Fourth Amendment

Can Cops Invade Your Home Just Because You're Scared of Them? Could Be.

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SWAT
Department of Defense

In the wake of news reports of the invasion of Louise Goldsberry's home by US Marshal Matt Wiggins and a posse of 30 or so federal and local cops, Tom Lyons, the Sarasota Herald-Tribune reporter who originally covered the case, asked a very good question: Was it legal for the officers to use Goldsberry's frightened reaction to having a gun pointed at her through her kitchen window as a pretext for searching her home? That's the sort of question more journalists should ask. But the answer is a bit murky, leaning toward unsettling.

Writes Lyons:

A Sarasota lawyer emailed me to insist that was an illegal entry, flagrant and simple. But the more I have read — and after asking the past president of the Sarasota County Bar, Derek Byrd — the more that became unclear.

Byrd says it sounds improper, and may well have been. But the big argument would be about why police thought a suspect was in that apartment. …

From what Byrd can see, "they didn't have enough." But he said it could depend on the information that brought them there.

An anonymous tip?

"That has zero credibility," Byrd said.

But if the agent could provide more information to a judge, it might become more convincing.

Even so, there is the issue of Wiggins suddenly assuming he had the right door in the complex because of Goldsberry's reaction.

"Things can happen that legitimately arouse suspicions," Byrd said, and police can act on reasonable conclusions.

The magic phrase here is "exigent circumstances," which is sort of a legal hex cast by law enforcement officers to make the Fourth Amendment go away. On a more serious note, courts let police enter premises if police have probable cause, or reason to fear loss of evidence or danger to people if they wait for a warrant.

As you might guess, exigent circumstances can be in the eye of the beholder, who is always wearing a badge, and they tend to broaden in definition with time. Law professor and legal blogger Jonathan Turley uses the Goldsberry case as an example of just how loosely the term is being interpreted. As he puts it, "So, police can show up in what looks like a hunting vest at a kitchen window and point a gun into the face of a woman. If she screams and crawls away, that is sufficient to bust into the apartment, drag the occupants outside, and handcuff them in public."

That the "exigent circumstance" in this case was created by the police themselves by pointing a gun through a window and scaring the shit out of an innocent woman would seem to raise some doubts about the righteousness of this particular home invasion, but even that is uncertain. The US Supreme Court addressed the issue of police-created exigencies in the case of Kentucky v. King. Samuel Alito wrote for the majority, "The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment."

Pointing a gun through a kitchen window may be cruel and insane, but it may not, in itself, threaten to violate the Fourth Amendment — just human decency. The FBI provides the following guidance on its Website with regard to police-created exigent circumstances:

In holding that the exigent circumstances exception applies as long as the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment, the Court eliminated the confusion inherent in the tests used by the lower courts. The rule announced by the Court clearly allows officers confronted with circumstances, such as those present in King, to take appropriate steps to resolve the emergency situation. However, officers must be mindful of the fact that they cannot demand entry or threaten to break down the door to a home if they do not have independent legal authority for doing so. According to the Court, to do so would constitute an actual or threatened violation of the Fourth Amendment and, thereby, deprive the officers of the ability to rely upon the exigent circumstances exception.

So long as the conduct of Wiggins and company isn't interpreted as threatening to enter Goldsberry's home without her consent, they may be in the clear, Fourth Amendment-wise (though I'd like to think threatening an innocent person in her own home with a deadly weapon would be otherwise actionable).

As Lyons concludes:

That's why your castle is only secure from a warrantless police invasion until a cop decides, without asking any judge, that he has cause to go in. If he kills you while doing it, guess who gets blamed?

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  1. However, officers must be mindful of the fact that they cannot demand entry or threaten to break down the door to a home if they do not have independent legal authority for doing so. According to the Court, to do so would constitute an actual or threatened violation of the Fourth Amendment and, thereby, deprive the officers of the ability to rely upon the exigent circumstances exception.

    So, actually violating the 4th amendment isn’t a crime, but talking about it is?

    Yeah, that sounds about like the government I know.

    1. officers must be mindful of the fact that they cannot demand entry or threaten to break down the door to a home if they do not have independent legal authority for doing so.

      How is pointing a gun at someone not a threatened violation of the Fourth Amendment? Are we going to say that the police have to verbally demand entry?

      Another thought; pointing a gun at someone without legal justification is assault. How is this cop not up on charges? And how is it that verbally demanding entry negates the “exigent circumstances”, but committing assault does not?

      1. FYTW.

        Pretty much the same fucking we’ve been getting.

      2. More specifically, I think their reasoning is that cops can’t be considered to be “physically” threatening a citizen while pursuing a fugitive, because running around with a gun drawn would be threatening to pretty much everyone. I believe they’re only considering verbal threats, here.

        1. There’s a difference between having a gun drawn, and pointing it at someone. Fucking muzzle discipline, how does it work?

          Consider nearly any hunting party, which is chock-a-block with “drawn” weapons in the form of rifles and shotguns. No assault there. Now, point one of those guns at somebody’s face, and you’ve committed assault.

          A cop who points his gun at someone without legal justification (as in, preparatory to self-defense or in order to arrest a resisting suspect) has committed assault. And, as a reward, they get to use the natural and predictable reaction to that assault to violate the 4A.

          Fucking perverse incentives, how do they work?

          1. I fully agree with you, but we both know this is just another iteration of FYTW.

            It feels so hopeless sometimes. It feels like nobody anywhere has given a shit about actually being free for quite some time.

    1. Thank you

  2. 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.

    Despite the knots it’s been twisted into, the Amendment is clear to anyone capable of reading: “Unreasonable” searches are searches performed without warrants.

    Rubber stamp warrants are another issue, of course.

    1. That’s the current legal standard, but it hasn’t always been so. My plain reading doesn’t suggest that a warrant is required for a reasonable search. If they had wanted a warrant requirement, they would have written it that way. They chose to leave it up to the courts, apparently.

      1. If they had wanted a warrant requirement, they would have written it that way.

        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.

        Seems pretty fucking clear to me, then again, I’m not a constitutional scholar fucking retard.

        1. Aaaah, but they don’t require that a warrant be *issued*, only that warrants that *are* issued comply with the above.

        2. Yeah yeah, but the Framers clearly meant that exigent circumstances obviated the whole warrant requirement. You know, what if there was a monarchist going around waiving his British tea in someone’s face? Assault right there bubba. You think the police should have to wait for a warrant to search him and his house? Crime would be everywhere if there weren’t exceptions to the rules!

  3. That’s why your castle is only secure from a warrantless police invasion until a cop decides, without asking any judge, that he has cause to go in. If he kills you while doing it, guess who gets blamed?

    I like this Lyons guy. He’s one of the few reporters who seems to have better things to do than lick the boots of authority.

    1. The catch is that most idiots that vote would read that and think “Oh, well that’s a relief.”

  4. It’s really no more bullshitty than the Terry frisk. As long as the cops don’t “intend” to find evidence, then there’s no violation. But if they do find evidence, it can be used against you.

    That’s totally what “secure in your person” means.

    1. I’m goddamned sick of you liberal hippie faggots trying to make it easy for pedophiles, murderers, and drug-pushers to evade the police and get off on technicalities and loopholes.

      True fact: 99.99% of all criminals are released from trial due to bullshit loopholes about their “civil rights”. What about the rights of the VICTIMS?!

      The constitution is NOT a suicide pact.

      1. EVEN TRUER FACT:

        99.99% of all citizens are criminals.

        See? Obama wants to lock us all up. FOR OUR OWN GOOD.

        1. He really just sees imprisonment as the logical extension of section 8 housing, food stamps, and Medicare for all.

          1. Everybody is equal in prison.

            Except for the bitches.

            1. Everybody is equal in prison.

              Thank you for giving me an insight into progtard thought processes.

              1. My dad says that cops weren’t this bad until Dirt Harry came out. He said after that movie, the public, cops and judges began criticizing the “he got off on a technicality” thing and all became punishment-obsessed, deranged idiots.

                Imagine that. American justice and constitutional history being shaped by a movie.

                1. Hollywood also invented the three phone call limitation. Thanks, assholes.

      2. Chief: You’re off the case, McGonigle!

        McGonigle: You’re off your case, Chief!

        Chief: What does that mean exactly?

        Homer: It means he gets results, you stupid chief!

        1. Lisa: I’m supposed to talk to you about proposition 305.

          Homer: [Bitter] Mooching war widows…

      3. I smell bacon.

        Gojira = LEO

        1. Smells more like sarcasm.

          1. REDUCTIO AD ABSURDUM PAR EXCELLANCE

      4. I’m goddamned sick of you liberal hippie faggots trying to make it easy for pedophiles,

        Officer Friendly is going to find a twelve-year-old in my back pocket?

        murderers,

        Oh, how did that body get stuck in my hat band?

        drug-pushers

        OK, so the receipt the user signed does fit in my wallet…

    2. I thought “secure in your person” meant you didn’t feel dirty after a night out with Warty.

      1. That’s impossible.

      2. When Warty conducts a stop and frisk, you’re bound to get “stiff” punishment.

        1. You should get want he does to people who make puns.

          1. WORD SALAD!

            *You should see what he does to people that make puns.”

            1. You think that’s bad, you should see what STEVE SMITH does to people that make word salads.

              1. I hear he tosses them.

                1. Back to the pun theme!?

                  Well played.

                  1. Always back to the well played

                2. Did you just call him a “tosser?”

        2. Warty’s version of a stop and frisk encounter is where he grabs the base of your neck and pulls out your spinal column and then fucks your hollowed-out body with his tenticle dicks, turning your insides into a liquified pur?ed mass of organ and tissue rendered hot from the friction.

          1. (shrug) better than watching MSNBC

            1. Nothing is better than listening to the wisdom of Melitha Harrith Perry!

              1. That’s Melitha Harrith Pewwry to you.

    3. And you will be amazed at what constitutes “plain view” if you ever get the opportunity to review police reports. Shaq has nothing on these guys’ ability to peer over the top of shelves.

      Bah! I’m going to bed. See you all tomorrow.

  5. Legal hexes to skirt the law? Please. dunphy told me there is no double standard for police officers.

  6. I am pretty sure this is in the Constitution under the FYTY Clauses.

  7. “If cops continue to play at being an army of occupation, they should
    expect the subjects to play their role in return. Vive la resistance.”
    – J. D. Tuccille

  8. The sick part is if you kill one of these Heroes at 3 am when they bust in your door, you will either be charged with murder or killed. Then the cops will get more staff, equipment, and adoration from the press.

    1. Isn’t it Indiana where they passed a law that says you’re justified in blowing them away?

      It’s also where the cops “occupied” that guys house so they could get a “tactical advantage” on his neighbor. And now he’s suing on 3rd amendment grounds. It seems like a 4th amendment case to me, but what do I know?

      1. What’s the 4th Amendment issue? The cops found it reasonable, so there is no issue, right?

      2. I think there have been cases where people have been justified in self defense against the police, but if they raid your house and you clip one good luck winning in court. I think Dunphy is probably right about high public opinion of LEOs

        1. I think Dunphy is probably right about high public opinion of LEOs

          He’s right, the general public does view cops as heroes, but as has been pointed out, that perception is highly dependent on prior contact with law enforcement.

          IOW, anybody who has had to deal with cops doesn’t like them, but the vast majority of people are lucky enough that they haven’t had to.

      3. No, its Indiana that passed a court decision that says your only remedy for police violating your rights is a legal one.

        You can’t stop a cop from illegally entering your house because *you* be creating a violent situation.

        1. Sorry, I meant to post a preface. You’re wrong, in the wake of that court decision a law was passed last year allowing force to be used against illegal home entry.

  9. IN the US, cops can do whatever they want, whenever they want!

    http://www.Global-Anon.com

    1. Anonbot knows the score.

  10. Nutpunch time everyone! FTA:

    Police officers responding to a burglary alarm call went to the wrong house because of poor lighting and fatally shot an armed homeowner, according to a search warrant affidavit released Wednesday.

    Officers B.B. Hanlon and R.P. Hoeppner were dispatched to 409 Havenwood Lane at 12:51 a.m. May 28. But after arriving at 12:58 a.m., they “inadvertently began searching” across the street at 404 Havenwood, where 72-year-old Jerry Waller lived.

    Officers “approached the west side of the house near the garage that is located on the southwest corner of the home with the knowledge that there was a possible burglary in progress. There is no lighting around the home and the officers had only the use of their flashlights,” according to the affidavit.

    As the officers approached, they encountered Waller, who “was armed with a handgun standing near the corner of the home,” according to the affidavit.

    The officers identified themselves and ordered Waller to drop the gun, but he pointed it at the officers, prompting Hoeppner to shoot Waller, according to the affidavit.

    Waller was pronounced dead at 1:26 a.m. inside the garage.

  11. Article continued:

    “My father never stepped outside of his garage,” son Chris Waller told the Star-Telegram the day after the shooting. “He was shot multiple times in the chest only a few steps away from the doorway to his kitchen.”

    Former Councilwoman Becky Haskin, who lives two doors down, said the entire neighborhood has been waiting for an answer from the city about what happened that night. She said the question of why officers fired six times on a homeowner in his own garage remains unanswered. “His wife said she heard yelling and then gunshots immediately following,” Haskin said. “I think they [the officers] got startled.”

    Haskin said the Police Department’s silence likely involves fear of a lawsuit. “I think the Police Department is just waiting to see how much they’re going to get hit by the Wallers’ attorneys,” Haskin said.

    Police are investigating the shooting. Police Chief Jeff Halstead said Wednesday that the two officers have returned to full-time duty, but he declined to comment further.

    An autopsy on Waller has also been completed. On Wednesday, however, the Tarrant County district attorney’s office sent a letter to the attorney general’s office, contending that the autopsy report should not be released to the Star-Telegram because of the pending investigation.

    Fucking apes; the lot of them.

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