Posted on 03/30/2004 7:08:02 PM PST by Churchjack
NEW ORLEANS- A federal appeals court has opened the door for police officers in three states to search homes and buildings for evidence without a warrant - a ruling that two dissenting judges called "the road to hell."
Acting on a Baton Rouge case, the 5th U.S. Circuit Court of Appeals ruled that police do not need an arrest or search warrant to conduct a swift sweep of private property to ensure their safety.
Any evidence discovered during that search is admissable 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 might be dangerous.
In the majority opinion, Judge William Lockhart Garwood wrote that any in-home encounter poses a risk to police officers, even if it is simply to interview someone.
The American Civil Liberties Union called the decision dangerous.
And dissenting judges argued that the ruling creates another exception to constitutional protections against unlawful search and seizure, quoting the adage that "The road to hell is paved with good intentions." The 11-4 ruling affects Louisiana, Texas, and Mississippi and 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.
The opinion noted that a similar standard has been adopted by four other federal circuit courts of appeals.
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 making threats to judges and police.
Deputies went to his trailer with no search or arrest warrant but were invited into the trailer by another resident. During a search for Mr. Gould, the deputies found three rifles.
A lower court barred the use of the guns as evidence because they were obtained illegally. The 5th Circuit upheld that decision, but it encouraged prosecutors to request that the court reconsider precedent.
ROLL CALL:
1st Amendment: Dead on all counts.
2nd Amendment: Dead. Dead. Dead.
3rd Amendment: Alive and kicking.
4th Amendment: Dead on all counts.
5th Amendment: Dead on some counts.
6th Amendment: Dead on some counts.
7th Amendment: Effectively dead (jury-stacking).
8th Amendment: Your call.
9th Amendment: Dead.
10th Amendment: Dead and forgotten.
This "noble experiment" is dead, people!
("What'cha gonna do? / what'cha gonna do? / when they come for you?")
"Out on the Bayou..." Let the crabs have 'em. Or feed-the-hogs.
"Unintended Consequences" coming to a parish near you - soon...............FRegards
Sad but hopefully not completely true.
Why would you want to make a "quick sweep" of someplace you thought was dangerous? Wouldn't you want to take your time and be careful? The best way for the police to make sure my private property is safe for them is to knock and say, "Hi, its the police. Let's talk." Any other course of action might be treated like an assault or sneak attack. Particularly if I wasn't guilty of anything and had no reason to expect a police visit.
I hate to risk starting a flame war but I can't help but observe that much of the erosion of the Bill of Rights has been thanks to the drug war and now, of course, the war on terror. In particular, the drug war requires law enforcement to stop behaviors where all parties involved are consenting. That is a lot harder than stopping robbery. So the only way to get evidence is to push the limits of liberty, specifically search and seizure and more generally all the enumerated rights.
Don't get me wrong, I don't approve of drugs and I would shoot a terrorist on sight. It's just that crises is used by politicians as a justification for curtailing liberty. And the public laps it up. After all, "if you've got nothing to hide you have nothing to fear" except continuous harrasment by some cop or judge that dislikes you personaly.
That's the way these kinda things actually work in real life, intentions of the "framers" aside. It only benefits, actually it establishes, a ruling class, that includes the elected, the unelected, and the bureaus of enforcement and regulatory employees.
It's abusive (I'm sorry, it's an "exception") of a natural right, and it's practical excercise is tailor-made for patronage and extortion. We're dependent on the whims of our betters now....
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