{"id":4138,"date":"2010-06-06T13:26:05","date_gmt":"2010-05-06T08:07:08","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-05-06T08:07:08","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4138","title":{"rendered":"CA9: Officers lacked PC to arrest and search defendant as a potential burglar in his own backyard"},"content":{"rendered":"

The police received a 911 call that a man with a backpack climbed over a neighbor\u2019s fence and might be a burglar. The police came, kicked open the gate and stopped the defendant, who matched the description and had a backpack in hand. They searched the backpack finding a gun, and he was a former felon. It turned out he lived there. The officers lacked probable cause to believe that he was committing a burglary because he had not attempted to enter the house. Viewing his presence as at least a trespass, the police were doing what we objectively expect of them. They did have at least reasonable suspicion, but not probable cause, and they could have asked him his name since he was posing no threat when they drew down on him. The government\u2019s stretch to apply exigent circumstances to their conduct was rejected. [This is an interesting analysis of exigency and entry into the curtilage.] United States v. Struckman<\/a>, 603 F.3d 731 (9th Cir. 2010):<\/p>\n

In a case closely analogous to this one, the Sixth Circuit concluded that \u201c[t]here is simply no legal support for holding that an ongoing criminal trespass, on its own, constitutes an exigency that overrides the warrant requirement.\u201d United States v. Washington<\/a>, 573 F.3d 279, 287 (6th Cir. 2009). We agree. The risk from an ongoing crime can sometimes make a critical difference in determining the reasonableness of police conduct. See Georgia v. Randolph<\/a>, 547 U.S. 103, 126 (2006) (Breyer, J., concurring) (discussing instances of domestic abuse); see also United States v. Hensley<\/a>, 469 U.S. 221, 228 (1985). But in the absence of any \u201cimmediate and serious consequences,\u201d McDonald v. United States<\/a>, 335 U.S. 451, 460 (1948) (Jackson, J., concurring), resulting from the commission of a crime, the \u201coverriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,\u201d Payton<\/a>, 445 U.S. at 601, militates against warrantless entry.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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