{"id":9846,"date":"2014-01-31T08:35:38","date_gmt":"2013-11-22T16:30:50","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-11-22T16:30:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=9846","title":{"rendered":"FL1: Warrantless entry to arrest rape suspect without search or arrest warrant violated 4A; warrant clause ignored"},"content":{"rendered":"

Defendant allegedly raped a woman and stole her purse and her cell phone. The police tracked the phone to where he was staying, but they milled around outside for hours, and then they decided to do a knock-and-talk at 5 am because they declined to get a search warrant, not wanting to compromise the technology used to track the phone. Defendant\u2019s girlfriend refused admittance, and said to come back with a warrant. When she attempted to shut the door, the first officer blocked the door shutting with his foot and then they pushed their way in. The entry violated the Fourth Amendment. Thomas v. State<\/a>, 127 So. 3d 658 (Fla. 1st DCA 2013):<\/p>\n

<\/p>\n

In the early morning hours of Saturday, September 13, 2008, a young woman reported that she had been raped and that her purse, containing a cellular telephone, had been stolen. Approximately 24 hours later, police were able to track her cell phone to the apartment Mr. Thomas shared with his girlfriend. The investigators settled on a specific apartment “shortly after midnight” or “approximately 1:00 to 2:00 a.m.” on September 14, 2008. For the next few hours, six or seven police officers milled around outside the apartment, but made no effort to obtain a search warrant.<\/p>\n

They did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal. “[T]he Tallahassee Police Department is not the owner of the equipment.” The prosecutor told the court that a law enforcement officer “would tell you that there is a nondisclosure agreement that they’ve agreed with the company.” An investigator with the technical operations unit of the Tallahassee Police Department testified: “[W]e prefer that alternate legal methods be used, so that we do not have to rely upon the equipment to establish probable cause, just for not wanting to reveal the nature and methods.” He also testified: “We have not obtained a search warrant [in any case], based solely on the equipment.”<\/p>\n

The police eventually decided to knock on the door and ask for permission to enter, and, at about five o’clock in the morning, three Tallahassee police officers knocked on the door of the apartment, and identified themselves as policemen. After about a minute, Mr. Thomas’s girlfriend, Ms. Simmons, answered the door in her night clothes. Learning they did not have a warrant, she told them to come back when they had one, and attempted to close the door, but a police officer placed his foot inside the doorway to prevent her closing the door, removed her from the apartment, commanded anyone else inside the apartment to come outside, and entered the apartment with other officers.<\/p>\n

. . .<\/p>\n

The trial court’s conclusion that the police entry into the apartment was lawful was error. Our “analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment\u2014subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted).” Arizona v. Gant, 556 U.S. 332, 338 (2009). The warrant requirement is among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Johnson v. United States, 333 U.S. 10, 17 (1948).<\/p>\n

The home is at the “very core” of the interests the Fourth Amendment protects, and enjoys the maximum protection it provides. See Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013). While the home Mr. Thomas and Ms. Simmons shared might not fit some definitions of a traditional home, overnight houseguests have a legitimate expectation of privacy even in temporary quarters. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990). The Fourth Amendment guarantees to the people “[t]he right … to be secure in their … houses … against unreasonable searches and seizures.” Unwarranted “searches and seizures inside a home” require special scrutiny. Payton v. New York, 445 U.S. 573, 586 (1980). Government agents’ warrantless entry into a home is presumptively, constitutionally unreasonable.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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