Court Opens Door To Searches Without Warrants

[dave () farber net]

...... Forwarded Message .......
From: "Alex R. Cohen" <arc () arclights net>
To: dave () farber net
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 () arclights net 
www.arclights.net * * * * * * * * * * * * * LIBERTY

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