The Sneeze Rule

Radley Balko | February 26, 2007

The 11th Circuit Court of Appeals finds yet another exception to the Fourth Amendment.

Comments

|2.26.07 @ 11:39AM|#

Shouldn't it be The Cough Rule?

Guy Montag|2.26.07 @ 11:39AM|#

I guess that works if the cops cooperate without your knowledge.

|2.26.07 @ 11:47AM|#

As far as sleazy cops creating exigent circumstances, this is quite a clever job.

Antarctic Penguin|2.26.07 @ 11:47AM|#

To me, the two most important sentences in the entire article are these:
"Regarding the Fourth Amendment search claim, the Court explains that the agents' entry into the home was justified by the exigent circumstances doctrine, since they feared that their source's life was in danger due to the noxious chemicals inside the house."
and
"Anyway, if the agents were so worried about their source's health, why did they knowingly send him into a meth lab?"

It was initially sending the "source" in under direction of the police that was a violation of the fourth amendment in my opinion. NOT going in after the source when the agents thought the source was in danger. Once a private citizen goes into a suspected crime scene under direction of the police that person is "working for the police" and thus should be held to the same standards the police are. The police were right to go I after him if they honestly thought his life was in danger. They were NOT however; right to send him in at all.

Thomas Paine\'s Goiter|2.26.07 @ 1:13PM|#

Once a private citizen goes into a suspected crime scene under direction of the police that person is "working for the police" and thus should be held to the same standards the police are.

Agreed. How in the hell is it legal for a paid informant to go in without a warrant?

Dave B.|2.26.07 @ 1:29PM|#

How in the hell is it legal for a paid informant to go in without a warrant?

I'm not a lawyer, but I'm pretty sure that its legal to enter someone's house if you're invited. This may even apply to police and informants.

fyodor|2.26.07 @ 1:45PM|#

Just coughing showed the guy's life was in danger?? Why would the agent's life be in any more danger than the guy who let him in? Did they later check the agent for signs he had been inhaling lethal doses of noxious fumes? If not, then why couldn't a wired agent just start yelling, "Stop beating me!" for the whole force to swoop in?

Thomas Paine\'s Goiter|2.26.07 @ 1:49PM|#

I'm not a lawyer, but I'm pretty sure that its legal to enter someone's house if you're invited. This may even apply to police and informants.

Oh auspices, I hate you.

|2.26.07 @ 1:54PM|#

"I'm pretty sure that its legal to enter someone's house if you're invited."

Fruit from the vampire tree rule.

Antarctic Penguin|2.26.07 @ 2:35PM|#

"Just coughing showed the guy's life was in danger??"

I was not there, I agree one should be skeptical of what police say BUT even accepting their premise, I would STILL say their initial action of sending in the informant was unconstitutional.

|2.26.07 @ 2:39PM|#

Twenty-nine defendants went on trial earlier this month in a Spanish courtroom for complicity in the March 11, 2004 Madrid train bombings that killed 191 commuters and injured another 1,800. Among the accused: Jamal Zougam, a 33-year-old Moroccan immigrant who once ran a cell-phone business. In June 2001, Spanish police raided Mr. Zougam's apartment, where they found jihadist literature and the telephone numbers of suspected terrorists. But the Spaniards judged the evidence insufficient to arrest or even wiretap him. Today, the Moroccan is believed to have furnished the cellphones through which the train bombs were detonated.
In raiding Mr. Zougam's apartment, the Spanish were acting on a request from French investigative magistrate and counterterrorism supremo Jean-Louis Bruguiere. Earlier, Mr. Bruguiere had also warned the Canadian government about a suspicious Algerian asylum-seeker named Ahmed Ressam, but the Canadians took no real action. On Dec. 14, 1999 Mr. Ressam--a k a the Millennium Bomber--was arrested by U.S. customs agents as he attempted to cross the border at Port Angeles, Wash., with nitroglycerin and timing devices concealed in his spare tire.
It would be reassuring to believe that somewhere in the ranks of the FBI or CIA America has a Jean-Louis Bruguiere of its own. But we probably don't, and not because we lack for domestic talent, investigative prowess, foreign connections, the will to fight terrorism or the forensic genius of a Gallic nose. What we lack is a system of laws that allows a man like Mr. Bruguiere to operate the way he does. Unless we're willing to trade in the Constitution for the Code Napoleon, we are not likely to get it.
Consider the powers granted to Mr. Bruguiere and his colleagues. Warrantless wiretaps? Not a problem under French law, as long as the Interior Ministry approves. Court-issued search warrants based on probable cause? Not needed to conduct a search. Hearsay evidence? Admissible in court. Habeas corpus? Suspects can be held and questioned by authorities for up to 96 hours without judicial supervision or the notification of third parties. Profiling? French officials commonly boast of having a "spy in every mosque." A wall of separation between intelligence and law enforcement agencies? France's domestic and foreign intelligence bureaus work hand-in-glove. Bail? Authorities can detain suspects in "investigative" detentions for up to a year. Mr. Bruguiere once held 138 suspects on terrorism-related charges. The courts eventually cleared 51 of the suspects--some of whom had spent four years in preventive detention--at their 1998 trial.
In the U.S., Mr. Bruguiere's activities would amount to one long and tangled violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the Constitution. And that's not counting the immense legal superstructures that successive Supreme Courts have built over and around the Bill of Rights. In France, however, Mr. Bruguiere, though not without his critics, is a folk hero, equally at home with governments of the left and right. The main point in his favor is that whatever it is he's doing, it works.
"Every single attempt to bomb France since 1995 has been stopped before execution," notes a former Interior Ministry senior official. "The French policy has been [to] make sure no terrorist hits at home. We know perfectly well that foreign-policy triangulation is not sufficient for that, [even if] it helps us go down a notch or two in the order of priority [jihadist] targets. So we've complemented our anti-U.S. foreign policy with ruthless domestic measures."
That's something that U.S. civil libertarians, who frequently argue that the Bush administration should follow the "European model" of treating terrorism as a law-enforcement issue instead of a military one, might usefully keep in mind. As lawyers David Rivkin and Lee Casey argue in the forthcoming issue of The National Interest, "the [Napoleonic] Civil Law system offers considerable advantages to the state in combating terrorism--especially in terms of investigative tools and a level of secrecy--that are simply unavailable in the ordinary Common Law criminal prosecution and trial, at least as governed by the United States Constitution."
Again, review the contrasts between American and European practices. Except in limited circumstances, the U.S. does not allow pretrial detentions. But according to figures compiled by the U.S. State Department, 38% of individuals held in Italian prisons in 2005 were awaiting trial or the outcome of an appeal, while Spanish law allows for pre-trial detentions that can last as long as four years for terrorism suspects. In the U.S., the Posse Comitatus Act forbids the use of the military in law-enforcement work, and paramilitary units are relatively rare. By contrast, most European countries deploy huge paramilitary forces: Italy's Carabinieri; France's Gendarmerie Nationale; Spain's Guardia Civil.
Even Britain, which shares America's common law traditions, has been forced by Irish and now Islamist terrorism to resort to administrative detentions, trials without jury (the famous Diplock courts) and ubiquitous public surveillance. Wiretapping is authorized by the Home Secretary--that is, a member of the government--rather than an independent judge. In the early days of the Northern Irish "troubles," the government of Edward Heath placed some 2,000 suspects, without charge, in internment camps. Ironically, it was the decision to treat terrorists as ordinary criminals that led to the famous hunger strikes of Bobby Sands and his IRA crew.
All this calls into question the seriousness, if not the sincerity, of European complaints that under the Bush administration the U.S. has become a serial human-rights violator. Europeans have every right to be proud of civil servants like Mr. Bruguiere and a legal tradition that in many ways has been remarkably successful against terrorism. But that is not the American way, nor can it be if we intend to be true to a constitutional order of checks and balances, judicial review and a high respect for the rights of the accused. When President Bush declared a war on terror after 9/11, it was because he had no other realistic legal alternative. And when the rest of us make invidious comparisons between Europe and America, we should keep our fundamental differences in mind. There is no European 82nd Airborne, and there is no American Jean-Louis Bruguiere.

Antarctic Penguin|2.26.07 @ 2:40PM|#

"I'm not a lawyer, but I'm pretty sure that its legal to enter someone's house if you're invited. This may even apply to police and informants."

However, he was working for the police and apparently he did not say "Hey, I just want you guys to know, I am working for the police." This makes him equivalent to an undercover police officer. I.O.W. he was searching their home with neither a warrant nor the informed consent of the owners.

|2.26.07 @ 3:23PM|#

When in France...:

That's called a sea of copy, and I don't feel like swimming.

|2.26.07 @ 3:36PM|#

"That's called a sea of copy, and I don't feel like swimming."

Enjoy your bliss!

|2.26.07 @ 5:52PM|#

Bliss? Just because I didn't plow through your thinly-veiled argument against the return key doesn't mean that I haven't lived in a country with the inquisitorial style legal proceedings, and I make a living in adversarial style legal proceedings? Bliss? I wish I could find it.

|2.26.07 @ 8:29PM|#

What is FARK? One of the comments on the link said we had been FARKed. Does that mean the story is made up?

c&d|2.26.07 @ 10:19PM|#

Two Points:

First, the decision notes,
"one of the agents walked by an exhaust fan that was ventilating the house and received a chemical burn. He went to the emergency room for treatment." This indicates the police were not just making something up. Meth labs are quite dangerous.

Second, this decision involved a civil action against the police officers. Police have "qualified immunity" for violations of the Constitution. This means that unless what they did clearly violated the Constitution, they are not liable. The Courts have adopted this rule so that police are not unnecessarily concerned with their own (or, in effect, their police organizaion's) liability. Thus, in a criminal prosecution the same analysis would not necessarily hold.

I find the post at Decision of the Day misleading.

How many commentators here actually looked at the decision?

|2.27.07 @ 9:57AM|#

c&d:

Excellent argument for the exclusionary rule. Thanks.