[IP] Court Opens Door To Searches Without Warrants
...... Forwarded Message .......
From: "Alex R. Cohen" <arc@xxxxxxxxxxxxx>
To: dave@xxxxxxxxxx
Date: Thu, 29 Jul 2004 11:48:46 -0400
Subj: Re: [IP] Court Opens Door To Searches Without Warrants
Dave:
The decision in United States v. Gould is by the Fifth Circuit, which
covers not only Louisiana (as mentioned) but also Texas and Mississippi.
That said, a glance at the decision shows it's not as bad as the excerpt
from the news article makes it sound.
The officers entered the defendant's home with the permission of someone
who lived there, for the purpose of speaking to the defendant. They were
told he was probably sleeping and shown the entrance to his bedroom. The
door to that bedroom was open, and they could see that he was not in bed.
Having been told that the defendant intended to kill two judges, the
officers may well have been concerned that the reason he was not in bed
when the other resident of his mobile home thought he was, was that he knew
there were cops in the place and intended to ambush them. They executed a
"protective sweep," looking in places where a man might conceal himself to
make sure he was not ready to spring out and attack them.
What the holding in Gould does is expand the range of situations in which
the police may do a protective sweep beyond those in which they are already
arresting someone in the home. But it also explicitly affirms five
limitations on protective sweeps:
1. "[T]he police must not have entered (or remained in) the home illegally
and their presence within it must be for a legitimate law enforcement
purpose." This case does not expand the authority of police to enter homes
by one iota. It does not affect their authority until they are already in
the home.
2. "The protective sweep must be supported by a reasonable, articulable
suspicion that the area to be swept harbors an individual posing a danger
to those on the scene" (quotations and citation omitted). Thus this is not
permission to search for weapons, drugs or other inanimate evidence. Under
established Supreme Court doctrine, if police have the authority to be
somewhere and, while there, see contraband in "plain view," they are not
required to ignore it merely because they were not authorized to search for
it. But had the weapons police saw in the closet been concealed in boxes
too small to hide a person, the police would not have been empowered to
open those boxes, and they would have come within a few feet of the weapons
without knowing they were there.
3. A protective sweep is a "cursory inspection," not a "full search." Thus
it is limited to the kind of search necessary to determine whether a person
is hiding someplace. Since a closet is usually big enough to hide a person,
police doing a protective sweep may open the closets. But they may not open
desk drawers, cardboard boxes, file cabinets, etc.
4. The protective sweep is limited to the time it takes to dispel the fear.
Once they know they're not going to be ambushed, the police must stop the
protective sweep.
5. The protective sweep is limited to the time police are justified in
remaining on the premises. Although they may use the sweep to ensure the
safety of their departure once they realize they must depart, they must
still depart promptly once their reasons for being legitimately in the home
expire.
-- ALEX R. COHEN, J.D. * * * * * * * * * * * * * Doctoral student,
philosophy program City University of New York arc@xxxxxxxxxxxxx
www.arclights.net * * * * * * * * * * * * * LIBERTY
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