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View Full Version : 9th Circuit ignores 4th Amendment


Mooseeyes
04-14-2011, 12:24 AM
123

Zak
04-14-2011, 12:39 AM
This paragraph from a dissenting judge pretty much sums it up:

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 “in plain view” – stuck between two cushions of the living room couch – and we reward them by upholding the search.

At least we still have some reliable judges left. What's the status of this case?

snobord99
04-14-2011, 12:57 AM
Let me guess, you didn't read the original opinion, only this dissent.

If you want something to be outraged about, try this one: Connick v. Thompson (http://www.supremecourt.gov/opinions/10pdf/09-571.pdf)

snobord99
04-14-2011, 12:57 AM
Oops

Mesa Tactical
04-14-2011, 5:52 AM
The 4th was pretty much thrown under the bus with the Telecoms Act of 2008.

GrizzlyGuy
04-14-2011, 5:58 AM
I love reading Kozinski's stuff, he writes like a real person. Classic Kozinski:

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.

He also has a good appreciation of how the real world works and isn't afraid to say so:

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.

And of course, he is right. The police were still outside Lemus's apartment when they arrested him. They had no authority to enter his apartment after the arrest, search around, and find his gun that was tucked between his sofa cushions and (supposedly) in plain view.

The takeaway for me is this: if the police come to arrest me and I'm in my house, I'm going to go outside, close and lock the door, and let them arrest me there. That eliminates their ability to do a warrantless search of any part of my home, absent some unusual exigency or other 4A exception. By locking the door vs. just closing it, it makes it harder for the police to later claim that I was still inside or (as in this case) half in and half out.

PatriotnMore
04-14-2011, 6:08 AM
If this liberal court can totally ignore the 4th Amendment, can the 2nd Amendment be next?

http://www.lewrockwell.com/rounds/rounds36.1.html

When this court rules against every other Federal Circuit Court in the country, causing an unreasonable and costly trip to the U.S. Supreme Court, maybe it is time to remove some judges?

This insanity has to stop. What say you?


I could not agree more.

glockman19
04-14-2011, 6:56 AM
I could not agree more.

I agree too...

Judges who do NOT follow the law, then criminalize the same citizenry they are supposed to serve.

The 9th circut is a joke and another reason to leave this state and the states they reside over.

The Shadow
04-14-2011, 7:06 AM
Wow, that was interesting. Chief Justice Kozinski call the police dishonest and liars. I wonder what would prompt him to say that ?

:hide:

CalBear
04-14-2011, 7:11 AM
It seems like there has been a race to see which parts of the bill of rights we can extinguish first.

2A was under strong attack for a long time and still is, but 4A has been truly slaughtered like none other as of late, because of irrational fear following 9/11. 1A is still fairly strong, but that's come under fire when relating to Islam, and other touchy subjects. I think 8A has gone by the wayside because of the bails and fines required these days. 10A is definitely just a piece of toilet paper for the federal government. State's rights? What are those? It's really sad.

JasonM
04-14-2011, 7:17 AM
Utah is looking better and better.

cdtx2001
04-14-2011, 7:21 AM
I agree too...

Judges who do NOT follow the law, then criminalize the same citizenry they are supposed to serve.

The 9th circut is a joke and another reason to leave this state and the states they reside over.

And the problem there is that they set a precedence that must be fought to the bitter end. Until then, their bad law is the law and innocent people get screwed. The other problem is that the bitter end is the SCOTUS and some of the judges there are not the best either.

Our judicial system is flawed and has been tainted by years of bad judges and laws. How any judge can in good conscience overlook the bill of rights and ignore it is disgusting, disheartening, depressing, and beyond my comprehension.

A lot of judges need to be removed from the bench.

Glock_Toter
04-14-2011, 7:28 AM
The only way to make them or anyone who steps into that position and respect what they do and not have a "I am the law" attitude is to hold them accountable for what they do. Treason sounds like a good charge to me but I am no lawyer.

PatriotnMore
04-14-2011, 7:31 AM
The only way to make them or anyone who steps into that position and respect what they do and not have a "I am the law" attitude is to hold them accountable for what they do. Treason sounds like a good charge to me but I am no lawyer.

Yes, but how do we hold them accountable when the system does not seem to have a way, nor cares to hold them accountable?

Ripon83
04-14-2011, 7:36 AM
Citys, in the name of safety, are passing bans on signs at political rallies...

LHC30
04-14-2011, 7:43 AM
Anyone have the original opinion/case facts?

Glock_Toter
04-14-2011, 7:47 AM
Yes I know. The system is flawed and the only way to repair it right now is to fight a political/judicial war to try to bring the law in line with a document our country was founded on (disgust me, that it isn't). I have a ton of respect for the ones fighting the battles in the courts and I hope it does work out in the end.

Nick Justice
04-14-2011, 9:35 AM
Anyone have the original opinion/case facts?

Yes I did. The justices admit the search was warrantless, and devoid of reasonable suspicion, but say "nevertheless..." and uphold the admissability of the gun anyway.

It's like they just didn't want to be bothered by all our constitutional rights.

BigDogatPlay
04-14-2011, 10:06 AM
Public link to the order. (http://www.ca9.uscourts.gov/datastore/opinions/2010/02/18/08-50403.pdf). Case is US v. Lemus 08-50403 and Judge Kozinski's artful dissent (is he perhaps related to Gura somehow :D ) is objecting to the denial of en banc.

The original appelate decision with facts of the case I located at FindLaw (http://caselaw.findlaw.com/us-9th-circuit/1425121.html).

The defendant is a felon, apparently gang related. The officers held a warrant for his arrest and were serving him with it at his house. While arresting him they say they observed what they thought was a gun. They had personal knowledge of his felony status confirmed visually that it was a gun and had obtained a search warrant to seize it. He was charged federally for felon in possession no doubt because of gang ties and past record.

PatriotnMore
04-14-2011, 10:19 AM
"And then there is Judge Reinhardt:
REINHARDT, Circuit Judge, dissenting from the denial of rehearing en banc:
I concur in Chief Judge Kozinski’s dissent.
I have served on this court for nearly three decades. I regret that over that time the courts have gradually but deliberately reduced the protections of the Fourth Amendment to the point at which it scarcely resembles the robust guarantor of our constitutional rights we knew when I joined the bench....
These decisions have curtailed the “right of the people to be secure…against unreasonable searches and seizures” not only in our homes and surrounding curtilage, but also in our vehicles, computers, telephones, and bodies-----all the way down to our bodily fluids and DNA.
Today’s decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come.
I dissent."

http://frozenjustice.blogspot.com/2010/08/chief-judge-kozinski-dissenting-hero-of.html

hvengel
04-14-2011, 11:05 AM
"And then there is Judge Reinhardt:
REINHARDT, Circuit Judge, dissenting from the denial of rehearing en banc:
I concur in Chief Judge Kozinski’s dissent. ..."

Reinhardt is a hard core anti. Sometime these things have strange bed fellows as Kozinski is more or less a libertarian which is basically the opposite of Reinhardt who is a hard core liberal/socialist.

mtptwo
04-14-2011, 11:48 AM
Because the area in which the police officers discovered the incriminating evidence “immediately adjoin[ed] the place of arrest,” the officers were justified in conducting a search of that area without either probable cause or reasonable suspicion, Maryland v. Buie, 4....

Isn't this ruling prety much affirming standard precedent? If you are arrested during a traffic stop, the police have the right search your vehicle. How is this different?

Of course though, throw in the fact that it is the 9th and it automatically equates to liberal boogie men.

Pixs
04-14-2011, 11:57 AM
Actually, I did read the Court's original opinion. Notwithstanding, I still agree with the dissent. The original opinion can be found at:

http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdjd&searchTerm=eYjh.cSia.UYGY.EcHH&searchFlag=y&l1loc=FCLOW

And, yes I am aware of the Connick v. Thompson case. Outrage does not even come close.

+1 apparently he was not surrendering but trying to enter his apt. Edit: and yes, I agree with the descent too.

sfpcservice
04-14-2011, 12:07 PM
Welcome to the party. The 4th amendment has been dead for a while in so-called free America.

TSA naked body scans and rapedowns
"Border" checkpoints 50 miles from international borders
DUI checkpoints

America has become a cesspool of tyranny.

The Supreme Court has ruled on "Checkpoints". They are only allowed to search or question you if you consent. Of course, at a DUI checkpoint you will probably give yourself away resulting in PC.

Check this guy out:

http://www.youtube.com/watch?v=5OydW39DZzc&feature=related

PatriotnMore
04-14-2011, 12:11 PM
Reinhardt is a hard core anti. Sometime these things have strange bed fellows as Kozinski is more or less a libertarian which is basically the opposite of Reinhardt who is a hard core liberal/socialist.

I am aware, the obvious to read is how on one amendment he can be so right, yet with others completely miss the mark. How is that for hypocrisy?

He is as much a part of the problem of what's wrong Judicially, as the others.

JasonM
04-14-2011, 12:36 PM
The defendant is a felon, apparently gang related. The officers held a warrant for his arrest and were serving him with it at his house. While arresting him they say they observed what they thought was a gun. They had personal knowledge of his felony status confirmed visually that it was a gun and had obtained a search warrant to seize it. He was charged federally for felon in possession no doubt because of gang ties and past record.

The way I read it, they apprehended him outside his home as he was further retreating toward his door and he had opened the door but not fully entered. The officers then entered his home and searched it, likely under the guise of exigent circumstances where they claim they saw in plain sight what they thought may be the butt of a pistol between sofa cushions. At which point they removed the sofa cushions, confirmed it was a weapon and went for a warrant before removing it as evidence.

Was this guy a choir boy? Absolutely not, but the resident being a felon doesn't become part of the standard now that this is case law. The police apprehended the guy outside his home and took the opportunity to head inside and look around.

scarville
04-14-2011, 12:59 PM
Anyone have the original opinion/case facts?

http://caselaw.findlaw.com/us-9th-circuit/1425121.html

dantodd
04-14-2011, 1:04 PM
Isn't this ruling prety much affirming standard precedent? If you are arrested during a traffic stop, the police have the right search your vehicle. How is this different?

Of course though, throw in the fact that it is the 9th and it automatically equates to liberal boogie men.

Nope. The reason for a vehicle search incident to arrest (barring a search warrant or permission) is as an "inventory" of the contents to prevent accusations of theft by towing employees or police. Nevermind that they could just use a flatbed and evidence tape to secure the vehicle. Nevermind, also, that if the officer were corrupt s/he would just not inventory whatever property s/he wanted to steal later. All in the name of keeping bad guys away from our children.

snobord99
04-14-2011, 3:47 PM
Nope. The reason for a vehicle search incident to arrest (barring a search warrant or permission) is as an "inventory" of the contents to prevent accusations of theft by towing employees or police. Nevermind that they could just use a flatbed and evidence tape to secure the vehicle. Nevermind, also, that if the officer were corrupt s/he would just not inventory whatever property s/he wanted to steal later. All in the name of keeping bad guys away from our children.

That's the funny thing I never got about the inventory search. One justification for it is "we want to inventory everything so the defendant can't come back later and claim that stuff is missing." Well...how does an inventory search that takes place outside the defendant's presence prevent them from still claiming stuff is missing???

snobord99
04-14-2011, 3:53 PM
And, yes I am aware of the Connick v. Thompson case. Outrage does not even come close.

I find it so ironic that the same 5 justices we praise so much for Heller and McDonald are the same 5 that we condemn for Connick and the 4 justices (or their replacements) we condemn for Heller and McDonald are the same 4 we'd praise for Connick.

BigDogatPlay
04-14-2011, 4:04 PM
The way I read it, they apprehended him outside his home as he was further retreating toward his door and he had opened the door but not fully entered. The officers then entered his home and searched it, likely under the guise of exigent circumstances where they claim they saw in plain sight what they thought may be the butt of a pistol between sofa cushions. At which point they removed the sofa cushions, confirmed it was a weapon and went for a warrant before removing it as evidence.

I don't disagree with your analysis... I think it was a bit of a bootstrap to get to where they got, but they articulated it sufficiently enough for the trial court and the appeals court. I read it that the suspect was retreating into his house, they had an arrest warrant meaning they can enter to take him if they have to. Apprehension and in custody aren't necessarily the same thing, IMO.

They finished taking him into custody within the house is how I read it. In the doorway, with the door open is in the house and at minimum they get to look see that room he was within, IMO. Once inside, anything they can reasonably see and recognize as a prohibited or evidence item they can seize. I actually find that they went and got a search warrant specifically for the gun something of an overkill, but I suppose they wanted to toss his entire house at a deeper level for which they would absolutely need a warrant. The gun's presence, with him being a known felon was a very easy lever into that search warrant, IMO, and why not sanctify the seizure of the gun with a warrant if given the opportunity?

Again... I don't disagree with your analysis or conclusion. You could be just as right as I could be. We are just guessing. But, like you I think, I always cringe a bit when any article in the BoR is skated hard against, and I think Judge Kozinski and Judge Reinhardt do as well (although from different perspectives). But from a LEO perspective it reads like relatively good police work.

Theseus
04-14-2011, 4:33 PM
I am torn on this case. I think the important question to me is if the person was retreating into the home as it was suggested.

I mean, we aren't talking about being arrested in the front lawn where the guy was cooperative, we are talking about a situation where he was seemingly retreating into the home and, from what it seems, at least partially breached the threshold.

I suspect that if he had been arrested outside and had not attempted retreat into the home, he would have been perfectly fine.

Plain view doctrine has three prongs that require:



the officer to be lawfully present at the place where the evidence can be plainly viewed,
the officer to have a lawful right of access to the object, and
the incriminating character of the object to be “immediately apparent.”

I dont' remember them all right now, butsnoboard99 will probably be able to help me here, but the plain view doctrine used to have 4 requirements, and now only 3. In Horton v. California (http://en.wikipedia.org/wiki/Horton_v._California) 496 U.S. 128 (http://en.wikipedia.org/wiki/Court_citation) (1990), the court eliminated the requirement that the discovery of evidence in plain view be inadvertent.

Now, the part that I think is suspect is the use of this doctrine above. They had to move the cushions to be sure it was a pistol. Prior to that it could have been a toy gun, or a lighter. The fact that they admitted to having to do a closer inspection by moving the cushions to me cries similar to moving a stereo to record serial numbers as prohibited by Arizona v. Hicks

IrishPirate
04-14-2011, 4:40 PM
the most overturned COA in the country made what we all know is a bad decision and you guys are surprised?? They might as well eliminate the 9th and just send cases straight to SCOTUS....most of them end up there anyways.


I dissent

snobord99
04-14-2011, 10:31 PM
I am torn on this case. I think the important question to me is if the person was retreating into the home as it was suggested.

I mean, we aren't talking about being arrested in the front lawn where the guy was cooperative, we are talking about a situation where he was seemingly retreating into the home and, from what it seems, at least partially breached the threshold.

I suspect that if he had been arrested outside and had not attempted retreat into the home, he would have been perfectly fine.

Plain view doctrine has three prongs that require:



the officer to be lawfully present at the place where the evidence can be plainly viewed,
the officer to have a lawful right of access to the object, and
the incriminating character of the object to be “immediately apparent.”

I dont' remember them all right now, butsnoboard99 will probably be able to help me here, but the plain view doctrine used to have 4 requirements, and now only 3. In Horton v. California (http://en.wikipedia.org/wiki/Horton_v._California) 496 U.S. 128 (http://en.wikipedia.org/wiki/Court_citation) (1990), the court eliminated the requirement that the discovery of evidence in plain view be inadvertent.

Now, the part that I think is suspect is the use of this doctrine above. They had to move the cushions to be sure it was a pistol. Prior to that it could have been a toy gun, or a lighter. The fact that they admitted to having to do a closer inspection by moving the cushions to me cries similar to moving a stereo to record serial numbers as prohibited by Arizona v. Hicks

Nope, you got them all.

Ultimately, I think there are two issues here and both have been pointed out. First, should they have been allowed to enter in the first place? Second, was the firearm really in plain view?

IMO on the record, this is a close call. It could have gone both ways. They barely had enough to go in but it could easily have gone the other way too. In that same light, it could also come down either way as to whether what they saw was readily apparent as a firearm. On the one hand, it seems they were able to recognize it as a firearm, on the other hand they had to raise the sofa cushion to "make sure" that it was.

I personally don't think it's outrageous the search was upheld and had the court said the search was no good, I wouldn't say they were wrong either. It's just a close call. In light of his criminal record and associations and that he was retreating back into the house and had gotten partly in, it really could have come down either way.

Dreaded Claymore
04-14-2011, 10:48 PM
When this court rules against every other Federal Circuit Court in the country, causing an unreasonable and costly trip to the U.S. Supreme Court, maybe it is time to remove some judges?

How do you even do that? I mean, does a procedure exist for removing a judge from office, and who has the power to initiate it? Has a federal judge ever been removed from office before?

Al Norris
04-15-2011, 5:40 AM
When Judge Kozinski wrote his dissent on the en banc vote, he was writing directly to the Supreme Court. SCOTUS denied cert on Oct. 4, 2010. So the case stands as is.

It is interesting to note what Kozinski did say about the case, however.

Lemus was in his side yard when Detectives Longoria and Diaz called out that they were there to arrest him. Two patrol officers arrived at the scene just as Lemus started to back slowly towards his living room door. After he opened it, “[t]he officers were there in an instant, taking hold of Lemus and handcuffing him before he could fully enter the doorway and retreat into his living room.” United States v. Lemus, 582 F.3d 958, 960 (9th Cir. 2009). Note: They grabbed him and had him handcuffed “before he could fully enter the doorway” and before he could “retreat into his living room.” Instead of walking away with the handcuffed Lemus in tow, the officers entered the apartment and had a good look around. “Checked the bedroom and bathroom too.” Id. The detectives then went into the living room, where Longoria found a gun. Id. at 960-61.

My emphasis.

So the defendant was arrested outside his house. The police searched the entire apartment, not just the room the defendant was attempting to flee into (the so-called immediate area). Then and only then did two detectives go into the room and "find" the gun (that the other officers apparently missed in their "security sweep" of the premises).

There are several other inconsistencies that Kozinski points out.

I agree with him in that the search was unlawful; The police lied about what was seen (and subsequently found); "Plain View," now means whatever the police want it to mean; The 4th amendment is dead in its coffin.

SCOTUS was wrong in not taking the case.

Mulay El Raisuli
04-15-2011, 5:45 AM
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.


No doubt about it, Kozinski is not only THE best judicial mind on the 9th Circuit's bench, he also has THE best way with words.


"And then there is Judge Reinhardt:
REINHARDT, Circuit Judge, dissenting from the denial of rehearing en banc:
I concur in Chief Judge Kozinski’s dissent.
I have served on this court for nearly three decades. I regret that over that time the courts have gradually but deliberately reduced the protections of the Fourth Amendment to the point at which it scarcely resembles the robust guarantor of our constitutional rights we knew when I joined the bench....
These decisions have curtailed the “right of the people to be secure…against unreasonable searches and seizures” not only in our homes and surrounding curtilage, but also in our vehicles, computers, telephones, and bodies-----all the way down to our bodily fluids and DNA.
Today’s decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come.
I dissent."

http://frozenjustice.blogspot.com/2010/08/chief-judge-kozinski-dissenting-hero-of.html


And:


Reinhardt is a hard core anti. Sometime these things have strange bed fellows as Kozinski is more or less a libertarian which is basically the opposite of Reinhardt who is a hard core liberal/socialist.



Now maybe Reinhardt gets the whole "slippery slope" argument?


How do you even do that? I mean, does a procedure exist for removing a judge from office, and who has the power to initiate it? Has a federal judge ever been removed from office before?


Its called "impeachment" & has been used to remove a few judges from the bench. The problem is that it takes BIG evidence of malfeasance to do. Things like being convicted of a felony or similar. Removing one just because he ignores the Constitution? Not gonna happen.


The Raisuli