Compliments of SCOTUS!!!
http://www.latimes.com/news/nationworld/nation/la-na-court-search-20110517,0,6746878.story
http://www.latimes.com/news/nationworld/nation/la-na-court-search-20110517,0,6746878.story
Your fourth Amendment rights just got thrown out with the bath water!!!
- Thread starter ldp4570
- Start Date
- Status
It seems necessary and reasonable have taken on much broader meanings.
Dang, I agreed with Ruth Bader Ginsberg. My life is over as I knew it ...
That makes two of us...
If several of us on this board agree with RBG (and I do), then the sky has indeed fallen. The Republic will not be far behind unfortunately.
Perhaps the OP should post a poll on this???
First hand full... I'm number 5.
Umm...they law has always been like this...nothing new here...and Ginsburg is completely wrong. The law has always allowed search without warrant when exigent circumstances apply. Example....you get go to a house for something benign like your neighbor is playing their stereo too loudly and when you get there you smell marijuana,(the officers in the news story also smelled marijuana) now you have probable cause to believe that a crime is being committed(possession of drugs). Because you smell it burning the courts have also said that it is reasonable the believe that the evidence of the crime is being destroyed with time (its being burned) now you can go in and get the marijuana. These laws have been effect for quiet some time.....
Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.' United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984).
Exigent circumstances may excuse failure to make an announcement or to wait for the occupant to refuse entry. United States v. Mendonsa, 989 F. 2d 366, 370 (9th Cir. 1993). The existence of exigent circumstances is a mixed question of fact and law reviewed de novo. Id.
A search is reasonable, and a search warrant is not required, if all of the circumstances known to the officer at the time, would cause a reasonable person to believe that entry or search was necessary to prevent physical harm to the officer or other persons/the destruction or concealment of evidence/the escape of a suspect, and if there was insufficient time to get a search warrant.
The federal 'knock and announce' statute, 18 U.S.C. S 3109. Section 3109 requires 'police officers [to] knock, announce and be refused entry before they break into a residence. Exigent circumstances excuse noncompliance.' United States v. Turner, 926 F.2d 883, 886 (9th Cir.), cert. denied, 502 U.S. 830 (1991). Specifically, the court found that immediate entry was necessary 'for [the officers'] protection and the protection of others inside as well as to prevent the destruction of any drugs in defendant's possession or in the home.'
A simultaneous, no-refusal entry is permissible if at least 'mild exigent circumstances' were present. See United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc) (mild exigency is sufficient to justify simultaneous knock/announce and entry if entry does not require physical destruction of property), cert. denied, 469 U.S. 824 (1984); United States v. Whitney, 633 F.2d 902, 909 (9th Cir.'80) ('only a mild indication of exigency is required to excuse noncompliance with the `refusal of admittance' requirement of section 3109'), cert. denied, 450 U.S. 1004 (1981).
When police have a reasonable and sincere fear that someone is in jeopardy and contraband might be destroyed, this usually constitutes sufficient exigency to justify a simultaneous, no-refusal entry. See McConney, 728 F.2d at 1206; Whitney, 633 F.2d at 909-10.
Exigencies created by the government cannot be the basis for excusing compliance with the warrant requirement. See, e.g., United States v. Hackett, 638 F.2d 1179, 1183-85 (9th Cir.'80), cert. denied, 450 U.S. 1001 (1981); United States v. Curran, 498 F.2d 30, 34 (9th Cir.'74). The rule has been applied only in cases where exigencies arose 'because of unreasonable and deliberate [conduct] by officers,' in which the officers ' consciously established the condition which the government now points to as an exigent circumstance.' See, e.g., Curran, 498 F.2d at 34 (emphasis added); Hackett, 638 F.2d at 1183; United States v. Calhoun, 542 F.2d 1094, 1102-03 (9th Cir.'76), cert. denied, 429 U.S. 1064 (1977). an honest miscommunication is not a case where the government purposely tried to circumvent the requirements of section 3109. Cf. Hackett, 638 F.2d at 1184-85; Curran, 498 F.2d at 33-34.
The court made the right choice here and all they really did was agree with legal president. And I take offense to the fact that you would imply that this will be used to violate your 4th amendment rights. If your not breaking the law and your an honest law abiding citizen this will never effect you.
Here is another example: An officer goes to a house and can smell the overwhelming odor of chemicals that are associated with the manufacturing of Meth. The law says that because these chemicals pose such a dangerous situation to the people in the house and their neighbors for explosion, fire, chemical exposure and death that Officers should make immediate entry to contain and get the area cleaned up and make any arrests that need made....So you would rather have officers go to situations like that and just leave it...what if that house was next to yours....if it blows up and burns down...so does yours and perhaps someone you care about gets hurt or worse...
Shesh....Im done and I'm getting off my soap box now.
Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.' United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984).
Exigent circumstances may excuse failure to make an announcement or to wait for the occupant to refuse entry. United States v. Mendonsa, 989 F. 2d 366, 370 (9th Cir. 1993). The existence of exigent circumstances is a mixed question of fact and law reviewed de novo. Id.
A search is reasonable, and a search warrant is not required, if all of the circumstances known to the officer at the time, would cause a reasonable person to believe that entry or search was necessary to prevent physical harm to the officer or other persons/the destruction or concealment of evidence/the escape of a suspect, and if there was insufficient time to get a search warrant.
The federal 'knock and announce' statute, 18 U.S.C. S 3109. Section 3109 requires 'police officers [to] knock, announce and be refused entry before they break into a residence. Exigent circumstances excuse noncompliance.' United States v. Turner, 926 F.2d 883, 886 (9th Cir.), cert. denied, 502 U.S. 830 (1991). Specifically, the court found that immediate entry was necessary 'for [the officers'] protection and the protection of others inside as well as to prevent the destruction of any drugs in defendant's possession or in the home.'
A simultaneous, no-refusal entry is permissible if at least 'mild exigent circumstances' were present. See United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc) (mild exigency is sufficient to justify simultaneous knock/announce and entry if entry does not require physical destruction of property), cert. denied, 469 U.S. 824 (1984); United States v. Whitney, 633 F.2d 902, 909 (9th Cir.'80) ('only a mild indication of exigency is required to excuse noncompliance with the `refusal of admittance' requirement of section 3109'), cert. denied, 450 U.S. 1004 (1981).
When police have a reasonable and sincere fear that someone is in jeopardy and contraband might be destroyed, this usually constitutes sufficient exigency to justify a simultaneous, no-refusal entry. See McConney, 728 F.2d at 1206; Whitney, 633 F.2d at 909-10.
Exigencies created by the government cannot be the basis for excusing compliance with the warrant requirement. See, e.g., United States v. Hackett, 638 F.2d 1179, 1183-85 (9th Cir.'80), cert. denied, 450 U.S. 1001 (1981); United States v. Curran, 498 F.2d 30, 34 (9th Cir.'74). The rule has been applied only in cases where exigencies arose 'because of unreasonable and deliberate [conduct] by officers,' in which the officers ' consciously established the condition which the government now points to as an exigent circumstance.' See, e.g., Curran, 498 F.2d at 34 (emphasis added); Hackett, 638 F.2d at 1183; United States v. Calhoun, 542 F.2d 1094, 1102-03 (9th Cir.'76), cert. denied, 429 U.S. 1064 (1977). an honest miscommunication is not a case where the government purposely tried to circumvent the requirements of section 3109. Cf. Hackett, 638 F.2d at 1184-85; Curran, 498 F.2d at 33-34.
The court made the right choice here and all they really did was agree with legal president. And I take offense to the fact that you would imply that this will be used to violate your 4th amendment rights. If your not breaking the law and your an honest law abiding citizen this will never effect you.
Here is another example: An officer goes to a house and can smell the overwhelming odor of chemicals that are associated with the manufacturing of Meth. The law says that because these chemicals pose such a dangerous situation to the people in the house and their neighbors for explosion, fire, chemical exposure and death that Officers should make immediate entry to contain and get the area cleaned up and make any arrests that need made....So you would rather have officers go to situations like that and just leave it...what if that house was next to yours....if it blows up and burns down...so does yours and perhaps someone you care about gets hurt or worse...
Shesh....Im done and I'm getting off my soap box now.
You're absolutely right. The cops smelled marijuana and busted down the door. A number-one jusifiable emergency if you ask me.
Did gov just give itself power to enter any residence upon toilet flushing? Is this correct?
- Status
