Saturday, February 20, 2010

"Welcome to the fishbowl"

So says 9th Circuit Court Chief Judge Alex Kozinski in his dissent "from the 9th Circuit's refusal to reconsider its decision backing the warrantless search of a man's home after officers spotted a gun tucked in couch cushions," according to a Courthouse News Service dispatch.  The CNS adds that,
 The decision not to take up the case irked Kozinski so profoundly that he wrote a nine-page dissent, calling the search "a fishing expedition by four officers" that was approved "based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes."
(Read the full dissent here.)

Judge Kozinski ends his dissent by arguing the Fourth Amendment has been eviscerated by the concept of "plain view."
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.
This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.”
Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch?
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. “Police officer safety,” 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.
Is it too soon to nominate Judge Kozinski for Justice Steven's seat on the Supreme Court?

(H/T Althouse)
Favorite iPod shuffle song:  "Mustang Sally" by Wilson Pickett

Looking forward to:  defending my "title" at Friday night poker at Andy's house.  Last night, I was down to my final dollar chip, caught a nice streak of cards, and worked my way up to become the money winner for the night.

BONUS Looking forward to:  the Mission Deli chicken enchiladas and green chili that our friends Matt, Michelle, and Jennifer brought out to us from Rocky Ford.  They were picking up a trailer they bought in Iowa, so they stopped for the night in Omaha.  We had a great dinner of Orsi's Pizza with them, and we got to see what a little fish Jennifer is in the hotel swimming pool.

1 comment:

  1. I bet this won't be good law for long. The whole basis of the Plain View Doctrine is that it has to be in plain view and state actors cannot move anything in order to identify the item as contraband. It has to be immediately apparent. See Arizona v. Hicks, 480 U.S. 321 (1987). -Rach