Bye Bye 4th Ammendment
March 29, 2004 6:54 AM   Subscribe

Are we witnessing the end of the 4th Ammendment protections against unreasonable search and seizure? The United States 5th Circuit Court of Appeals has ruled (parts 1 and 2) that police in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.
posted by Irontom (31 comments total)
Did this hit the major news outlets last week and I somehow missed it?
posted by Irontom at 6:55 AM on March 29, 2004

Holy mother of god....this is some really scary news. I haven't seen it anywhere else. Wow.
posted by dejah420 at 6:57 AM on March 29, 2004

posted by techgnollogic at 7:16 AM on March 29, 2004

posted by RylandDotNet at 7:20 AM on March 29, 2004

I meant Eurasia. Dammit.
posted by RylandDotNet at 7:23 AM on March 29, 2004

Slightly better link.

And, techgnollogic, I think that is what this means.
posted by trharlan at 7:23 AM on March 29, 2004

This ruling pertains to whether or not officers who have freely been given access to a residence - who do not have a search or arrest warrant, but are given permission by a person with the legal capability to allow them to enter a particular area - can perform a brief "protective sweep" of that area to assure that nobody's hiding under a bed with a shotgun. This doesn't allow officers to search through your drawers or seize your computer, assuming someone let them into the house to begin with.

This doesn't allow anyone to break down anybody's door and go through their shit. In fact, it doesn't allow officers to perform a protective sweep if there's not a reasonable expectation of danger. This also doesn't allow cops to search your garage if they arrest you hiding under a bed with a shotgun on the other side of the house.

This only pertains to what conditions are necessary fo perform a protective sweep: that there's a condition of danger in the location being swept, and that the cops are on the premises legally whether by search warrant or consent.
posted by techgnollogic at 7:28 AM on March 29, 2004

There's A Bit More Here as well.

The desent says the majority opinion unhooks "the “protective sweep” from its connection with the execution of an arrest warrant in a home, which is where the Supreme Court framed the concept. In my view the gambit of getting permission to enter a citizen’s home in order to talk to someone and then conducting a
protective sweep search under the guise of sensing danger to the investigating officer will effectively eliminate the need for complying with the Fourth Amendment and at that point we will all be, literally and figuratively, on the road to hell.

So this "creates a new exception to the Fourth
" which, depending how you interpert that, means it's either just an exception, or "the road to hell".
posted by Blake at 7:28 AM on March 29, 2004

Hopefully some "activist" judge will rule this thing unconstitutional.
posted by RylandDotNet at 7:28 AM on March 29, 2004

Hopefully some "activist" judge will rule this thing unconstitutional.

Or some judge who understands simple English. For fuck's sake.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
posted by trharlan at 7:35 AM on March 29, 2004

If I don't do anything wrong, I don't have anything to worry about, right? Right?

Seriously, though, this is not a new idea. The D.C., 6th, and 9th Circuits have all upheld searches under similar circumstances. Further, the cases in which the courts have indicated that protective sweeps must always be incident to arrest, are mostly ones involving situations where the entry into the house was itself illegal. Read the opinion for a much more nuanced understanding of the issues and law.
posted by monju_bosatsu at 7:39 AM on March 29, 2004

Why don't they just interview people outside if they're worried about their saftey?
posted by delmoi at 7:45 AM on March 29, 2004

Also, I have an intresting story to share

One sunday, a friend of mine and some of her friends were smoking weed/drinking at one of her friends houses in a small Iowa town near Iowa City, similar to the one her Mother was the Mayor of.

Cops come by and say they are looking for another one of their friends, who they claimed had just robbed a bank. The asked if they'd seen the guy (who had infact been there earlier in the afternoon).

They told the cops that they had not seen him. But the cops persisted. They wanted to go in and search the house, and of course her friends said "no." This whent on for a while, they left and then came back. Saying things like "we know you've just got weed in there, it's not big deal," and so on. They tried calling their friend, but were not able to get a hold of him.

Finaly, the cops left. The next day, it turned out that the guy the cops had been "looking for" had been in jail on a public intox charge the whole time, after having passed out in his car.

Now, what would have prevented police from searching my friends friends house under this ruling, after all they were there to 'interview' them. I mean fuck.
posted by delmoi at 7:52 AM on March 29, 2004

This isn't just Louisiana. The ruling affects Texas and Mississippi too. As for it not allowing cops to search a garage if you're hiding on the other side of the house--sure. right. The cops aren't going to want to make sure the perp isn't hiding in the garage.

Those of you brushing this off disappoint me. What's now possible is, if a cop comes to the door to ask some questions, they will search your house for evidence. This unlocks the mother of all fishing expeditions. What are you going to say in court? "Your honor, I never invited them inside! They came to the door and barged in!" Is the judge really going to believe someone--with the evidence against them already entered into the record--or the cop, who says he was invited inside to ask some questions? Or who says he thought, as he was standing outside, he saw someone moving at a window with a gun. So, see, he had to search the place because he didn't feel safe. And, oh, look, he found a whole bunch of illegal stuff, too. It's not like the police are vampires. It's not like, if the owner of the house hasn't legitmately invited them in, they simply won't enter and search. Texas, at least, of those 3 states, has a long and illustrious history of evidence tampering.

Techgnologic, despite your screaming, you are wrong. The poster said exactly what this ruling allows. Police no longer need a search or arrest warrant to conduct a brief search. I bet you're the type of person who thinks a Terry pat is only used to check for weapons.
posted by jbrjake at 7:56 AM on March 29, 2004

delmoi: Exactly. If you ask to come inside to talk, and I say yes, I shouldn't automatically have to give you permission to search. If you're so afraid of me that you have to search my house before you can chat, then let's just stay outside. "You can come inside" means you can come inside, not "You can come inside and go through my shit."
posted by cameldrv at 8:04 AM on March 29, 2004

Cops are like vampires. Don't invite them in to your house!

It's not the end of the world, but it is yet another exception to the 4th Amendment. There was already a case that made it okay for the police, while conducting a lawful arrest, to search the premises for people that might be a danger to officers (I can't remember the name of it, but it overturned an earlier case that said that the police could only search the area in direct control of a suspect while conducting a lawful arrest), so this case kind of follows that precedent--allowing warrantless searches for the "safety" of officers.

Before Mapp v. Ohio instituted the exclusionary rule (evidence gathered as a result of a search that violated the 4th amendentment is excluded from trial), the 4th Amendment didn't have many teeth, anyway. It's kind of like we're on the crap end of the pendulum swing again, as the courts decide that exception after exception is okay. Eventually, the public opinion will change, we'll get tired of letting the police stomp on our 4th amendment rights, and we'll overturn these cases, too. I hope.

Which isn't to say that I'm not pissed as hell about this decision, of course.
posted by jennyb at 8:23 AM on March 29, 2004

No intention of hijacking this thread, but what should a citizen who wants to help but distrusts the police do whan the law shows up at the front door?
posted by trharlan at 10:08 AM on March 29, 2004

No intention of hijacking this thread, but what should a citizen who wants to help but distrusts the police do whan the law shows up at the front door?

never, ever, ever let a police officer inside your home. rulings like this one notwithstanding, it has long been the case that anything an officer can see in plain view within your home can be introduced as evidence against you. officers will frequently use this as a gambit ("the knock-and-talk") to gain access to a residence: suspects don't want to appear uncooperative and don't realize they are essentially waiving their rights simply by inviting the officer in. it's a fine civic duty to assist a law enforcement officer as best as you can; it's an even finer civic duty to protect your civil rights by doing it on the front porch instead of in your living room.
posted by kjh at 10:35 AM on March 29, 2004

never, ever, ever let a police officer inside your home...they are essentially waiving their rights simply by inviting the officer in...protect your civil rights by doing it on the front porch.

Good and well, and I'm grateful. Could opening the door be construed as an invitation to enter my home? When the police knock on my door, should I hold up my forefinger in a "just one moment" gesture, exit via my back door, walk around the outside of my place, and meet the fuzz on my front porch?
posted by trharlan at 10:52 AM on March 29, 2004

"When the police knock on my door, should I hold up my forefinger in a "just one moment" gesture, exit via my back door, walk around the outside of my place, and meet the fuzz on my front porch?"

My god, trharlan, you took the thought right out of my head!
posted by PigAlien at 11:20 AM on March 29, 2004

Whatever you do, don't start waving a NORML card around and insisting that you have friends in high places.
posted by rks404 at 11:22 AM on March 29, 2004

trharlan: No, opening your door is not an invitation for them to come in. However, with the door open long enough for you to get outside, much more of your home is then in "plain view", so make sure you don't have a meth lab sitting on your living room table when you open the door.

In any case, I have a question for all of you. Have any of you actually had the police show up at your door, explicitly request access to your residence to "have a look around", and you tell them No? I have, and let me tell you, it wasn't pretty. When I said No, they called immediately for backup, frisked me, asked for my ID, and instructed me to sit cross legged on the pavement with my hands in plain view. Six officers standing out in front of my house trying to convince me that if I didn't let them in, that I was giving them de facto probable cause, because they couldn't imagine any reason I wouldn't let them in unless I was hiding something illegal. Fortunately, I have an attorney, and when they realized the phone call I'd made was to him, the cops literally evaporated before my eyes.

The fascinating thing was, they were only there because I had called for an ambulance for my roommate, as he'd fallen on a slick rock outside and hit his head--he was bleeding and all. He was outside when they got there, as was I. There was no sign on either of us of a fight, I was completely sober, the house wasn't broken into, etc. Even so, as soon as I declined to let them look, they became immediately suspicious.
posted by Swifty at 11:22 AM on March 29, 2004

I don't know if I buy this as a huge blow against the 4th. More like an incremental swipe. The guy gave consent for the search after he was in custody. True the cops knew he had the guns by that time, but I suspect there would have been more chance of this evidence being thrown out by a lower court if he never agreed.

That said, and at risk of a slight derailment, I still can't get over the Martha Stewart trial. The woman is innocent of insider trading, yet guilty of lying to a federal investigator about it. This seems to me a far more grievous assault on the bill of rights than the search and seizure stuff. We've lost the presumption of innocence. And no one is talking about it.
posted by MetalDog at 12:06 PM on March 29, 2004

MetalDog, I'll take the bait. I fail to understand why so many others fail to understand why this makes sense. Lying to a federal investigator is a crime. She lied to a federal investigator. Therefore, she is guilty of a crime. What's confusting about that? Who cares that she's not guilty of other crimes, including insider trading. That isn't what she was charged with.

As for the matter at hand, yes, the FPP greatly overstates the harm done by this ruling ("the end of the 4th Ammendment protections against unreasonable search and seizure" indeed) but this is a further and significant erosion of the right to privacy and should be taken seriously
posted by Outlawyr at 12:28 PM on March 29, 2004

trharlan: I wouldn't suggest the "just a sec" gesture... as closing the door then reappearing from around the side of the house may just spook the hell outta them — it would me: I'd just assume that you grabbed your gun and were coming around the side to get the better of me.

All this talk of not letting them in sounds like we're talking about vampires.

*shakes head*

Crazy times. Crazy times.

As to the post: I think we've overstated the harm of the ruling... but it sure is a blow.
posted by silusGROK at 12:33 PM on March 29, 2004

Lying to a federal investigator is a crime. She lied to a federal investigator. Therefore, she is guilty of a crime. What's confusting about that?

I'm not sure it's "confusing", but it still sucks. Police lie to a suspect to gain a confession, that's okay, "good policework", even. Suspect (unmirandized!) lies to police, that's grounds for imprisonment? Not fair, and not right. Think about that. Truth at gunpoint.

The police, the prosecutor, and the legal system each terrify me. And I'm a middle-class WASP. I can't imagine how terrifying the system must be to the poor, uneducated, and dark-skinned people of America.
posted by trharlan at 1:07 PM on March 29, 2004

trharlan: No intention of hijacking this thread, but what should a citizen who wants to help but distrusts the police do whan the law shows up at the front door?

The advice to talk it over outside is a good one. Don't consent to searches of any kind. Also in general make sure any visibly illegal activities aren't conducted in your entry way. I'd also recommend you actually have a relationship with a lawyer or law firm. When Swifty's situation happens to you, however unlikely that may be, you already want to know a lawyer.

I tend to the paranoid side but there are unfortunately a couple basic rules for dealing with cops and quasi law enforcement professionals. One: Do not lie. Two: Do not volunteer anything.

Like someone here pointed out in another thread in general you want to be Ken Lay and not Martha Stuart.
posted by Mitheral at 1:16 PM on March 29, 2004

Metaldog, I'm not taking either side of the issue, but I just wanted to clarify that even though Martha Stewart wasn't charged with Insider Trading, that doesn't mean she was found to be innocent. It just means they didn't have enough evidence to prosecute her, so they tried (and succeeded) to get her on something else for which they had more evidence. I would agree with your sentiments in general and must ask the question again - "Where's Kenneth Lay?"
posted by PigAlien at 2:05 PM on March 29, 2004

I read about this yesterday, but I didn't realize that it applied to any state other than Louisiana (the story I read was the first linked above). I was upset about it then, and now I am even more upset, seeing as I live in Texas.

A few months ago, late at night, a knock came on my door, and on my porch stood sheriff's deputy. I stepped out on the porch to chat with her, pulling the door mostly shut behind me (mostly to keep both my cat and the heat in my house). She asked for two people, neither of whom I knew, and I told you that they may have been a part of the extended family that lived here before we bought the house a few months prior, since the last name was the same. Then she started grilling me about where they moved to, did I know where they worked, and so on. Well, no. We'd bought the house from H.V., and the only time I had seen the whole of the family was the day of closing, but I thought they might have moved to Buda (nearby town), though I couldn't even be sure of that. It's not like we sat around at the closing table and discussed these things. She became belligerent, as if I knew more than I was telling her, and asked to come inside, as she heard someone (my husband who was now awake) moving around in the house. I said no, and pulled the door shut. She called for backup. When they arrived, I asked them to please run the plates on the three cars in our driveway and to get on their laptop and search the local tax records. They would then see that the names listed on all these accounts were the two names I had given them as residents of the location, and that Jeremy Whoever-the-hell was no longer living here. They still wanted to come in, and I still said no, and eventually they bought my truthful story that we'd just bought the house, didn't know these people, and that they weren't here.

I wonder though, how it might go differently if the same thing happens again. Will they be able to come in anyway, because they feel it's dangerous (another person moving in the house) and will it be OK for them to do so, because they are there on official business (even though the business wasn't with me)? Also, do I need to be concerned if I ever need to call an ambulance, that law enforcement officials coming into my home may see something illegal (though I can't imagine what)? Should I drag my husband out to the front yard while he's having his heart attack for roadside ambulance pick up for fear that letting them in the house at all will allow them to search the entire premises? Not that I am doing anything illegal, but I don't like strangers puttering around my house and looking at my things, and the laws the way they are now ... just looking at some of the books in my library may lead them to believe I am one of those "evil terrorists".

So yes, this "incremental swipe" at the 4th Amendment concerns me.
posted by Orb at 2:15 PM on March 29, 2004

It was a week before Xmas in 1989. I, my girlfriend, and a friend from out of town had gone out to a Sunday brunch, where we'd eaten glutinous eggs bennie and quaffed a bunch of cheap champagne. When we got home, we found that our apartment had been burglarized. The back window was smashed , the Xmas tree (actually a cast-iron bottle-rack hung with tinsel and ornaments) was knocked over, all the presents had been opened, and everything wearable or electronic was stolen. We called the police. They showed up and came in to inspect the scene of the crime. They took statements from us, looked at the broken window, tsked-tsked about the rising crime rate in our neighborhood, congratulated us on having the foresight to have renter's insurance, and were preparing to leave when one cop turned around.
"What's that?" he asked, pointing to my three-foot-tall bong pipe leaning against the couch.
As he came back in the apartment and I watched in horror as my life dissolved, his partner put a hand on his shoulder and said the coolest thing I've ever heard come out of a cop's mouth:
"When we catch those burglars, we'll be sure to ask them why they left that there."

Now THAT'S protecting and serving.

But I fear that those days are long gone.

(They never caught the perps, though.)
posted by BitterOldPunk at 2:54 PM on March 29, 2004

They change the laws to suit their cause...
posted by LowDog at 6:06 AM on March 30, 2004

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