9th Circuit’s Warrantless Search Ruling: Welcome to the Fishbowl

Judge Alex Kozinski, the chief judge for the U.S. Ninth Circuit Court of Appeals, is mighty pissed off at the 9th circuit’s refusal to hear a 4th Amendment warrant case.

As the San Diego City Beat writes:

The other judges decided not to consider an second appeal by a San Diego man whose house was searched, without a warrant, by police who had arrested him outside his home. That, Judge Alex Kozinski says, erodes the protections against unlawful search and seizure that Americans hold dear. And he goes so far as to suggest police lied to the court.

Here’s a snippet from Kozinki’s dissent. Actully the whole thing is worth reading. Plus I’m impressed wtih Kozkinski’s use of “bupkis” in a Federal Court ruling.

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 asuspect’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.

Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstancesjustif[y departure from the warrant requirement.” … The place where warrantless searches are deemed “presumptively unreasonable.”

Government encroachment into the home, which I lamented three years ago in United States v. Black, dissenting from the denial of rehearing en banc), has continued, abetted by the creative collaborators of the courts. This is another example:
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.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete.

Welcome to the fish bowl.

No kidding.

Read the rest of Kozinski’s opinion. It’s scathing.

The original majority decision may be found here.

Based on what Kozinski says, one is left to wonder how our city’s law enforcement agencies can be expected to train their young officers to respect the Constitutional rights of those with whom they deal—when the court appears to be saying that such nicities aren’t all that important.