Boston's Door-to-Door Searches Weren't Illegal, Even Though They Looked Bad

The Atlantic Wire ^ | Apr 22, 2013 | Philip Bump

[EternalVigilance]

There were two components to last week's shelter-in-place request in Watertown, Massachusetts. The first was a request that people not to leave home. The second was a door-to-door search by heavily armed law enforcement officials. Those are two very different things, with different implications. But neither was illegal.

[IamConservative]

You just saw martial law without anyone actually declaring it.

What we saw was what Benjamin Franklin warned us about. We saw people willingly sacrificing their liberty for security.

I was also unnerved by the talk of trying the 19 year old in a military tribunal and not reading him his Miranda rights. What he did was heinous for certain, but he is a citizen. No matter the crime, we must demand citizens be treated as innocent until proven guilty or we will find ourselves answering to a tyrant.

[Clump]

Those searches are illegal. I'm a defense attorney and this is my take.
If the SWAT shows up with heavy force like this and overcomes the will of a person to refuse consent, or brings the voluntariness of the consent into question (uh yea this would be a textbook case of that) then anything found during the search like “illegal guns” or drugs would inadmissible at trial should they be charged.
Now, if they identified the Muzzi on the street and he ran in the front door of a house, then that would be actual “exigent circumstances”. Or if they had some other information regarding his location that had an indicia of reliability then that would probably be okay.
What we really have here is what I call the “24 scenario”.
There's no incentive (in the mind of law enforcement) to give a damn about the Constitution if the goal is ultimately to prevent an attack and a criminal prosecution is far down the list of priorities. Classic examples of this are all throughput the show 24. In those fictional instances, Jack Bower could have cared less if a suspect made incriminating statements or evidence was found that would technically be suppressed at trial for violation of the 4th, 5th, 6th, or 14th Amendments. All he wanted was to stop a nuke from going off (or name your other worst case threat).
In that case he might face potential civil liability down the line, but who cares and it's unlikely anyway.
My point is that they can get away with this because (presumably) they weren't going in to these houses to do general searches on a fishing expedition. I say presumably but I'm not confident this is necessarily the case. The authorities aren't releasing any details about whether anyone refused, and if they did how the police responded. They are about as transparent as the zero administration.
They certainly violated the Constitution by doing these door to door searches. Not a single “consent” given could be determined to be voluntary under those circumstances should someone challenge it.
Furthermore the authorities have made terror attacks much more likely now.
They have the two for one bonus of terrorizing the masses with bombs and then having the people who are sworn to serve, protect, and uphold the Constitution giving the people a second helping of terror by an incompetent police state.
The bottom line is that the areas they searched are not known for their heavily armed populace.
If the 2A isn't being utilized by the people then the 4th is without a paddle.

[cuban leaf]

Laws are very black and white - binary. I’m no expert on the laws here but I’m going to guess that they did not enter any homes without the homeowner’s permission. That makes at least that part of it legal. And anything searched that can be seen from a public vantage point can be searched as long as they don’t open things, etc.

This is all just my opinion. Bottom line for me is that it did look bad, but looks can be deceiving.

[muir_redwoods]

A valid point to be made is that the cops found no one. It was a Watertown resident who found Tzarnaev once the shelter-in-place order was lifted. The cops apprehended him once a’resident told them where he was. The whole search effort produced nothing.

[Clump]

Not to argue with anyone but I am a defense attorney and former prosecutor and you can see my take on this at post 82. FWIW.

[blu]

Good thing you admitted right up front that you are not a lawyer. Neither am I, but I do know a few things.

1. I heard the “shelter in place” announcements. They were not ordering, they were asking that everyone stay where they were. Eventually (before the perp was caught) they semi-lifted the order, even telling folks to take a cab if necessary -I remember thinking “wow, those cabbies are gonna make out like bandits!”

2. The bad guy was found 2 blocks outside the perimeter (I wonder...did Chloe set that up?). Think about it..you have at least one suspect, known to be heavily armed and on the run...would YOU be out walking your dog? The term “exigent circumstances” fits perfectly here. It means there’s a public danger, a HUGE danger...and it also means there were probably a dozen prosecutors on the phone telling the LE that it was ok to search the homes. When there is a public danger, IT IS OK to try to protect the public, ie: find the bad guy. I would have had no problem letting the police search my house...with me at their side, and my Shield at MY side. It’s all about the exigent circumstances.

But what do I know? I’m not a lawyer, a cop, a prosecutor, or a terrorist.

[palmer]

It's absolutely legal to enter with the owner's permission. Once the owner gives permission they can legally tear open anything they want.

And anything searched that can be seen from a public vantage point can be searched as long as they don't open things, etc.

Anything in public view can be searched and the definition of what is in public view can be stretched. For example, the cops might see a random hunk of metal in someone's back yard as they look from the street. On that alone, they would be justified to enter and look for the terrorist. What they cannot do is enter anyone's property without permission or a reason such as hot pursuit or a hunch or a glimpse of something. A door-to-door search (without willing permission from each homeowner) is clearly illegal.

[palmer]

The term "exigent circumstances" fits perfectly here.

No it does not. The exigent circumstances are clearly spelled out in case law. You need to read up before posting.

But what do I know? I'm not a lawyer, a cop, a prosecutor, or a terrorist.

Nor have you read a minimum amount about it. That would have informed you that the only plausible exigent circumstance here was hot pursuit and once they lost the perp that was no longer applicable.

[cuban leaf]

Nope. According to the article: “If there are exigent circumstances, like the threat of imminent danger, a warrant isn’t necessarily needed, but the police must still have probable cause.”

And: “The gentleman here (if you can call him that) notes that both times his house was searched the law enforcement officers “asked” permission to do so, but he didn’t feel like he had much of a choice as the police team had guns pointed at his face.”

See post 11 as to how to deal with this. It is legal for police to use all sorts of verbal intimidation up to a point. They do it all the time and have since police departments were first created. The point of our constitution is to clarify when they have crossed a line from legal behavior to illegal.

Each of us, from time to time, is called upon to do his small part to protect our constitution. As one poster said, this would have gone down very differently in Texas. It would have in my state (KY) as well. My response to the cops would have been “I’ve already done a search. He’s not here.”

[Chipper]

I tend not to follow the examples of majority Democrat voters. Watertown, NYC, NY State, California, Colorado, etc. Just because they cheer at this treatment doesn’t make it justifiable.

[Clump]

I am a lawyer and you are basically correct. Even probable cause isn't good enough to go in without either a warrant or consent. Now if they saw him run into an unknown house with a gun and believed there to be danger to the residents then we have exigent circumstances. But it's not wise to rush in during a potential hostage situation anyway.
Otherwise you surround the house and ensure hat he can't escape. Determine the ownership of the home to make sure the perp doesn't live there. If he does then get a warrant and go in. The only reason for a big rush is if getting to him faster would prevent another attack which I known to be imminent. That would be exigent circumstances.
And I doubt any “consent” given by a person staring into two dozen gun barrels would be deemed to be given voluntarily (at least under Texas law).
If someone robs a bank down the street from me about two miles, and kills several people then goes on the run, I can guarantee you the police can't use that as exigent circumstances to overcome my right to refuse consent to enter and search. Around here where I live in Texas they wouldn't even dream of it.
They have to do actual police work and investigate because they can't use the need to catch a suspect as a basis to trample the Constitution. There are rules for dealing with emergencies, and they are more than adequate.
Such an abuse and not to mention an inefficient use of resources to go about it this way.
I can't fathom how an entire city just obeys like that. How many big cities right now DON'T have a wanted murderer on the loose?
Is everyone in the city subject to search because of exigent circumstances?
HELL no!

[wxgesr]

A wounded perp runs out of a shootout bleeding and no one can track him to the boat?
No dogs?

[Uncle Chip]

Apparently, not even the ACLU can find anything illegal about the searches that were done in Watertown, MA.

So then the ACLU is your measure of legality???

[ItsOurTimeNow]

>>Get used to this. House to house warrantless searches just became the norm. They will just keep ratcheting down the reasons until barking dogs are enough justification. You just saw martial law without anyone actually declaring it.<<

Bingo.

“What happens next time?” is the question we should all be asking. They got to do it once, and you can bet they’ll not let the power-trip subside.

[Travis McGee]

[Travis McGee]

Thank you. Even on FR, a lot of folks like to assume the supine posterior position anytime jackboots and guns are around.

[Do Not Make Fun Of His Ears]

For a supporter of jackboot thugs, you sure chose an ironic name.

Shame on you.

[JoeProBono]

[Do Not Make Fun Of His Ears]

If you can’t see how this abuse will be broadened by this and future administrations to completely wipe away our fourth amendment rights, you are truly a dim bulb.

[bert]

I have a friend who collects knives.

He actually has one of the Swiss army knives depicted. It has I believe 141 blades(tools). It came with a certificate providing testimony that the Guinness Book of World Records declared it to hold the record for the most blade