{"id":3879,"date":"2010-02-20T19:00:53","date_gmt":"2010-02-20T09:57:50","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-02-20T09:57:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3879","title":{"rendered":"CA9 (Kozinski dissenting): Plain view encourages violations of the Fourth Amendment"},"content":{"rendered":"

In dissenting from denial of rehearing en banc<\/a> in United States v. Lemus, 08-50403 (February 18, 2010) (panel decision of September 22, 2009 here<\/a>) Chief Judge Kozinski laments the near death experience of the Fourth Amendment where the police got to conduct a plain view of the interior of a house without reason. In short, plain view encourages violations of the Fourth Amendment.<\/p>\n

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person\u2019s home without a warrant, without probable cause, without reasonable suspicion and without exigency\u2014in 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\u2019s home. Once inside, the police managed to turn up a gun \u201cin plain view\u201d\u2014stuck between two cushions of the living room couch\u2014and we reward them by upholding the search.<\/p>\n

Did I mention that this was an entry into somebody\u2019s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the \u201cgovernment bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.\u201d United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). The place where warrantless searches are deemed \u201cpresumptively unreasonable.\u201d Payton v. New York, 445 U.S. 573, 586 (1980).<\/p>\n

Government encroachment into the home, which I lamented three years ago in United States v. Black, 482 F.3d 1044, 1045-46 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus\u2019s home after he was arrested just outside it. 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.<\/p>\n

Whatever may have been left of the Fourth Amendment after 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.<\/p>\n

. . .<\/p>\n

3. How has it come to this? There\u2019s a simple answer: Plain view is killing the Fourth Amendment. Because our plain view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it. <\/p>\n

This is a case in point. While the officers were finishing their room-to-room sweep of Lemus\u2019s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in \u201cplain view.\u201d So, the detectives went in and, while there, Diaz thought he saw \u201csomething sticking out from the couch\u201d that \u201clooked like the butt of a weapon.\u201d Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion \u201cto make sure\u201d and found a gun. Id. at 961. Under what theory of \u201cplain view\u201d may police lift cushions off a couch to make sure something is contraband? Why weren\u2019t the officers required to get a warrant\u2014if they could\u2014based on what they saw, before rummaging through the couch?<\/p>\n

. . . <\/p>\n

Plain view encourages the police to find every possible loophole to get themselves into a place where they can take a good look around, discover some evidence and then get a warrant to seize what they already know is there. This tiresome two-step is the new dropsy evidence. As often as not, the chance of hitting the plain-view jackpot is what drives the police into a man\u2019s house, his doctor\u2019s office or his ISP. Carefully drawn limitations in a warrant and narrow justifications for exceptions to the warrant requirement are becoming afterthoughts. \u201cPolice officer safety,\u201d the narrow justification in Buie, had nothing to do with this search. Gathering evidence did. We should not abet such skirting of the Fourth Amendment by the police; it only encourages them to do worse.<\/p><\/blockquote>\n

See also Courthouse News Service<\/a>, ABAJournal<\/a>, WitnessLA.com<\/a>, Last Blog on Earth<\/a>.<\/p>\n

It’s hard to believe that only one other judge signed on to this, and 22 remained silent, thereby encouraging more plain view subterfuge. <\/p>\n","protected":false},"excerpt":{"rendered":"

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