Baltimore Sun editorial: DNA testing: Why not just trash the Fourth Amendment?

I found Dan Rodricks' commentary regarding DNA testing and the recent Maryland Court of Appeals ruling ("DNA: Why wait for an arrest?" May 3) to be quite interesting. He states at the end that he can't think of a good argument against his position that we should all give DNA samples to the authorities whether we have been accused of a crime or not. Well, Dan, I've also thought about how useful having a large repository of DNA can be. Unsolved crime and a city mayor on your back? No problem! We'll just take some DNA from our bank, plant it at the scene, and say that it was left there.

DNA evidence would surely trump any factual alibi, so no problem, case closed, someone (whether guilty or not) now behind bars, and the mayor's happy. Don't believe it could happen? Think again. Planting "evidence" is not unheard of.

. . .

Of course, we could simply scrap the whole Fourth Amendment and allow the government to enter our homes and search them whenever they felt like it, all in the name of proving our innocence. If we have nothing to hide, why should we not give them free reign and not require things like probable cause and warrants?

Officer following a DUI suspect home watched defendant pull into his garage. As the garage door was closing, she stuck her foot in to stop the door from closing. This was an unreasonable entry of the home without a warrant or exigent circumstances. The police had probable cause, but all the state's claimed exigent circumstances were considered and rejected. State v. Dugan, 47 Kan. App. 2d 582, 276 P.3d 819 (2012):

The United States Constitution draws a line at the threshold of a person's home over which law enforcement officers may not step without a warrant from a judge or exigent circumstances so compelling as to override that fundamental right. The Fourth Amendment's prohibition against unreasonable searches of dwellings or seizures of their occupants reflects a tenet the founders considered essential to the ordered liberty they fought a war to achieve and then cherished as this nation matured. That prohibition is no less significant nearly two and a half centuries into this country's maturation. The comparatively mundane facts of this case belie the magnitude of the constitutional right and the significance of the constitutional issue—when government agents may claim exigency to override Fourth Amendment protections of citizens in their own homes.

I. Factual and Procedural History

The Douglas County District Court denied a motion to suppress evidence a Lawrence police officer obtained after she stuck her foot in a garage door to keep it from closing and then entered a private home to search and seize Defendant Troy E. Dugan based on a reported misdemeanor traffic offense. The district court found the officer's actions did not offend the Fourth Amendment to the United States Constitution. Although the question might be closer than some, we do not share the district court's tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted.

. . .

The courts have generally recognized four types of exigent circumstances that may obviate the warrant requirement: (1) preventing harm to law enforcement officers or others by capturing a dangerous suspect, see Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); (2) securing evidence in the face of its imminent loss, see King, 131 S. Ct. at 1853-54; (3) hot pursuit of a fleeing suspect, see United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976) ; and (4) thwarting escape of a suspect, see Welsh, 466 U.S. at 754. Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (noting those exigent circumstances); United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010) (cataloging exigent circumstances). Those categories of exigency are not exclusive, and the facts of a given case might support some different imperative rendering a search or seizure constitutionally reasonable under the Fourth Amendment without a warrant. Struckman, 603 F.3d 743 ("no immutable list of exigent circumstances"); United States v. Plavcak, 411 F.3d 655, 663 (6th Cir. 2005). Likewise, the factual scenario in a given case might implicate multiple exigencies, suggesting a greater likelihood of reasonableness. See Santana, 427 U.S. at 43 (While hot pursuit "was sufficient to justify the warrantless entry into Santana's house," the narcotics officers also had "a realistic expectation" that Santana would try to dispose of illegal drugs on the premises.).

The courts have recognized an allied exception when a warrantless entry reasonably appears necessary to assist persons who are seriously injured or face imminent injury. Brigham City, 547 U.S. at 403 (recognizing emergency assistance doctrine as warrant exception); State v. Geraghty, 38 Kan. App. 2d 114, 123-24, 163 P.3d 350 (2007). The emergency assistance exception to the warrant requirement stands on a somewhat different legal footing than the "exigent circumstances." The exigent circumstances all entail conventional law enforcement functions related to taking individuals into custody or securing evidence. As stated, they require the officers have probable cause. The emergency assistance exception neither implicates that kind of law enforcement action nor requires probable cause. Brigham City, 547 U.S. at 403; Geraghty, 38 Kan. App. 2d at 122. The emergency assistance exception applies when a government agent enters a dwelling or other private place for the purpose of rendering emergency aid to a person in serious peril. The agent must have a reasonable factual basis to believe an emergency threatening life or property is imminent or ongoing and to believe the place entered is associated with that threat. The agent may not use the emergency as a subterfuge to effect a search for evidence or a seizure of a criminal suspect. 38 Kan. App. 2d at 123-24. This case does not implicate the emergency assistance doctrine.

III. State's Claimed Exigencies Insufficient

In this case, the State argues hot pursuit and preservation of evidence justified entering Dugan's home without first getting a warrant. We consider each of those bases in turn and find insufficient grounds to support a constitutional entry, a seizure of Dugan, or a search of him or the premises without a warrant. The United States Supreme Court has noted "the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welch, 466 U.S. at 750.

The state did not prove the standardized policy for an inventory, so it fails in this case. The state does not have to rely on a statute, and policy is good enough. Although case law has not indicated the policy needs to be admitted into evidence, others have said that it is relevant. Berry v. State, 967 N.E.2d 87 (Ind. App. 2012). The court almost, but doesn’t quite, hold that the policy must be admitted. Considering the outcome, that is a logical conclusion:

Despite characterizing Officer Sherrell's testimony as describing the "primary operating procedure prior to towing a vehicle," the record lacks any evidence of Indianapolis Metropolitan Police Department policy on impoundment. (Appellee's Br. p. 4). Thus, we cannot say whether Officer Sherrell's discretion to impound Berry's vehicle was in keeping with such policy. Furthermore, although the State argues that Berry has cited no case law for the proposition that a written law enforcement policy must be introduced into evidence to justify impoundment, we note that other cases have found formal policies relevant in justifying impoundment. See Peete v. State, 678 N.E.2d 415, 420 (Ind. Ct. App. 1997), trans. denied (Indianapolis Police Department policy on impoundment). Consequently, we conclude that the State failed to prove that an exception to the warrant requirement existed at the time of the inventory search of Berry's car.

The smell of raw marijuana coming from defendant’s person, his admission that he smoked earlier, and the small amount in the car not accounting for the smell, a search of the passenger compartment and trunk was justified. State v. Fogel, 2012 Ohio 1960, 2012 Ohio App. LEXIS 1726 (5th Dist. April 19, 2012).*

Defendant was arrested walking out of a building where there was a marijuana grow on the second floor, for which the officers had a search warrant. He lived on the first floor. He said he signed a consent as acquiescence to the officer’s claim of authority. He is entitled to a hearing on the motion because the only document tendered was the criminal complaint generated post-arrest. United States v. Morillo, 2012 U.S. Dist. LEXIS 62590 (S.D. N.Y. May 2, 2012).*

There was probable cause to arrest the defendant for soliciting sex, so the search incident to arrest that produced a syringe was valid. State v. Cavalier, 2012 Ohio 1976, 2012 Ohio App. LEXIS 1738 (2d Dist. May 4, 2012).*

Defendant consented to a search of his computer for evidence of voyeurism. His cell phone was discovered to be an instrumentality of the crime for some of the photographs, so it was properly seized. State v. Dennison, 2012 Ohio 1988, 2012 Ohio App. LEXIS 1744 (6th Dist. May 4, 2012).*

In a search warrant for drugs and “any and all other items related to the purchase, manufacture or sale of illegal drugs,” the police were permitted to seize, in addition to drugs: “(1) 2 flat screen TVs, (2) a camera, (3) a snow blower, (4) a stereo, (5) a dvd player, (6) a refrigerator, (7) an electric range, (8) a washer and dryer, (9) a receiver, (10) a stun gun, and (11) a bicycle.” Considering defendant’s comparatively lavish lifestyle while on unemployment and the seizure of $42,000 in cash from his house, there was justification for the seizure based on the officer’s reasonable belief it was all bought with drug proceeds. State v. Kreuz, 2012 Ohio 1990, 2012 Ohio App. LEXIS 1747 (6th Dist. May 4, 2012):

Detective Jones acknowledged that none of the above items were listed in the search warrant. He testified, however, that based on what he knew of appellant's financial situation, the above high end items could only have been purchased from proceeds appellant received through drug trafficking. Detective Jones cited appellant's properly subpoenaed bank and tax records which showed that appellant was unemployed and receiving weekly unemployment benefits in the approximate amount of $250 a week. This appeared to be appellant's only income. However, a large amount of cash, $42,799, was found in the home. Appellant was also making a mortgage payment of approximately $1,000 a month. Receipts found for some of the items listed above showed that appellant paid for those items with either cash or gift cards. After relaying his impressions to the Wood County prosecutor, he was advised to seize the above listed items.