Judge Alex Kozinski: The Fourth Amendment is Gone. "Welcome to the fish bowl."

Last week the 9th Circuit Court of Appeals denied an en banc rehearing of the case United States v. Lemus, which dealt with a warrantless police search of a suspect’s home after he was arrested outside of it. As a result of the 9th Circuit’s denial, the search will stand, which has left Chief Judge Alex Kozinski none too happy. In dissent, Kozinksi basically accused his colleagues of abandoning the Fourth Amendment:

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 opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after [United States v. Black] is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.

Read the whole thing here (.pdf). In our July 2006 issue, Shikha Dalmia interviewed Judge Kozinski about free speech, privacy, libertarianism, and more.

(Via PogoWasRight)

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  • Paul||

    The 9th Circus strikes again.

  • Paul||

    But seriously, who still took the fourth amendment seriously?

  • ||

    I say we delete it and renumber the amendments.

  • ||

    How many are left? I think the 3rd Amendment is still good.

  • ||

    Why do you hate our brave soldiers and their need to be housed and fed?

  • ||

    They take my last beer, eat all my cereal and put their muddy feet up on my couch! And when I asked them about the sexy maid screen saver on the computer that the wife had fits about, they all just looked at the ceiling and whistled.

  • The Art-P.O.G.||

    I doff my hate to you, JW. Well done.

  • The Art-P.O.G.||

    I mean hat.

  • ||

    I liked it better the other way.

  • ||

    Although "hate" does work in an odd way.

  • John Tagliaferro||

    +1

  • John Tagliaferro||

    the +1 was for the TAPOG hate comment.

  • skr||

    until they need to quarter troops that is.

  • John Tagliaferro||

    Are they drawn first or second? I know the order in the phrase but it is not a clear list of instructions.

  • stationary||

    The phrase is corrected. Once a person has been quartered, there's not really enough left to draw from. At the end of a drawing, they might still be aware enough to notice the quartering.

  • kayana||

    I can't think about it,.

  • guy||

    Can't wait for the future, when I get to home school my kids about the decline and fall of the 4th Amendment. After teaching them about encryption and souveillance.

  • ||

    I can't wait until my kids go to a real school, graduate with honors, go on to an Ivy League college and get great jobs, leaving your socially retarded, paranoid morons in a trailer park. Don't worry though, I'll make sure they pay some extra taxes to pay for your genetically-savaged, inbred grandchildren.

  • ||

    By "real school" do you mean public education? Because then your definition of "Ivy League college" should be "Boot Camp" and by "Great jobs" you mean "sent overseas to die in the Middle East"

    Unless you can afford to send your kids to private school... in which case, welcome to the upper-middle class. You don't need the fourth amendment anyways.

  • fukgary||

    your a douche

  • Grammar Police||

    His a douche what?

  • ||

    Thank you Grammar Police! My inner "niggler" is happy.

  • ||

    Niggler is our word!

  • ||

    You are writing this sitting in your double-wide in a trailer park, aren't you? Time to wipe the Cheetos from your fingertips and put some underwear on. Geez, any moron can type a comment like that.

  • ||

    What a shameful reply. You (wisely) didn't attempt to dispute the arguments of the dissenting opinion, you just insulted all who recognize the truth of the situation. It is not conspiracy, nor is it an artful misreading of the law - It is the plain and simple truth. There are no 4th amendment protections anymore - None. That you do not care, and further that you attempt to patronize those who do, is absolutely shameful. It appears that along with the Bill of Rights, we are slowly but surely losing any notion of good/responsible citizenship. Very sad, 'Gary' (and what on earth do trailers/financial circumstances have to do with this subject?? What a bizarre statement).

  • ||

    Very intelligent comment Michael. Please read my comment below and you will see that I have much the same idea you do. I hope for a better day where ethics and morality are involved in the noble professions of law enforcement, law, and the judiciary/legislature (one and the same it seems).

  • Joe M||

    I thought the 9th circuit was extremely liberal, and thus, more protective of civil liberties. Guess I was misinformed.

  • ||

    They're pro-government, most of the time. Civil liberties that don't really interfere with government power are okay with the Ninth, provided that they don't interfere in any way whatsoever with the rights of large copyright owners or celebrities.

  • Michael||

    I'm not sure which scares me more - that you are absolutely correct or that police are considered an arm of government and not civilians that happen to be in the employ of such. I think the distinction should be fairly obvious.

  • Paul||

    Being liberal has no relation to protecting civil liberties. It only has relation to specific outcomes. If civil liberties get in the way of specific outcomes, well, then civil liberties are just going to have to get out of the way.

  • ||

    Not just liberals.

  • skr||

    And people wonder why utilitarianism pisses me off so much.

  • ||

    The terms "liberal judge" and "liberal court" are oxymorons. They are merely terms applied by right wingers when someone goofs up and follows the law.

  • BakedPenguin||

    And now with the "wise Latina" police state pal on the SC, we can't hope for much chance of a reversal there.

  • Mo||

    Not to mention Antonin "New Professionalism" Scalia.

  • robc||

    He's pretty good on procedural stuff. He opposed the infrared searches on 4th amendment grounds, IIRC.

  • ||

    Wake Scalia up and point out you don't need infrared anymore, just a curious cop. "Wheel that curious cop over here and let's see what she's hiding".

  • Hacha Cha||

    if warrantless searches of your car while you are out of it are illegal then without a doubt warrantless of your house are too. the 4th amendment needs to be restored and respected.

  • ||

    If only that were true. The Courts have taken search incident to arrest and protective sweep and pretty much destroyed the 4th Amendment as it applies to cars. You can be in handcuffs in the police car and the cop can search your car "for his protection". That is I imagine where this case came from. I mean seriously, if the cop can go in the car, why not the house? And who said we don't have a diminished expectation of privacy when we are out in front of our house.

  • Skip Gates||

    "And who said we don't have a diminished expectation of privacy when we are out in front of our house."

    No shit.

  • ||

    I mean seriously, if the cop can go in the car, why not the house?

    Because houses don't have engines and wheels. Double-wides and Winnebagos don't count.

  • ||

    :::sigh::: stupid joke name

  • ||

    I realize that. But I never bought into the diminished expectation of privacy in cars. I always thought it was just an excuse to let cops violate people's right. I just think that once the court mangled the 4th Amendment search incident to arrest regarding cars, it is not surprising they have now done the same thing regarding houses.

  • ||

    OK, I read you saying the opposite.

    Never mind.

  • ||

    I never bought into that diminished expectation of privacy thing, either. Anything that cops, using their own eyes, can see on the vehicle, or by standing outside when it is closed and locked, seems like fair game. But to look under your seats, in your glovebox or trunk, etc., should require a warrant, it seems to me. That the courts have ruled otherwise is only yet one more example of how they can "get it wrong." What are the chances that we can get the court to revisit this erroneous doctrine, and by which means?

  • ||

    Alert guys, but you may know this: there are now casees ( I think Virginia v Moore and Lago Vista somethinoranother) that allows for the arrest of a person for a traffic violation, even one of them thar fabrikated kinds.

  • Ryan M||

    Do you think your "house" having wheels is really a valid reason why it can be searched? Or did I misunderstand? I think your home is your home, regardless of what type it is or how mobile it is.

    I'm seriously considering living aboard a boat, which comes with a whole host of 4th amendment problems. Namely, the coast guard can search you any time, any where, without any reason. Scares the crap out of me. But I think the benefits of living on a boat outweigh the invasion of privacy.

  • ||

    "" You can be in handcuffs in the police car and the cop can search your car "for his protection".""

    Didn't that change? I believe SCOTUS, not that long ago, said no.

  • ||

    Maybe I am wrong about that one. It has been a long time since criminal procedure. But, they can still go through the damned glovebox, even though you are standing outside the car in the name of a "protective sweep".

  • NeonCat||

    How else will they discover the tiny ninjas waiting for the valiant officer to drop his guard and come to your handcuffed aid?

  • Joe||

    Arizona v. Gant:

    http://en.wikipedia.org/wiki/Arizona_v._Gant

  • ||

    We need to end the senseless "war on drugs". THAT will allow us to begin the process of restoring the protections of the Bill of Rights. Until the drug war has ended, we have no real chance of ANY protection. Think about the negatives of drug use - and then think about which ones are caused by their legal status alone. Property crime...Violence...The list goes on. Just imagine...Overnight our crime rate would PLUMMET...The call for gun control would end, as gun crime would all but cease (sounds silly perhaps, but a HUGE percentage of gun crime can be traced back to drugs in some way)...Cops would be free to pursue real criminals (the relative few that would continue to commit crimes, that is), and the prisons would have room to hold them, and perhaps the resources to actually rehabilitate them....Criminal empires WORLDWIDE would lose their primary funding OVERNIGHT (including al q)

    End the drug war - Save the country, save the world. Seems like an over the top statement, but it really isn't. The effect would be positive, and profound.

  • ||

    I assure you I do not use, and my comment is; AMEN

  • Zeb||

    If police safety is really the concern, they should say that it is OK to search, but they may not seize anything, plain sight or not, that is not an armed person waiting to jump out and kill cops and nothing they see inside can be used to get a warrant later.

  • ||

    They are putting themselves in danger by entering the house. If the guy's buddy is waiting on them, they are in big trouble.

  • Zeb||

    Good point. If the world is so damn scary to cops, they should arrest the guy and get the hell out of there as fast as possible.

  • ||

    Cops are such retarded assholes. The last thing you want to do is go into someone's house. That is by far the most dangerous thing they do.

  • Zeb||

    I thought the same sort of thing when we first started hearing about the need for heightened security after 911. Fine, do the extra searches, but give people back their drugs if they are not terrorists.

    (of course I am being silly and the 4th should be respected)

  • ||

    It's beginning to look like the 4th Amendment should only be printed on doormats.

  • ||

    I'll settle for on the inside of cop sunglasses.

  • ||

    lol

  • Colored People||

    I'd buy one of those.

  • ||

    Actually, if it were, perhaps citizens would have a positive defense for vigorous resistance of police invasion: "But your honor, the Fourth Amendment was printed right there in fluorescent letters on my doormat! I posted fair warning!"

    I also like JW's suggestion RE police sunglasses. Maybe laser-etched on their corneas -- might improve their myopia, too!

  • ||

  • creech||

    A judge in Penna. just dismissed a case whereby the cops claimed they stopped a car of teenagers at 2:30am because their air freshner on the rear view mirror was obstructing the view.
    Once car was stopped, the cops found spray paint and other tools that had just been used to vandalize the local high school. Judge said the air freshner wasn't blocing any view (i.e. you cops can't use ridiculous excuses.)
    I guess cops were too stoopit to use the old "we saw this car swerve out of its lane: excuse.

  • BeesInTheBrain||

    Or the old, I just heard a report that a neon green Gremlin like you are driving was used in a robbery.

  • ||

    Kozinski writes the best dissents. Too bad they're dissents.

  • ||

    Well, I guess Judge K can kiss that SCOTUS nomination good-bye.

  • ||

    Heh. I was just thinking the same thing. "This man needs to be on a higher court." Fat chance.

  • ||

    The chance of him being appointed to the supreme court is about the same as the chance of Ron Paul winning the presidency. Slim, but non-zero, especially if the government continues to drive the country over the cliff.

    -jcr

  • C-Dog||

    Anyone else surprised by this dissent being written in plain English?

  • Warty||

    A judge who uses bupkes in an opinion has got to be a good guy to do lines with. Got to.

  • ||

    You silly, silly commenters. Aren't you aware that the great libertarian 4th amendment legal expert Orin Kerr (at Volokh.com) says Kozinski is completely wrong to suggest this is anything new or earthshattering. There were, according to Kerr, numerous precendents, so this "bupkes" claim is just...bupkes.

  • ||

    Fuck Orin Kerr

  • Ryl||

    Kerr isn't a libertarian. If you've ever followed his posts at VC, he's far more interested in baiting libertarians (such as his co-bloggers, or Judge Kozinski) than in criticizing government overreaching. One gets the impression that he's trying to position himself to be the sort of "conservative" that a mainstream Republican could appoint to a court without too much opposition from Democrats.

  • ||

    I agree. When I go view volokh.com I get the distinct feeling of being in a wishy washy political site. We will have to wait and see what scrotus makes of this. My feeling is that being as blatantly anti-4th that it will be nixed.

  • Alex||

    I guess we all need to have stronger security systems in our homes to protect against the government. Sad times.

  • ||

    Had I had a comlete video system in my home the evening of November 6, 2006 there would be no question about my being pulled from my home at gunpoint with there being no warrant and my being seen through an open glass front sitting in my den, this after my son is sent in wearing a police wire. Warrant appears later and presents as a possible backdate, bearing the blue ink sign off by the honorable judge backdating SOB. Laws, ethics, all gone.

  • ||

    PS - oh yeh, "ommission" of this sole event. No history and no acts committed. Sieg hiel (however ya spell it).

  • ||

    One thing it seems everyone is forgetting is that for there to be a search at all, that the person must be under arrest. With regards to cars they can only search for things involved with the crime they have arrested you for. We need to start petitioning our states, and congress critters, to restore the 4th amendment. Revolution is soon upon us, which side will you be on?

  • ||

    Aside from the Terry stop?

  • ||

    ""One thing it seems everyone is forgetting is that for there to be a search at all, that the person must be under arrest.""

    Assuming your not just talking about cars, ever hear of stop and frisk policies?

    http://www.nycmagazine.com/200.....k-program/

  • ||

  • ||

    Welcome to a post bush crime family
    A-merry-ca! You folks are very funny
    but missing the damn point!

    See what happens when you let the Devil aka white people without a conscience and those who they tricked
    to believe "Greed is Good"! Money
    has no alliance to "Colored People"!

    We hope that most of you all stop the
    hatred and start loving each other
    because it's much easier! As the Tea
    Party phool's say Continue to follow
    our Constitution whom many have died for!

    P.S Bikini Atoll is a great place for
    the conservatives to raise their young! Sucking the breast milk of hate
    there would be harmless to decent folks!

  • ||

    Wow, I'm kinda stunned to come here and see that this is okay with most of you Libertarian types. Please don't let the brain dead Republicans and their twisted policies of the last 30 years infiltrate your thinking. Privacy should still be sacrosanct and vigorously defended.

  • Kenneth R. Jackson||

    Tell you what, you come into my house unannounced and uninvited, I wll kill you in the entrance and anyone who steps over your corpse. They may kill me, but I guaren ball bearin that I will kill some of you first.

  • ||

    We all can thank Bu$h for killing the 4th amendment with the unPatriot Acts. Sadly, cops think we still live in Bu$h's police state.

  • ||

    Get with the program. We had a vote so the name has changed. It is now the Obama Police State.
    I think anytime Congress tries to pass an all-encompassing act that is intended to fundamentally change a major part of American law or economics we should look at the proposed law with extreme suspicion. That goes double if they load it with some cutesy title whose initials form some politically popular acronym. And it is no refutation merely to say that no one has yet been harmed by the law. I can name two examples where the law was on the books for years before it was misused to the disadvantage of some minority group.

  • ||

    HELLO CONGRESS? Every one of these judges in the majority should be impeached, immediately! Such blatant miss-application of the Law is a crime.

  • ||

    Don't forget...judicial immunity! Hell, qualified immunity is practically absolute in the war on drugs.

  • ||

    Just noticed - Mr. Torture hisself - Jay Bybee - was on the 3 judge panel that originally heard the appeal. So is there any doubt that this criminal suckass should get his ass impeached from the Fedral bench?

  • ||

    Evidently, your bigotry is bathing in a foreign-language alcohol.

    Are you unable to express your prejudices in English?

  • ||

    Amazing. It's the right wing nuts that call Obama communist etc. Yet it is the conservative 9th district judges probably appointed under Bush who trash the constitution. Just like every other so called right wing cause, they righties will switch off it in a flash if Obama or the main stream Dem's are for it. I think the way to beat them right now is to have Obama for anything he really wants not to happen. And vice versa.

  • ||

    Actually the current composition of the 9th is mainly democrat (15-11) with the vast appointees coming from Clinton (12). And no, we conservatives don't call Obama a communist. Socialist, yes.

  • ||

    Obama is only as much of a socialist as this country will allow him to be. Simply because someone is portrayed as a "tax raisin some bit*h" does not in any way make them socialist. We are a FASCIST country with certain socialist policies. We were that way under Bush 1 and 2, Reagan and any other conservative that you can name all the way back to FDR.

    Let me ask you something brainiac.

    How can Obama be this "tax and spender" that you talk about when the only actual tax hike passed into law under the Obama administration is the tax on cigarettes?
    Every other tax passed on Obama's dime has LOWERED said tax's rate.

    If you think that Obama is different from Bush. Who is different from Clinton. Who is different from Bush. Who is different from Reagan. Who is different from Carter. Etc.....
    Then think again.

    Look. I am not an Obama fan. Every single politician, save maybe one or two, on Capital Hill is a crook and they should be tried for treason. They are all caught up in the money machine that is the corporation known as The United States Of America.

    If you look up the definition of the United States Of America in Black's Law Dictionary then you will notice that it is defined as a coporation.
    That is right. Our Federal Government, not our Country (they are two totally separate entities), is a CORPORATION, and we "14th Amendments Citizens" are its EMPLOYEES.

    That is called FASCISM my conservative brother.
    Or more correctly....

    Corporatism.
    Learn the law. The coup took place a long time ago and these recent actions only solidify the death of what was once a promising country.

  • ||

    Wow, most instructive. I do not claim to know it all, so thanks for the tutoring. I do agree, the country is in the hands of money-grubbing fools; party politics is a distractor.

  • ||

    hmmmm.... and who appointed the 'justices' (sic) of the 9th circuit?

    gee according to the wiki... the majority were appointed by either carter or clinton... so much for our progressive presidents...

    time to feel betrayed...

  • ||

    This is very serious. We are losing our rights, and this shows an example of our becoming a police state. We're in trouble.

  • ||

    Surely, it is no coincidence that one of the justices who voted to erase the 4th Amendment is the infamous torture advocate, Jay S. Bybee.

    Although the epithet is wildly overused, sadly, it is not yet obsolete: We really do have at least one Nazi on the court. And he is very dangerous.

  • ||

    First they came for the Communists, and I didn’t speak up, because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up, because I wasn’t a Jew. Then they came for the Catholics, and I didn’t speak up, because I was a Protestant. Then they came for me, and by that time there was no one left to speak up for me.”by Rev. Martin Niemoller, 1945

  • ||

    What idiot would hide his pistola in the couch cushions? He should have known the Nazi Cops are always on the look out for loose change. Duh!!

  • ||

    Cops that would search without a warrant would lie about where they found the gun.

  • ||

    Respectfully Dusty, my coppers (violators) claimed I made two confessions of possession AND distribution. Funny how it took getting to a certain impotent display of collusive discovery for there to appear a sheet purportedly composed by the designate incompetent who sent my son to my house wearing a wire; the sheet said...wait for it..."we ain't gotno stinkin' video!" What forethought. Grainy photos abound and no metadate on photos; hmmm, sounds like video grabs to me. I had two pistols in a safe; these guys, composing backdated documents, state they "located" my pistols in a safe. Guess that leaves open for interpretation whether or not there was a locked safe and how it was entered.

  • ||

    We should all commit suicide and give the land back to the native tribes of this land. the constitution was written in their blood anyway. this thing has been a farce since day one.

  • ||

    Cokehead drunken Shrub said "it's just a goddamed piece of paper"

    iamthewitness.com

  • gidsek||

    How come nobody ever makes a tyypo or spells rong on this cite?

  • ||

    Uh...2nd amendment says all (competent, adult) citizens have the right to bear arms. If this would be valid anywhere it would be valid within ones own home...

    There's a reason they gave us the 2nd amendment, and there's a reason it's the 2nd amendment not the 5th or 8th or last.

    The original Bill of Rights didn't limit *the citizens* it limited the GOVERNMENT.

  • ||

    there is no such thing as Law, only interpretation of Law. We do live under martial law, just the Govt is scared to tell us.

  • '"<hoho>"'||

    '""'
    good

  • ||

    Anyone that has to take on the "system" will realize that there is no justice for the weak. Power stands behind the strong arm of the law and if you resist you learn a bitter lesson. Welcome to Amerika.

  • ||

    Amen

  • ||

    This case was ruled by JAY BYBEE, the author of the memo's that allowed torture. Way to go OBAMA for not bringing the sad sack of shit to trial

  • ||

    Obama does not get it. He is a a real nutt case. It appears that he makes it up as he goes on policy issues.

  • wizard of oz books||

    great article

  • ||

    The NWO at work taking away more of our freedoms.

  • ||

    Prisonplanet dot com
    Infowars dot com

  • ||

    Here is a link to the ruling. Those in favor were Republicans and with the exception of Kozinski the dissenters were Democrats:

    http://www.ca9.uscourts.gov/da.....-30385.pdf

  • ||

    The constitution also say's that government officials that violate the constitution no longer represent the US government. And judges can sit in the bench during times of good behavior. This isn't good behavior.

  • ||

    I would go and say that for a judge to think he can over-rule the constitution would make that person in direct violation of his position.

    The constitution can only be amended with the following criteria

    * Two-thirds of both houses of Congress vote to propose an amendment, or

    * Two-thirds of the state legislatures ask Congress to call a national convention to propose amendments. (This method has never been used.)

    no Judge has that the power to amend the constitution. lets never forget that. Any officials that break the inherent laws of the constitution willfully, shall forfeit any right to represent the US Government in the position they currently hold.

    Since breaking the laws of the constitution can be viewed as treason to the US, or High crimes against the US.

    what we can do as the people of the US is impeach those officials that believe they are above the law.

    Impeachment
    Article 2, Section 4, specifies that "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." These "civil officers" include federal judges and cabinet members, but do not include Senators and Representatives, (the Senate and House deal with misconduct by their own members).

    I server 6 years in the US Marine Corps to protect the Constitution.

    A Marines first Commitment.
    I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

    These Judges in my opinion are domestic enemies of the State and need to be impeached. All federal, state officers need to be reminded of the oath they took.

  • ||

    Yep, gone the Fourth is. I was pulled from my residence, having committed no acts and having no criminal history, after a search of my residence was conducted by my oldest now estranged son while he wore a wire owned by local police. Oh, did I mention no warrant, but one appears months later with all apparency of potential backdating? DARE is a snitch indoctrination with the family as its target; all police "warrant executions" should be video taped in this the NEW MILLENIUM. Legislation and conduct should be implimented to prevent backdating of so-called "warrant documents."

    Gone is the Fourth; has been

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