Gone: 4th Amendment Protection Against Unreasonable Searches

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Ever wonder how a fish in a bowl feels? Some people are nice and give them a few plants, or even a castle where they can escape the constant prying eyes of ogling idiots. Take away that castle, and they are completely exposed. The Fourth Amendment used to be a family protection plan for our own castle. Now the Fourth Amendment is weaker than ever and that family protection plan must be created on our own. We are starting to know how the little fishies feel.

Judicial Trend

Recently the 9th Circuit denied rehearing a case which permitted police to search a home without any suspicion whatsoever. The Chief Judge of the 9th Circuit, Alex Kozinski, penned an artful dissent, pointing out the damage done by allowing such a decision in the lower court to stand. Although case law of all other Circuits is contrary to the ruling in the case, Judge Kozinski points out that the case law in the 9th Circuit should have led to a similar ruling.

So what does this mean for us? First, the law/government/constitution will not always protect you, protect family or friends from intrusion. It is up to individuals to take measures to have a family protection plan. Fortunately, tools for a family protection plan still exist. Things like anonymous web surfing, encrypted email, cell phone security, and protecting your Facebook profile, when used together, can carve out a private area inside the fishbowl where you and your family can avoid the watchful eyes of the idiots.

Text Of The Dissent

Here is a significant portion of the text of Judge Kosinski’s Dissent. We will see how much influence the Chief Judge of the 9th Circuit can have on privacy protection.

UNITED STATES OF AMERICA v. JUAN HERMAN LEMUS

Dissent by Chief Judge Kozinski ORDER

…The call for this case to be reheard enbanc is DENIED. Chief Judge KOZINSKI, with whom Judge PAEZ joins, dissenting from the denial of rehearing en banc:

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person's home without a warrant, without probable cause, without reasonable suspicion and without exigency – in 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's home. Once inside, the police managed to turn up a gun u201Cin plain viewu201D – stuck between two cushions of the living room couch – and we reward them by upholding the search.

Did I mention that this was an entry into somebody's 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 (citation omitted) The place where warrantless searches are deemed u201Cpresumptively unreasonable.u201D (citation omitted)

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's 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.

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.

[HowToVanish Note: Judge Kozinski continues applying the facts of the case to the law following this excerpt. He did not actually include this image from The Graduate in the dissent, I'm sure just an oversight on his part. You can read the full text here. I have edited this post to include only the best nuggets of exasperation and outrage that I don't want you to miss out on.]

…The panel says the police could enter the home – with no suspicion whatsoever – because Lemus's living room u201Cimmediately adjoinedu201D the place surrounding the arrest, (citation omitted) but Buie only authorizes a suspicionless search when the police make an u201Cin-home arrestu201D (and then only for a small area near the arrest, not a grand tour of the entire apartment). (citation omitted). Here there was no in-home arrest. How do we know this? Because the opinion says so:

After making the arrest, Longoria u201Csentu201D the patrol officers u201Cinu201D to Lemus's apartment. (citation omitted). Officers who are already inside an apartment don't need to be sent in….

If the police surround a suspect's home, guns drawn, and order him out – and he complies – may the police go rummaging through his home without suspicion because the suspect was arrested when he was inside? Surely not…

3. How has it come to this? There's 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…

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's house, his doctor's 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

Conclusion

Use How To Vanish the book as a personal and family protection plan. Learn how to rely on yourself rather than on others who might be distracted by the competitive business of law enforcement. Your plan might also be an important tool for saving you in taxes.

Reprinted with permission from How to Vanish.

Bill Rounds, J.D. is a California attorney. He holds a degree in Accounting from the University of Utah and a law degree from California Western School of Law. He practices civil litigation, domestic and foreign business entity formation and transactions, criminal defense and privacy law. He is a strong advocate of personal and financial freedom and civil liberties.

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