full, warrantless search of your home if they arrange to arrest you within reach of your front door. Not that they would ever game such a legal rule, of course ...

Judge Kozinski points out the startling implications of the appeals court's decision to let the lower-court decision stand.
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. ...

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 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.
Very well reasoned. Very strongly worded.

But the majority decision in favor of the "fish bowl"still stands.

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Blogger liberranter said...

Would this decision be considered a candidate event for future historians to ascribe as "the death of the American Republic?" Or perhaps the "second shot heard around the world?"

I was also going to add that no part of the Constitution can simply be "overturned" or "obliterated" by mere judicial fiat and that the amendment process prescribed by that document itself must be followed. However, I decided not to for the sake of not wanting to come across as a naive moron.

February 25, 2010 10:05 AM  
Anonymous Anonymous said...

Kozinski is the same Judge who, on September 2, 2009, ordered the preservation of evidence that proved 104 Major League Baseball players tested positive for steroids in 2003. Kozinski made this ruling after the Ninth Circuit Court of Appeals ruled that federal agents incorrectly seized information on 104 players when the warrant authorized that only authorities could get information on 10 players. So, where was the 4th Amendment in that case, Kozinski?

Look at this guy's background, the kid grew up a committed communist (in his own words). Kozinski was born 1950 in Bucharest, Romania but his parents, both Holocaust survivors, brought him to America in 1962 when he was 12. They settled in Los Feliz, Los Angeles and his father, Moses, ran a small grocery store there. According to Kozinski, he was a "very committed communist" while a boy in Romania, and he was eager to move to the United States to "educate workers of the West that they were being enslaved by capitalist exploiters."

I'd do a little more exploring about the people who are making proclamations that the 4th Amendment is dead before promoting this as a fact on your blog. Sometimes, this stuff is nothing more than propaganda to try to convince the public that the 4th Amendment is indeed dead.

February 26, 2010 7:53 AM  
Blogger J.D. Tuccille said...


Kozinski was a communist -- when he was 12. He's now considered the most libertarian -- not just on civil liberties, but also economic liberties -- jurist in the Ninth Circuit. I don't agree with his every opinion, but if you're looking for a better advocate for individual freedom and limited government in the federal courts, you'll look long and hard.

February 26, 2010 12:41 PM  

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