Farther Down the Road to Hell

(Bumped for the addendum at the bottom.)

Back in 2004 I wrote the post The Road to Hell is Paved with Good Intentions about the 5th Circuit Court of Appeals' decision in U.S. v. Gould. That case was an en banc re-hearing in front of a panel of 15 judges. A majority of 11 voted to reverse the previous decision. The title of that original post came from one of the dissents, written by judge Harold DeMoss, one of the pair of judges on the three-judge Emerson panel who found in favor of the right to arms being an individual one in that case.

Gould was a case about when police officers could enter the dwelling of a suspect without a warrant. Here's the pertinent portion of Judge DeMoss's dissent:

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.

At that time I also quoted 9th Circuit judge Alex Kozinski from his inspiring dissent to the denial of an en banc re-hearing of California's 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.

Gould was another example of that.

Gould depended on a judicial perversion of a precedent-setting case, the Supreme Court's Maryland v. Buie. Judge DeMoss had this to say about how the 5th Circuit's judges misread that decision:

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. Here, the majority has ignored the first two elements and only addressed the third.

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.

The latest slide down the slippery slope comes from California's U.S. v. Lemus, and it is objected to by, again, judge Alex Kozinski, and he too decries a deliberate misreading of Buie:

The panel approves the entry of a team of police into Lemus's home by relying on Maryland v. Buie, 494 U.S. 325 (1990), but Buie is nowhere on point. Buie was a case where the police were already legitimately inside the home when they arrested the suspect. The question was whether they could look in the area immediately adjoining the arrest where someone who could ambush them might be hiding. The Court recognized that police inside an arrestee's home are peculiarly vulnerable because they are on the suspect's turf—a place where someone dangerous might be hiding. The risk is present in every case because a suspect's home is inherently dangerous for police who must enter to make an arrest. But Buie says nothing at all about police who conduct an arrest outside of the home. It does not authorize police to enter a home for the very purpose of conducting a search. That is the situation we have here.

Lemus was in his side yard when Detectives Longoria and Diaz called out that they were there to arrest him. Two patrol officers arrived at the scene just as Lemus started to back slowly towards his living room door. After he opened it, "[t]he officers were there in an instant, taking hold of Lemus and handcuffing him before he could fully enter the doorway and retreat into his living room." United States v. Lemus, 582 F.3d 958, 960 (9th Cir. 2009). Note: They grabbed him and had him handcuffed "before he could fully enter the doorway" and before he could "retreat into his living room." Instead of walking away with the handcuffed Lemus in tow, the officers entered the apartment and had a good look around. "Checked the bedroom and bathroom too." The detectives then went into the living room, where Longoria found a gun.

The panel says the police could enter the home - with no suspicion whatsoever - because Lemus's living room "immediately adjoined" the place surrounding the arrest, but Buie only authorizes a suspicionless search when the police make an "in-home arrest" (and then only for a small area near the arrest, not a grand tour of the entire apartment). Here there was no in-home arrest. How do we know this? Because the opinion says so: After making the arrest, Longoria “sent” the patrol officers "in" to Lemus's apartment. Officers who are already inside an apartment don't need to be sent in.

The entire justification Buie gives for a warrantless search is that officers must be able to protect themselves when they perform an "in-home arrest." When an arrest doesn't take the police into a suspect's home, they aren't forced into the "confined setting of unknown configuration" that Buie worries about. They're outside, just the same as in an "on-the-street or roadside investigatory encounter." Yet "[e]ven in high crime areas, where the possibility that any given individual is armed is significant," the Court still requires "reasonable, individualized suspicion" before police can perform a search.

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. 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,' " (emphasis added), where the officer has more to fear than in an "on-the-street-encounter[ ]." If the police surround a suspect’s home, guns drawn, and order him out — and he complies — may the police go rummaging through his home without suspicion because the suspect was arrested when he was inside? Surely not.

Surely YES, because that's what this decision implies. It's just one step farther than Gould.

But here's what prompted this piece: how Kozinski began his dissent:

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.

Did I mention that this was an entry into somebody's home, the place where the protections of the Fourth Amendment are supposedly at their zenith?

The courts giveth, and the courts taketh away. Our Second Amendment rights are being given belated recognition, while our Fourth Amendment rights are, well, let Judge Kozinski say it again:

As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.

A majority of judges on the 9th Circuit wanted that search in Lemus to be legal, so they made it legal, by allowing the twisting and misinterpreting - deliberately, in my opinion - of precedent. They "constitutionalized their personal preferences," and damn the Constitution.

THIS is "judicial activism." And once again a Justice Brandeis quote comes to mind:

The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.

Now, go back and re-read What We Got Here Is . . . Failure to Communicate, specifically the part about how those with the Unconstrained vision view decision-making with respect to the passage of time, about halfway down that essay.

EDITED TO ADD:

Something I forgot to mention. Back when the Ninth Circus denied an en banc rehearing of Silveira v. Lockyer, Judge Andrew Kleinfeld wrote one of the two most powerful dissents I've ever read. (The second was Judge Alex Kozinski's from that same case.) In that dissent, Judge Kleinfeld said this:

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, "the people," as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to "the people," including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment's protection of the right of "the people" to be secure against unreasonable searches and seizures, or the right of "the people" to freedom of assembly, but times and personnel change, so that this right and all the other rights of "the people" are jeopardized by planting this weed in our Constitutional garden.

Well, they didn't do it through arguing that the right was "collective," they just found a different way to accomplish the same thing. I'm curious as to whether Judge Kleinfeld was among the majority here.