The Road to Hell is Paved with Good Intentions

A recent 5th Circuit Court of Appeals decision has hit the radar of those of us concerned over the ever-expanding powers of government in (to us) obvious violation of the Constitutional protections written in to limit that power. I first ran across this latest slip down the slippery slope over at Say Uncle, but the Geek with a .45 and John Donovan have also weighed in. What all three of these bloggers have commented on was this news story from New Orleans, home of the 5th Circuit Court.

Court Opens Door To Searches Without Warrants

It's a groundbreaking court decision that legal experts say will affect everyone: Police officers in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.

Leaders in law enforcement say it will provide safety to officers, but others argue it's a privilege that could be abused.
The decision was made by the New Orleans-based 5th Circuit Court of Appeals. Two dissenting judges called it the "road to Hell."

The ruiling stems from a lawsuit filed in Denham Springs in 2000.

New Orleans Police Department spokesman Capt. Marlon Defillo said the new power will go into effect immediately and won't be abused.

"We have to have a legitimate problem to be there in the first place, and if we don't, we can't conduct the search," Defillo said.

But former U.S. Attorney Julian Murray has big problems with the ruling.

"I think it goes way too far," Murray said, noting that the searches can be performed if an officer fears for his safety -- a subjective condition.

Defillo said he doesn't envision any problems in New Orleans, but if there are, they will be handled.

"There are checks and balances to make sure the criminal justce (sic) system works in an effective manor," (sic) Defillo said.

Our reaction to this story is understandable, I think. We're supposed to trust Capt. Defillo's word that "the power won't be abused" though he says "(t)here are checks and balances to make sure the criminal justice system works in an effective manor." (I think the word "manor" might be a highly appropriate freudian slip.) Yes, we're supposed to trust our overlords who just removed one of those "checks and balances" - checks and balances that aren't there to ensure the criminal justice system works effectively, but there to ensure that the rights of the individual are protected against government abuse. And these words come from a spokesman for a police department with a serious record of corruption. This is not encouraging.

I've just begun reading Professor Randy Barnett's latest book, Restoring the Lost Constitution, which opens with the following:

Growing up, I was like most Americans in my reverence for the Constitution. Not until college was the first seed of doubt planted in the form of an essay by a nineteenth-century abolitionist and radical named Lysander Spooner. In his best-known work, No Treason: The Constitution of No Authority (1870), Spooner argued that the Constitution of the United States was illegitimate because it was not and could never have been consented to by the people on whom it is imposed. Although as an undergraduate I found Spooner's argument unanswerable (and I must admit so it remained until I was in my forties), the problem was largely theoretical. My mind may have doubted, but my faith remained.

Until I took Constitutional Law at Harvard Law School. The experience was completely disillusioning, but not because of the professor, Laurence Tribe, who was an engaging and open-minded teacher. No, what disillusioned me was reading the opinions of the U.S. Supreme Court. Throughout the semester, as we covered one constitutional clause after another, passages that sounded great to me were drained by the Court of their obviously power-constraining meanings. First it was the Necessary and Proper Clause in McCulloch v. Maryland (1819), then the Commerce Clause (a bit) in Gibbons v. Ogden (1824), then the Privileges or Immunities Clause of the Fourteenth Amendment in The Slaughterhouse Cases (1873), the the Commerce Clause (this time in earnest) in Wickard v. Filburn (1942), and the Ninth Amendment in United Public Workers v. Mitchell (1947).

Nor were these landmark decisions isolated cases. In countless other opinions, the Supreme Court justices affirmed they meant it when they said the Constitution did not mean what it apparently said.

Now, bear in mind IANAL (I Am Not A Lawyer), but I've read a LOT of case law over the last ten years or so in my study of the legal history of the right to arms and other rights of the individual, and I've found precisely what Prof. Barnett describes here - a slow but steady erosion of the power-limiting restrictions of the Constitution until the Constitution really doesn't mean anything any longer as far as a restriction on government power. Just two weeks ago my opinion was validated by Justice Antonin Scalia, who said during a speech in New Orleans:

It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.

We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.

Knowing what I know about the accuracy of the press, I decided that I should once again go straight to the source, and read the decision to determine for myself just how bad it was. The case is U.S. v. Gould, and the decision was published last Wednesday. It was an en banc re-hearing by fifteen justices, including justices Garwood and DeMoss, who found in U.S. v. Emerson that the Second Amendment protected a right of the individual - the first rollback of any kind regarding judicial protection of the right to arms in any Federal court since 1939.

The basics of the case are relatively simple:

Louisiana deputy sheriffs, having received on October 17,2000, a telephone warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges, went that same evening to the approximately 14 x 16 foot trailer where Gould lived to talk to him, not then intending to arrest him. The officers, who had neither a search nor an arrest warrant, were admitted by another resident of the trailer, Dennis Cabral, who said Gould was asleep in his bedroom. The officers entered and proceeded down the hall towards the bedroom Cabral had indicated. The bedroom door was open, but the officers did not see Gould, and they then conducted a brief protective sweep for him, looking under the bed and opening the door to each of the two bedroom closets, in one of which they saw in plain view, but did not then seize, three rifles. They promptly then ran outside and later found Gould hiding in the woods. In subsequent questioning Gould stated he was keeping the rifles for their owner, a female acquaintance. Gould was then arrested, executed a consent to search, and the rifles were then seized.

Straightforward, no? The cops caught a known violent felon with some guns who had threatened to kill some judges. Score one for the good guys, right? Letting this guy go would have, once again, proven that the courts are "soft on crime," but they did the right thing and now this asshole is behind bars where he ought to be. Right?

The decision goes on some 32 pages, citing case after case of precedent before concluding:

We hold that a protective sweep as authorized by Buie (Maryland v. Buie (1990)) need not always be incident to an arrest. The district court erred in holding otherwise. Applying the standards and limitations articulated in Buie and the general reasonableness criteria of the Fourth Amendment, we conclude that the protective sweep here was valid. The district court’s suppression order is accordingly REVERSED.

This was not a unanimous decision, obviously. No, it was 11-4. There are 30 pages of dissent, and Justice DeMoss's (who was joined by Justice Smith) is the most eloquent and detailed. It starts at page 44 of the opinion, and I strongly recommend that everyone interested in individual right read the whole thing to see the mechanism of incrementalism thoughtfully dissected. Excerpts:

This case presents the difficult issues of: (1) whether the protective sweep exception defined by the Supreme Court in Maryland v. Buie, 494 U.S. 325 (1990), is limited to situations involving the execution of an arrest warrant as we held in United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994); and if not (2) whether the search in this case was reasonable. In addressing these two issues, I think the majority makes three significant errors. First, the majority’s starting point in its Fourth Amendment analysis concerning a warrantless search of a home is faulty and therefore the majority does not fully account for the lack of consent in this case. Second, the majority’s reliance on the so-called "clearly" legitimate "knock and talk" police investigatory tactic is misplaced and therefore the majority’s holding leads to an end-run around the Fourth Amendment’s protections. Third, the majority has misconstrued the holding of the Supreme Court in Buie. I will address these three errors in order.

I.

The Fourth Amendment provides: 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.

U.S. Const. amend. IV. Further, "[i]t is a 'basic principle of Fourth Amendment law' that searches and seizures inside a homewithout a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 477-78 (1971)). Additionally, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313 (1972). Accordingly, our law dictates that unless some exception applies, the search at issue in this case, a warrantless nonconsensual search of Kelly Gould’s bedroom in his home, must be found unconstitutional.

Justice DeMoss goes on for a while documenting his position in detail. On to error number two:

In satisfying its first requirement of this newly created exception to the protections afforded by the Fourth Amendment, i.e., that the officers were legally present in the mobile home, the majority relies on the "knock and talk" police investigatory tactic mentioned in United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). The majority refers to this practice as being "clearly... recognized as legitimate." The "knock and talk" tactic is hardly well-established law. The Fifth Circuit case establishing the concept of "knock and talk" merely states that "[t]his investigative tactic is not inherently unreasonable." Jones, 239 F.3d at 720.

Use of the "knock and talk" tactic may be reasonable in some cases, e.g., police may follow-up on a lead and approach a citizen, seeking the citizen's cooperation. In this case, however, the officers conducted an intrusive search of a bedroom with neither consent, nor search warrant, nor arrest warrant, nor any exigent circumstances. The majority has created an exception that permits an officer to ask for permission to enter a home from a third party who may have authority to consent to only part of the home but not all of the home and then immediately contend that he, the officer, is so apprehensive about his own safety that he must conduct a protective sweep of areas where he has no consent to be, when the officer had no obligation or duty to enter the home in the first place. This new exception is really a "knock, enter, maybe talk, and search" police investigatory tactic, all conducted without a warrant, and resulting in an end-run around the protections afforded by the Fourth Amendment.

In addition, the majority has not stated why their new exception is necessary or why we should not find that the officers created a situation that resulted in a Fourth Amendment violation when they in fact had many other permissible ways to pursue their investigation, i.e., seeking a search warrant based on the informant's tip. The majority does address the issue of exigent circumstances that can sometimes make a warrantless search permissible. This search, however, as the majority agrees, is not based on any exigency.

Again, justice DeMoss goes on to make his case eloquently. Finally, error number three:

We decided to review en banc the Gould case to determine: (1) whether the rule established in Wilson that a protective sweep of a home was limited to an arrest situation, as defined by the Supreme Court in Buie, was correct; and (2) if the protective sweep exception to the search warrant requirement is not limited as Wilson and Buie indicate, whether the warrantless search of Gould's bedroom was reasonable.

The majority characterizes the rule outlined in Wilson as a "bright-line" rule; Wilson, however, directly follows the precise language used by the Supreme Court in its definition of the protective sweep exception in Buie. The protective sweep exception as outlined in Buie requires the following three elements. First, the officers must be executing an arrest warrant in a suspect’s home. See generally Buie, 494 U.S. 325 (mentioning over 65 times the concept of arrest in a home when defining a protective sweep). Second, the officers must perceive some danger from another person or persons. Id. at 332-36 (indicating that not every in-home arrest will justify a protective sweep and listing several factors that are used to validate the reasonableness of the perceived danger, such as the nature of the crime for which the arrest is being executed, the likely presence of cohorts, and the time and place of arrest). Third, the search may only be a quick and limited cursory inspection of those places another person might be hiding. Id. at 335-36. Here, the majority has ignored the first two elements and only addressed the third. (Which in my reading of many cases tends to be true. That and the - sometimes apparently deliberate - misreading of cases used as precedent.)

Of course, there is good reason for the limited definition as outlined in Buie and tracked by this Court in Wilson. Such a definition avoids the quagmire that the majority finds itself in after rejecting the language in Buie and Wilson. The majority is forced to fashion a new exception with alternative elements that are vague; and as such the new exception swallows the rule that a warrant is generally required for an in-home search.

--

(T)he element that the officers must be executing an arrest warrant in a home in order to conduct a protective sweep cannot be so easily disposed of and an alternative substituted for it. As the Buie court noted:

The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on the-street or roadside investigatory encounter.... A protective sweep... occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s "turf."

In place of this element the majority substitutes the following element: the police presence in the home must be for a legitimate law enforcement purpose. The majority's element is an inadequate substitution. There are many legitimate law enforcement purposes that may permit officers to do something short of conducting a warrantless search, e.g., enter a home for the purpose of talking to the person who gave the officers consent and had authority to consent to the entry. Such a legitimate purpose does not somehow give the officer carte blanche to then search the house. In the protective sweep situation, as defined by Buie, the officers must have more than a legitimate purpose to be in the home, the officers must have a compelling reason, i.e., be in the house under the obligation to execute an arrest warrant. This requirement is, in fact, the essence of the Buie holding and this requirement is a limiting factor on the officers’ conduct that is missing from the majority's opinion.

So, once again we have an example of what 9th Circuit Justice Alex Kozinski described in his dissent to the decision not to rehear Silveira v. Lockyer:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet...and that "persons, houses, papers, and effects" also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

They're obviously able to do the same thing with prior case law, as well.

But here's the kicker in the dissent that really got my attention:

Finally, in my view this case should have never been prosecuted in federal court. The original criminal conduct which precipitated the arrest was strictly local in nature: one Louisiana resident (Forehand) reported to the sheriff of one Louisiana parish (and not to the FBI, the DEA, the ATF, or the U.S. Marshall Service) that another Louisiana resident (Gould) had made oral threats to kill two Louisiana judges (not federal judges) and some other Louisiana residents (not residents of another state) apparently because of a proceeding of some sort in a Louisiana court (not a federal court) relating to a state law claim (not a federal question). If the admonitions in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000) about drawing a line between local and national interests have any meaning at all, then this criminal investigation would have undoubtedly fallen on the local side of the line. All of the law enforcement actors in this case were state officers.

Furthermore, I think it would be ridiculous to conclude that the firearms found as a result of a warrantless search in Gould’s closets in Gould’s bedroom in Gould’s trailer home in the woods of rural Louisiana had any effect whatsoever, much less a substantial effect, on interstate commerce as Lopez and Morrison require for a federal prosecution.

The events which precipitated this case occurred on October 17, 2000. The federal indictment in this case was not handed down until August 9, 2001, more than 9 months later, which clearly indicates that the federal indictment was an afterthought.

--

...I would suggest that the following conclusions should be readily drawn:

A.

The dismissal on March 5, 2001, of the state solicitation for murder charge for "no probable cause" pulls the rug out from under the government’s assertion that Gould’s "threats to kill" were sufficiently real and immediate to justify talking with him even without any warrant; and

B.

The decision of the state court on July 25, 2001, to grant Gould's motion to suppress pulls the rug out from under the subsequent federal indictment based on identical facts; and should have been disclosed to the federal district court addressing the federal suppression hearing. Had it been, the federal district court might well have based its decision on the alternate ground that the state had already ruled the seizure of the firearms was unconstitutional.

In summary, the Fourth Amendment is the keystone that holds up the arch of our Bill of Rights which in turn is the unique contribution of our founding fathers to our system of government which has now survived longer than any other representative government in the world. In his famous dissent in Olmstead v. United States, Justice Brandeis called privacy - which he defined as: "the right to be let alone" - "the most comprehensive of rights and the right most valued by civilized men." Justice Brandeis argued that the framers knew that Americans wanted protection from governmental intrusion not only for their property, but also for their thoughts, ideas and emotions. Take away the Fourth Amendment and the right of privacy disappears.

The deputy sheriffs here in Gould made no attempt to develop a sworn affidavit in writing from the purported informant, Forehand, and they therefore made no attempt to get either a search warrant or an arrest warrant from an independent third party magistrate on the basis of probable cause. I have no doubt that the deputy sheriffs believed that they were acting reasonably and with good intentions. But the old adage warns us that "the road to hell is paved with good intentions." In my judgment, that is precisely where the majority opinion wants to put us - by unhooking 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.

It has been a continuous theme on this blog that I believe that, through a slow but steady incrementalist approach, we have been stripped of the rights we as individuals are supposed to have under the Constitution as it was originally framed. This is the "slippery slope" argument, perhaps now the "road to hell" argument, and it is not limited to just the right to arms. Decisions like this one are but larger blips on a radar screen that is completely fuzzy with the chaff of earlier, less alarming but prerequisite decisions. We've had over 200 years of case law to fold, twist, spindle and mutilate to get where we are today.

I cannot put it more plainly - our freedoms are disappearing, and they are doing so through the conscious and unconscious machinations of all three branches of government, and in the majority with "good intention" on the part of the lawmakers and the judges who interpret those laws. Justice Brandeis also said in Olmstead,

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

We are frogs in the pot, but the mechanism that turns up the heat is human nature - the desire for immediate safety and security, without regard to future effect. In this case, a known violent felon was found to be in possession of firearms after he allegedly threatened to kill. He's off the street, we're all safer. But we're all less free than we were on March 23.

In University of Texas Law professor Sanford Levinson's Yale Law Journal article The Embarrassing Second Amendment he wrote:

One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forbearers. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent. The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state. The development of widespread suffrage and greater majoritarianism in our polity is itself no sure protection, at least within republican theory. The republican theory is predicated on the stark contrast between mere democracy, where people are motivated by selfish personal interest, and a republic, where civic virtue, both in common citizen and leadership, tames selfishness on behalf of the common good.

Yes, our Constitution was written by men with an inherent distrust of the State, and it was written as a mechanism to limit the power of the State in favor of the rights of individuals, but that mechanism has failed. As Professor Barnett puts it in the introduction to Restoring the Lost Constitution:

Had judges done their job, this book would not need to be written. Since adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power.
--
Without these missing clauses, the general scheme of the Constitution has been radically altered, which is precisely why they all had to go. The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers.

Captain Marlon Defillo of the NOPD tells us not to worry, the new police power to search without a warrant won't be misused. Trust us, we're from the government, and we're here to help you. If you haven't done anything wrong, you have nothing to fear. It's for your safety and security that we take another bit of your rights away. You're not responsible enough for them, anyway.

Let me conclude with another bit from Judge Kozinski's dissent in Silveira:

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

The courts long ago lost their "courage to oppose" if they ever really generally recognized their responsibility to. They've been aiding and abetting the expansion of government power at the expense of the Constitution since shortly after ratification, and if they can eventually no longer find anyone to enforce their decrees, it might be because of decisions like the 5th Circuit's Gould finding of last week. We are, as time goes on, less and less a free people, and we are less free because we allow our government to expand its power. We're too busy living our lives, and we're too human in our desire to be safe and secure. Freedom is dangerous. Freedom is risky. And freedom must be paid for, either through "eternal vigilance," as Jefferson warned, or through conflict, as Robert Heinlein wrote in his novel Starship Troopers,

As to liberty, the heroes who signed the great document pledged themselves to buy liberty with their lives. Liberty is never unalienable; it must be redeemed regularly with the blood of patriots or it always vanishes. Of all the so-called natural human rights that have ever been invented, liberty is the least likely to be cheap and is never free of cost.

We've abandoned our vigilance. Our islands of liberty are constantly shrinking in the ever-rising sea of governmental powers. In Prof. Barnett's book there is supposedly a way to restore our "presumption of liberty" without armed conflict. I hope there is. Because without a way to reverse this trend peacefully, the only choices left to us are submission or armed revolt. I don't know yet if we've proceeded down the slope to the point of no return, and I don't think we can know until we get that empty feeling in the pits of our stomachs that free-fall induces.

But by then, the road to hell will have reached its destination.