Police to Search Homes Without Warrants

[ThomasJefferson]

Court Opens Door To Searches Without Warrants

POSTED: 3:55 pm CST March 26, 2004
UPDATED: 4:36 pm CST March 26, 2004
NEW ORLEANS -- 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 system works in an effective manor," Defillo said.

http://www.theneworleanschannel.com/news/2953483/detail.html

I sure hope everyone on this site is registered to vote, because the neofascists clearly are working at every level to achieve their goals.

[macka]

Right. Great. Wonderful. :rolleyes:
It doesn't really affect me on a micro level, but that unprecedented move is just really pointless.

"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.

And how are they supposed to enforce that?

You Americans... ;) :D

[thatwendigo]

I was wondering if I ought to post this, actually, but thanks for saving me the trouble.

Suffice it to say, as the Great Mr. Jefferson already has, that the decision of te 5th Court is pretty well establishing more cases where the 4th Ammendment is being waived. Anyone who's been pulled over by, spoken to, or otherwise involved with the police knows that a cop only has to decide he doesn't like you before 'probable cause' is established in his head. Giving away power like this to street beaters is like handing out explosive to kids. We don't pay cops to think through the civil liberties issues of their actions so much as to stop criminals, and telling them that they can search if they think there's a reason is essentially killing the whole point of warrnts in the first place. Those have to be signed by a judge, who hopefully knows the law a little better than someone who hasn't passed the bar...

In the words of protest punk band Anti-Flag:
The goverment passes a law to take your rights away,
"You've got to sacrifice, if you want to stay safe."
Until the day you find the Feds in your back pocket,
Locking you away for saying "question," "think," or "stop it."

[wdlove]

They should only be able to search a home with a warrant, signed by a judge. Even the Patriot Act still provides for search warrants, just makes it easier to obtain. That would be a sad day for our democracy it that would occur. We would then be rule by a dictator or no government at all! :(

[jsw]

This is really bad. Any student of history will surely recognize the steps a government takes on its way to assuming complete control. This is one of them. Any benefits are surely outweighed by the potential abuse and by the slippery slope that this decision tilts even more.

[Dont Hurt Me]

Patriot act is anything but patriotic, it needs to be redone or taken off the books. this should be a big issue for Kerry. it will help in creating the police state that govt allways ends up wanting. its all about the govt, the taxes are bad enough allready they might as well just go to every house with a gun and say give us your money. Now they can go into every home across America because they feel like it. this is another reason to vote out George. Freedom,Liberty are being squashed by this administration.
Get registered to vote,make your voice heard and vote out these idiots who are destroying our way of life.

[jsw]

Patriot act is anything but patriotic....

Yeah, any time you hear the government call something patriotic, especially so blatantly as "Patriot Act", you can rest assured that it's anything but that.

[Ambrose Chapel]

i'll be shocked - shocked! - if law enforcement abuses this awful power.
:rolleyes:

[Stelliform]

Yet another example of the judicial system being abused and make law. :rolleyes: I really think we need to check the power of the judicial system. I don't want my life to be affected by the decision of a handful of people.

I think it is an attack on democracy to have non elected judges make law for the entire country...

[Macmaniac]

So much for the bill of rights :rolleyes:
Maybe they should stop spending millions of dollars to preserve them in glass cases, they are being torn apart anyway. Might as well spend the money on arresting more "middle eastern looking" people for no reason. :rolleyes:
Such much for civil liberties :rolleyes:

[LongArm]

[QUOTE=thatwendigo]

We don't pay cops to think through the civil liberties issues of their actions so much as to stop criminals...

I believe that this is an important point. In order for a policeman to do his or her job, they have to believe that the person that they are arresting is guilty. In spite of vaunted principles like "Innocence until proof of guilt" etc. the process starts with assumption of guilt and the distinct possibility of a summary death penalty.

[rainman::|:|]

uhh, can they even do this in iraq?? this is awful, let's hope it gets overturned quickly. if it spreads to other states...

paul

[Sun Baked]

It's bad enough when police handle a traffic stop and/or question people by cuffing them and searching them for weapons (and accidentally find drugs or cash).

Now cops can ransack the vicinity of the person they have "in cuffs", for their safety, to further ensure their safety -- during a noise complaint.

[crazytom]

So when did the Constitution start to get burnt to a crisp? Oh, yeah, around the time the war on drugs started.

This is bad, bad stuff. See my sig.

[slowtreme]

This AP article, which seems to be able the only public release of this decision so far is very one sided and not good reporting.

I don't see this as all that bad. What this really means to allow for is not the entry and search of private property... and by that I mean police do that all the time with probable cause... but instead legitimises what is FOUND during an inpromtu search with or without consent.

How many times has real, hard, damnign evidence been thrown out of court on technicalities because a paper warrant wasn't issued. Theives, rapists, and killers walk the streets as we speak because they were set free when proof of a crime was available but dismissed.

If I misunderstood the court decision, which I may have since I can't find an internet article supporting the way I heard it, I'd be the first to just ignore this thread. LOL :)

[Dippo]

I don't see this as all that bad. What this really means to allow for is not the entry and search of private property... and by that I mean police do that all the time with probable cause... but instead legitimises what is FOUND during an inpromtu search with or without consent.


Any one who's been pulled over by a cop knows that they can find probable cause anytime they need to...they just make it up :)

[Sun Baked]

Decision...

http://www.ca5.uscourts.gov/opinions/pub/02/02-30629-cr0.pdf

From other articles (http://www.woai.com/news/local/story.aspx?content_id=01CFCC32-C30F-426E-A0DB-6C8F0058115F)

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 own safety.

Any evidence discovered during that search now is admissible 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 may be dangerous.

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.

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.

[rainman::|:|]

This AP article, which seems to be able the only public release of this decision so far is very one sided and not good reporting.

I don't see this as all that bad. What this really means to allow for is not the entry and search of private property... and by that I mean police do that all the time with probable cause... but instead legitimises what is FOUND during an inpromtu search with or without consent.

How many times has real, hard, damnign evidence been thrown out of court on technicalities because a paper warrant wasn't issued. Theives, rapists, and killers walk the streets as we speak because they were set free when proof of a crime was available but dismissed.

If I misunderstood the court decision, which I may have since I can't find an internet article supporting the way I heard it, I'd be the first to just ignore this thread. LOL :)

Well, see, here's the problem. in line with the whole philosophy of "innocent until proven (shown) guilty", one absolute rule must be enforced from the start: police must suspect you of a crime before they go forming a case against you, including searching your property. In some cases, this is bent a bit-- if you're swerving down the road, and when pulled over your car smells like marijuana, the marijuana is directly related to why they pulled you over-- it's presumably the cause of the behavior that got you pulled over. On the other hand, if police just randomly pull you over, when you are obeying all traffic laws (visibly), and you have a joint in your ashtray, you have a case-- if police had been obeying the constitution, you would have never been busted for the joint. just because citizens break the law, doesn't mean the police can break the law to catch you. If you can't understand the fundamental need for this, i can't explain it for you. But trust me when i say, it's one of the principal reasons that the USA was so great.

In other words, removing the burden of suspicion from criminal cases is one of several changes that need to be made before a dictator can take over America totally... yeah, this really is that important.

paul

[crazytom]

This is copied from the FEAR.org listserv and provides some very useful insight to the whole thing:

------------------
The titles of the forwarded message -- "Cops In Louisiana Can Now Search Homes Without Warrants" -- and the New Orleans Channel 6 web page ("Court Opens Door to Searches") sound very alarming, but I read the decision (and posted it on the FEAR website so you can read it for yourself) and the title of the article is a huge exaggeration. The decision is only a little worse than previous law. It does not authorize police to enter homes and search without warrants, except in very narrow circumstances.

The Fourth Amendment prohibits "unreasonable searches and seizures" but doesn't define them. The courts define those principles, and often they do so by splitting hairs.
As a general rule, a warrant is required to search a dwelling -- even a house trailer as in the Gould case. This is a zealously guarded rule, but there are exceptions: for example -- consent, hot pursuit or exigent circumstances. The Gould case began with consent. The police knocked on the door of the house trailer where the defendant lived, and the defendant's roommate let him in. That's consent. But the police went beyond the common area and looked in the defendant's room - that's beyond the scope of any consent the roommate can give.
The police had another justification for looking into the defendant's room -- they had probable cause to believe the defendant was armed and dangerous* and wanted to check to see if he was hiding in there (e.g. to conduct "a protective sweep"). (*The police had received a telephone call warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges, and they wanted to find him and talk to him to stop him from following through on the supposed plan.) So the police went into the defendant's bedroom of the trailer and looked in the closet. Instead of finding Gould there, they found some guns - illegal for Gould to possess. They left and found Gould outside hiding in the woods. The police wanted to use the guns as evidence. The Fifth Circuit sitting en banc (all or most of the judges of the 5th Circuit joining in the decision) okayed the search and seizure, which means the guns they found while looking for Gould could be used against him.

As I said before, this case is only slightly worse than previous law. The U.S. Supreme Court held in Maryland v. Buie, 494 U.S. 325 (1990) that police can make "protective sweeps" looking for the person, when officers with an arrest warrant go to the defendant's house -- if they have probable cause to believe the person is dangerous and that he might be hiding in his house.

I'm not sure the Supreme Court will uphold this search. There was no warrant at all, and the police were not in hot pursuit of a fleeing felon -- although they were in warm pursuit of a convicted felon who appeared likely to commit a violent crime.

Read the Gould opinion and decide for yourself. It's at http://www.fear.org/opinions/gould.html.

----------------------------

So, in reality, it's one of those gray areas where you're damned if you do and you're damned if you don't.

[zimv20]

The police had received a telephone call warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges
i'm confused -- isn't this enough grounds for a warrant? getting it would have avoided this whole mess to start with.

[diamond geezer]

Here is an interesting tie-in regarding what constitutes enough suspicion to search some ones home.

link (http://www.mercurynews.com/mld/mercurynews/news/breaking_news/8298678.htm)

It was too many appliances, not pot, that police found at Carlsbad home

Associated Press


CARLSBAD, Calif. - When police noticed Dina Dagy's family was spending $250 to $300 a month on electricity, they suspected a marijuana farm was flourishing under high-intensity lights inside their suburban home.

What they found when they showed up with a drug-sniffing dog and a search warrant was a wife and mother who does several loads of laundry a day, keeps a dishwashing machine going, has three electricity-guzzling computers and three kids who can't remember to turn the lights out when they leave a room.

"It's hard to believe a high utility bill would be enough to issue a state warrant," said Dagy, who is demanding the Police Department issue a written apology.

Authorities say they have already apologized verbally several times and were only following proper procedures. Tracking down marijuana growers by reviewing electricity bills, they say, is a common practice.

"I understand they feel something isn't appropriate here, but it is very much consistent with how search warrants are prepared," said police Lt. Bill Rowland.

When authorities noticed how high the bill for the Dagy home was, they sent a police dog to the neighborhood, and it reacted as though it had smelled drugs.

They also noticed the family had put its trash out that morning, something police say drug growers often do to hide the evidence. In the Dagys' case, however, it was trash day.

When officers returned on March 19 with a search warrant, Dagy was volunteering at her son's second-grade class. She was heading back to her car when police arrived at the school, and she returned home and let them into the house.

They found nothing illegal, and she says she feels fortunate she wasn't in her son's classroom when they arrived.

"I would have been so embarrassed," she said, "and my son would have died: `They're taking your mommy away!'"

[zimv20]

Here is an interesting tie-in regarding what constitutes enough suspicion to search some ones home.

i remember the "high electricity bill" tactic from the War on Drugs when bush I was in office. other things the DEA did:
- flew around in helicopters w/ thermal sensors looking for too much heat coming from houses
- demanded customer records from a florida Franks Nursery and Crafts to see who bought hydroponic gardening equipment. quipped one DEA agent: "they ain't growin' tomatoes in there!"
- surveillence of hydroponic gardening shops (there was one in Illinois where i bought my beer-brewing supplies; i'm quite sure i was being watched)

[slowtreme]

If you can't understand the fundamental need for this, i can't explain it for you. But trust me when i say, it's one of the principal reasons that the USA was so great.I'm so glad SunBaked dug up the real info. Like I said, the AP article was sensationalism plain and simple.

I know the Constitution. I think the USA is great, not WAS. I took an oath on my LIFE to defend it once upon a time, and fought a foreign war to defend it. I imagine most people in the MacRumors boards have never been in that position. I also think I have a good feeling of what is good and what is bad for me. In the 2 cases referanced in this thread, I can clearly see why this is a good clarification of search and evidence gathering.

Your point is no better. Law is the Law. Whether right or wrong, POT is not legal in the US (for the general public) and driving under the influence (or would this be an open container :D ) is not either. By purchasing or using pot you make that decision THEN that you have decided to be unlawful. At any point after that you can be caught and charged. If you don't, hey no harm no foul it's a victimless crime, but you made that call. Complaining about the situation for getting caught should not preclude the actual crime.

[mactastic]

I took an oath on my LIFE to defend it once upon a time, and fought a foreign war to defend it. I imagine most people in the MacRumors boards have never been in that position.

Yeah, you're right. People who've never served should not be allowed to opine.

[diamond geezer]

I know the Constitution. I think the USA is great, not WAS. I took an oath on my LIFE to defend it once upon a time, and fought a foreign war to defend it.

Which foreign war was that?

[slowtreme]

Yeah, you're right. People who've never served should not be allowed to opine.Nowhere in my comment did I say anyone is not entitled to thier opinion. This is a discussion board right? Maybe I'm just being devil's advocate to provoke a something other than blind agreement.

I take responsibility for everything I said and I prefaced towards myself **i.e. what is good and what is bad for me. I do not suggest you should believe what I do, only that I agree with the courts ruling in this case for reasons I stated.