Looks llike the 5th Circuit is as wacky as the 9th...

[geekWithA.45]

Q: What federal gun charges?

A: Gould's criminal history.

If you jump over the the ATF most wanted pages, the few wanted guys who aren't "felons in posession" are "drug dealers in possession"

 

[dustind]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The last part makes me wonder how these fishing expiditions can be legal.

...he has no ability to look for the husband...

I have nothing against "protective sweeps", but fishing for evidence is another matter.

but unless your growing pot plants or have grenades laying around on the coffee table what's the fear?

The fourth amendment was not put there to protect criminals.

 

[The Real Hawkeye]

The Fourth Amendment does not prevent searches and seizures. It prohibits UNREASONABLE searches and seizures.

Yes, and "unreasonable search and seizure" is defined quite clearly in the Fourth Amendment. It is that which occurs without first securing a warrent, none of which shall issue except on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, or the persons or things to be seized. If your understanding of the Fourth Amendment were correct, they would simply not have added the part about warrents. Under your interpretation, warrents are unnecessary, so why would they put the requirements for them in the Constitution? You are not making sense.

 

[standingbear]

your papers please!

but unless your growing pot plants or have grenades laying around on the coffee table what's the fear?

its not about fear of them finding something illegal..its about intimidation....sorta like an unannounced visit from an unfavorable relative or something...only these visiters will have guns.I suppose there is nothing wrong with a stranger coming into your home and rifling through your wifes dresser or your clothes closet...I suppose that there is nothing wrong wit the fact that if you dont co-operate,youll be cuffed and booked into the jail or if you have an unsecured firearm hidden behind the door and the locality has decided that all firearms are to be secured in a lockable safe..home protection be damned.the nazi ss did this to its own people during ww2 out of mistrust and intimidation and I amost would compare these tactics to theirs.this has great potential for abuse.

 

[TamThompson]

Y'all, let's get constructive here: what can we do about this?

I want to write some letters, make some calls, to protest this. To whom would I write letters? The 5th Circuit Court, the Supreme Court...who?

I'm with 762FMJ and Chris. This is further paving in the road to tyranny, and we MUST fight this, peacefully if at all possible.

 

[w4rma]

King, Carolyn Dineen: Nominated by Jimmy Carter on April 30, 1979
Garza, Reynaldo Guerra: Nominated by Jimmy Carter on April 30, 1979
Reavley, Thomas Morrow: Nominated by Jimmy Carter on May 17, 1979
Garwood, William Lockhart: Nominated by Ronald Reagan on September 17, 1981
Jolly, E. Grady: Nominated by Ronald Reagan on July 1, 1982
Higginbotham, Patrick Errol: Nominated by Ronald Reagan on July 1, 1982
Davis, W. Eugene: Nominated by Ronald Reagan on November 1, 1983
Jones, Edith Hollan: Nominated by Ronald Reagan on February 27, 1985
Smith, Jerry Edwin: Nominated by Ronald Reagan on June 2, 1987
Duhe, John Malcolm Jr.: Nominated by Ronald Reagan on June 27, 1988
Wiener, Jacques Loeb Jr.: Nominated by George H.W. Bush on November 17, 1989
Barksdale, Rhesa Hawkins: Nominated by George H.W. Bush on November 17, 1989
Garza, Emilio M.: Nominated by George H.W. Bush on April 11, 1991
DeMoss, Harold R. Jr.: Nominated by George H.W. Bush on June 27, 1991
Benavides, Fortunato Pedro: Nominated by William J. Clinton on January 27, 1994
Stewart, Carl E.: Nominated by William J. Clinton on January 27, 1994
Dennis, James L.: Nominated by William J. Clinton on January 31, 1995
Clement, Edith Brown: Nominated by George W. Bush on September 4, 2001
Prado, Edward Charles: Nominated by George W. Bush on February 6, 2003
Pickering, Charles: Appointed by George W. Bush on January 16, 2004
http://www.lb5.uscourts.gov/judgebio/judgebio.htm
http://www.thedmonline.com/vnews/display.v/ART/2004/01/21/400e4c09b3a7c

 

[jimpeel]

FedDC

That goes both ways.

Here's reality: I can document everything I posted; and more.

 

[WYO]

An unfortunate oversight in the constitution, IMO. The 4th Amendment should be treated as if the word "unreasonable" did not appear in it.

The Bill of Rights is a beautiful, succinct piece of scholarship that has application to situations and technology that the Founding Fathers could not have dreamt about when they wrote it. For all of the interpretations of which the Bill of Rights may be susceptible, this is not even close to being an issue. The 4th Amendment clearly intended that warrantless searches and seizures are permissible under certain circumstances. That proposition is not even susceptible of debate.

Turning to the Founding Fathers, if George Washington had walked out of the front door of Mount Vernon and saw someone stealing his horse, do you think he would have believed that he was required to obtain an arrest warrant to take the miscreant into his custody, or to search his pockets once he did so? I don’t think so. The Real Hawkeye is engaged in INTERPRETING the Constitution in suggesting that warrants are required for any search or seizure. The document DOES NOT SAY THAT. The entire first sentence of the 4th Amendment is entirely unnecessary if warrants are required for any search or seizure. The people who wrote the Bill of Rights were smart enough to state that a warrant was an absolute requirement if they had intended that. The absolute standard is the reasonableness requirement. Warrants are required in many cases, but that was left to the courts. If the Founding Fathers had attempted to micromanage the 4th Amendment using 18th century knowledge, it would have lost its value long ago. Instead, they used timeless wisdom that is applicable to technology they could not have contemplated when they wrote it. And while we’re on the topic of judicial interpretation, please note that the exclusionary rule isn’t mentioned in the 4th Amendment either, but I don’t see anyone, not even the police, harping on that judicially created doctrine.

As far as fishing expeditions go, the protective sweep is not the type of search that is susceptible to much abuse or “envelope pushing.†It is one of those spur of the moment decisions that has to be justified and always is always susceptible of judicial review. Contrast that to other things such as the search incident to lawful arrest or search of the passenger compartment of a vehicle incident to a lawful arrest from the vehicle. If you want to talk pretext, talk about that. An officer can get into someone’s pockets or their car if they decide to make a custodial arrest for the broken headlight violation in lieu of issuing a citation. The protective sweep requires a lawful presence in the place being swept plus a particularized reason to do it in order to establish reasonableness.

Marlon Defillo is a good PIO, but he isn’t up on the law.

Finally, a lot of posters have a very incorrect understanding of the plain view doctrine. Contraband or evidence has to be readily apparent without manipulation. The plain view doctrine doesn’t expand to putting a VCR tape into a machine. It doesn’t expand to manipulating a firearm to look at the serial number, either. A protective sweep has to be cursory. It is designed to look for people, not evidence. A true JBT wouldn’t have been worried one way or the other about the outcome of this case.

In any event, if someone has a problem with federal court interpretations of the 4th Amendment, they are welcome to find a state that affords more protections to its citizens than the minimum standards embodied in the 4th Amendment.

 

[patentnonsense]

1) The case being talked about is USA v. Gould, and you can read it at http://www.ca5.uscourts.gov/opinions/pub/02/02-30629-CV0.wpd.pdf.

2) As some other lawyers here have pointed out, the law announced here does not seem particularly startling.
The Supreme Court has said that a "protective sweep" (limited to checking spaces large enough to be hiding a person who might attack) is OK when the police are making an arrest;
the majority opinion says that the question here is merely whether a protective sweep may EVER be permissible when the police are properly in a home for other reasons.

3) The second dissent makes a strong argument that this case law invites the police to abuse it. The judge who wrote this opinion makes some very good points about "what really happened," and those points are arguments for a reconsideration of 4th Amendment case law; but the majority doesn't think they are making any great change to existing case law, and I think they are correct in that.

4) The fact that the 5th Circuit considered this case "en banc" (i.e. with all available judges) shows that they are considering these issues carefully. The hot dissent also shows that we have judges who are trying hard to make the right decision. This is a good thing.

5) As some cops and ex-cops here have pointed out, the "protective sweep" doctrine does address a real problem IF you're in the circumstance where cops are legally in someone's home.

6) For those who feel cautious, the practical moral is simple: Never, ever invite any LEO into your home at any time for any reason (except maybe close personal friends who are OFF duty). Be as polite as you feel like being, bring milk and cookies and chairs out onto your front porch if you want - but when you open your door to the government, you're opening it wider than you think. Tell your children, tell your friends.

Hope this helps. If you want something to be alarmed about, read about the California case where the cops got a drug search warrant based on high electricity usage. I think the real anomaly here may have been that the cops who served the warrant were commendably honest, or maybe they forgot to bring along a throw-down. From the facts stated in the news report, whoever signed the search warrant could not possibly have been shown any "probable cause." That sort of abuse happens all the time, and there is usually no way to correct it.

--------------

 

[The Real Hawkeye]

The Real Hawkeye is engaged in INTERPRETING the Constitution in suggesting that warrants are required for any search or seizure.

WYO is all wet here. Some searches are reasonable. It is those searches that require a warrent. The unreasonable searches are to be denied a warrent entirely, i.e., a search may not legally then ensue at all, under any circumstances. A "search," in the law (this is a legal term of art), refers to the situation in which there is a "quest for, a looking for, or a seeking out of that which offends against the law by law enforcement personnel or their agents." It does not apply to "George Washington," or any other individual who is not a LEO. An unreasonable search and seizure is defined as one where there is not probable cause for a warrent to issue, and therefore one is not issued. In all cases, the Fourth Amendment requires a warrent before any law enforcement personnel may conduct any form of a search, period. Where do you people come from? The conditions for obtaining a warrent are spelled out clearly.

 

[Chris Rhines]

WYO, it was me who said that the 4th Amendment should be treated as if the word "unreasonable" did not appear in it. I still stand by this statement.

The Bill of Rights is a beautiful, succinct piece of scholarship that has application to situations and technology that the Founding Fathers could not have dreamt about when they wrote it.

And so? That's no reason why the BoR should be applicable today (if the BoR was ever applicable to anyone who did no sign it, which it was not.)

You cannot justify an immoral action to me by saying that the Constitution allows it. I don't care.

As far as fishing expeditions go, the protective sweep is not the type of search that is susceptible to much abuse or “envelope pushing.â€

Then for the third time - if the protective sweep is not particularly susceptible to abuse, then no LEO should have any problem with making inadmissible any evidence of a secondary crime seized during a protective sweep.

- Chris

 

[Ryder]

I've had cops at my front door ask to come in and speak with me in the past. I am ok with that. I am friendly and have nothing to hide. It does get pretty cold out there!

BUT

Since they won't need a warrant I expect they will quit asking and begin demanding? They're going to run into a brick wall. Forget about it.

 

[The Real Hawkeye]

Chris, it is not a problem that the word "unreasonable" is in there. It is clearly defined in the amendment as a search and seizure where no warrent is issued. Let's take a look at the amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants ...

What kind of warrents are they talking about?

... shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched ...

Oh, search warrents

, and the persons or things to be seized.

Oh, and also warrents for seizing people or things. Well, that explains it then. Searches and seizures must be reasonable. What is reasonable? The amendment provides that information too. A reasonable search or seisure is one where there is a warrent, which requires (among other things) an oath or affirmation that there exists probable cause that a crime was committed. In case you don't know what probable cause means, it just means that it is more likely than not, based on the evidence, and it is up to a judge (not the LEO) to make that determination based on the oath or affirmation.

 

[Cosmoline]

BAD BAD BAD BAD BAD. Sometimes dissents are out of line, but this is indeed the road to Hell. Under these vague parameters, LEO's can SEARCH YOUR HOUSE IF THEY ARE THEIR TO INTERVIEW YOU!!!! This is similar to the powers granted cops in Japan and elsewhere to freely enter and inspect houses and places of business when coming to do periodic "checkups."

With this ruling, a cop can search your house with no warrant on suspicion that you might have a firearm. Feeling warm yet? Smell sulphur yet? I sure do.

Thankfully, there are limiting factors. This is a FEDERAL court decision interpreting the FEDERAL Constitution. It does not apply to state LEO's operating under state law where those states have more restrictive warrant requirements in their constitutions. It applies primarily to federal LEO's operating under federal law.

 

[kbr80]

It applies primarily to federal LEO's operating under federal law.

Just wait. It will filter down to state level JBT's.

 

[Stickman]

As far as "improperly seized evidence" goes, if it was in plain view, it is not improperly seized and would not be subject to suppression. If I'm not mistaken, this wasn't even an issue in the case in point.


jimpeel:
You forget that every law will always be taken to its furthest and wildest extreme.

That's a hasty generalization, and your references do not prove your case; rather, they demonstrate the fact that your entire post is a classic example of the slippery slope fallacy. My grip on reality is not the one that needs to be questioned, as I have been around long enough to look at two sides of an issue before forming an opinion, rather than going into hysterics. I don't suppose I'll change any minds, you mistakenly view the police as the enemy, so I'll end my involvement in this thread with this post.

 

[FedDC]

"BAD BAD BAD BAD BAD. Sometimes dissents are out of line, but this is indeed the road to Hell. Under these vague parameters, LEO's can SEARCH YOUR HOUSE IF THEY ARE THEIR TO INTERVIEW YOU!!!! This is similar to the powers granted cops in Japan and elsewhere to freely enter and inspect houses and places of business when coming to do periodic "checkups."

With this ruling, a cop can search your house with no warrant on suspicion that you might have a firearm. Feeling warm yet? Smell sulphur yet? I sure do.

Thankfully, there are limiting factors. This is a FEDERAL court decision interpreting the FEDERAL Constitution. It does not apply to state LEO's operating under state law where those states have more restrictive warrant requirements in their constitutions. It applies primarily to federal LEO's operating under federal law.


__________________
"Oh, I thought you said you were a ninja!" Donald Rumsfeld"


Begin rational thought:


No, they can not search under the conditions you describe. Please learn what a protective sweep is and when it can be used before you condem it. It is not a search and you have described it with the same accuracy that Diane Finestein describes firearms.

 

[jimpeel]

Stickman

It is too bad that you will not be around to see this reply. Eight posts to your credit and you are fleeing before the tide already? The fact that you have chosen to leave is proof that you have no rebuttal to my contentions other than empty accusations that I think the police are "the enemy". You have presented nothing that rebuts my contentions or my examples of the abuse of laws beyond their intended use.

Removing oneself from the sphere of influence does nothing to further the debate.

I do not view the police as "the enemy". I view those who take the law to extremes it was never intended to go the enemy.

You state that my references do not prove my case. I disagree.

In the case of seizure and forfeiture, the law was intended, in the words of the author Congressman Dan Lundgren, to "... take the ill-gotten gains of drug dealers. To seize their mansions, their yachts, and their fancy cars."

Donald Scott of Malibu was not a drug dealer, yet he ended up dead because the police wanted to seize the Trail's End Ranch. It was a prime piece of property nestled between the Santa Monica Mountain Preserve and the Coastal Reserve. It was the only obstacle that prevented the two from being joined into one preserve and the authorities had been trying to get the property for years. It also was the site of the only natural waterfall in the Santa Monica Mountains.

When the Ventura County District Attorney issued his report on the death of Donald Scott, he ruled that the primary goal of the police was the seizure of the Trail's End Ranch and that the police had gotten an appraisal of the property to that end.

The R.I.C.O. (Racketeer Influenced Criminal Organization) Act was to be used against mobsters like John Gotti and the Mafia. It was not intended for use against abortion protesters. That's where it went, though.

Child abuse laws were intended to encompass the physical abuse, or harm or injury, to children but soon became a vehicle for taking children for "verbal abuse".

So when I state that the laws will be taken to their furthest and widest interpretation possible, it doesn't have to be the cops doing it of their own volition. It is upon the orders and directives of their superiors that they do these things in most cases. Yes, there are those, like the cops involved in the Knapp, Mollen, and Christopher Commissions who break the law because they are common criminals. That doesn't mean all cops are bad.

You need to do a bit of reading on the subject before you accuse me of police prejudice and then take a powder because you have nothing to present in your defense. Perhaps when you have been following these events for as long as I have you will begin to comprehend.

 

[lapidator]

This is a FEDERAL court decision interpreting the FEDERAL Constitution. It does not apply to state LEO's operating under state law where those states have more restrictive warrant requirements in their constitutions. It applies primarily to federal LEO's operating under federal law.

Oh, well... in that case --- whew! I was getting alittle concerned there. I'mean really... if'n its only going to be for the Federalies -- well then thats just fine with me



Lapidator

 

[lapidator]

So when I state that the laws will be taken to their furthest and widest interpretation possible

Jim is, as usual, entirely correct.

Ever hear of the AMT? Alternative Minimum Tax?

http://www.smartmoney.com/tax/filing/index.cfm?story=amt

Make over $75k and get stock options, or own a home, or have rental property or suffered a capital loss recently? You probably are not paying your fair share!

And if you think its going to go away any time soon... HA!

 

[The Real Hawkeye]

Thankfully, there are limiting factors. This is a FEDERAL court decision interpreting the FEDERAL Constitution. It does not apply to state LEO's operating under state law where those states have more restrictive warrant requirements in their constitutions. It applies primarily to federal LEO's operating under federal law.

You'll excuse me if I don't find that the least bit comforting.

 

[Ironbarr]

WYO...

Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

How do you figure it doesn't apply???????

-Andy

 

[TheEgg]

A little chip here, a little chip there.

[sarcasm on]

After all, why should we worry? The 9th Circuit rules that the 2nd Amendment does not apply to individuals, and then the Supreme Court refuses to hear the appeal. Why should we worry?

Why should we worry? The 5th Circuit says that no search or arrest warrant is needed if the evidence is seized pursuant to a 'protective sweep'. The police in LA. immediately interpret this to mean that they don't need warrants anymore. Why should we worry? After all, the highest good is that the police be safe -- we can't let the constitution get in the way of that goal, now can we? Why should we worry?

Why should we worry? The congress passes the Campaign Finance Reform Act, the President signs it, and the Supremes say it is ok to restrict freedom of political speech if it will "reduce the appearance of impropriety". But, says the Federal Election Commission, if you form a 527 group and get a millionaire like Soros to fund it, you can have all the free speech you want -- we only really have to watch those evil special interest groups like the NRA. After all, the 1st amendment REALLY doesn't apply to EVERYONES free speech after all, now does it? Why should we worry?

[sarcasm off]

A little chip here, a little chip there.

 

[The Real Hawkeye]

A little chip here, a little chip there.

[sarcasm on]

After all, why should we worry? The 9th Circuit rules that the 2nd Amendment does not apply to individuals, and then the Supreme Court refuses to hear the appeal. Why should we worry?

Why should we worry? The 5th Circuit says that no search or arrest warrant is needed if the evidence is seized pursuant to a 'protective sweep'. The police in LA. immediately interpret this to mean that they don't need warrants anymore. Why should we worry? After all, the highest good is that the police be safe -- we can't let the constitution get in the way of that goal, now can we? Why should we worry?

Why should we worry? The congress passes the Campaign Finance Reform Act, the President signs it, and the Supremes say it is ok to restrict freedom of political speech if it will "reduce the appearance of impropriety". But, says the Federal Election Commission, if you form a 527 group and get a millionaire like Soros to fund it, you can have all the free speech you want -- we only really have to watch those evil special interest groups like the NRA. After all, the 1st amendment REALLY doesn't apply to EVERYONES free speech after all, now does it? Why should we worry?

[sarcasm off]

A little chip here, a little chip there.

Egg, well said. Your comments might have gotten you banned from www.1911forum.com. Thankfully, this site is not run by police state apologists.

 

[7.62FullMetalJacket]

I hear about being banned on other forums. I do not know what that is all about.

I guess I am very happy that we are allowed to explore these issues on this forum (extraordinaire). Keep the edge sharp.