Tuesday, September 7, 2010

The Fourth Amendment Exceptions That Don't Exist

The Sixth Circuit found a case where the Fourth Amendment applies.
In a per curiam opinion (that either means one that nobody wants to admit to having written or it means that the panel wants to emphasize that it is speaking with one voice) Judges Martin, Boggs fergodssake, and Cole hold that police need some justification before breaking down the door and entering a private residence.
The case is United States v. Kimber.  Here's the basic plot via the Sixth Circuit Blog.
[O]fficers, on routine patrol, came upon a private apartment building, which they knew in general was a "hot spot" for criminal activity. The building was protected by a keyed entry system. Officers did not have key access; however, undeterred, officers forced the back door of the property open. After entering the lobby area, the defendant, Mr. Kimber, entered the building, using a valid key. Upon seeing the officers, he turned around to leave; however, officers detained him, frisked him, and found a weapon.
So Kimber got himself busted for being a felon in possession of a firearm and for being in possession of that firearm in a school zone (which is worse).
Actually, the folks over at the Sixth Circuit Blog left out an important fact from that summary.  Here's how the Court put it (footnote omitted).
The officers were members of the District 4 Violent Crime Squad, which is charged with investigating drug complaints, drug activity, shootings, and robberies. They had no reason to believe that any specific criminal activity was occurring at the Alms Hill Apartments that evening, other than their generalized knowledge that the building was a crime “hot spot.” Rather, on account of inclement weather, they had decided to visit the building in lieu of patrolling the city streets.
Let us briefly marvel at the courage and commitment of the Cincinnati Violent Crime Squad which doesn't actually go outside in bad weather before noting the important fact buried in those sentences:  The cops broke into the building just 'cause.  No particular reason.  Not even a hunch.  Just 'cause.  Just 'cause what?  Just 'cause it was, well, here's Ishmael:
Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul; whenever I find myself involuntarily pausing before coffin warehouses, and bringing up the rear of every funeral I meet; and especially whenever my hypos get such an upper hand of me, that it requires a strong moral principle to prevent me from deliberately stepping into the street, and methodically knocking people's hats off -- then, I account it high time to get to sea as soon as I can.
The Cincinnati Violent Crime Squad doesn't go to sea in November. (The Ohio River isn't the Atlantic, and Cincinnati doesn't have too many whalers docking in its ports.)  The Violent Crime Squad just breaks down doors.
So the case goes forward and criminal defense lawyers doing what they do, Kimber filed a motion to suppress the gun as the fruit of an unconstitutional search.  Now, I've written before about how the Fourth Amendment is close to a nullity today, riddled with so many exceptions that even in theory it doesn't cover much.  (See here, for instance.)  But it's still worth rereading from time to time.
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.
Anyway, Kimber said it applied and the gun should be suppressed.  The government said no, and of course it had an argument.  Here's the Sixth Circuit Blog again.
In attempting to rationalize their breaking and entering of the building, officers contended that they had received from the owner of the building a "trespassing letter", which allowed them permission to be on the property. Unfortunately, the letter was dated two months after the defendant's arrest, and the letter did not cover forcible entry. Thus, the Court found this argument to be unavailing. The court also found unimpressive a letter dated two years previous to the arrest, as it was issued by a former owner of the property.
Wait, I need to clarify that last sentence.  It's the panel that found the old letter (and the new one, for that matter) "unimpressive."  The district court thought they were terrific.  Here's the panel describing the district court opinion.
As for Kimber’s assertion that the officers had no right to enter the Alms Hill Apartments
in the first place, the court concluded: “[t]he [o]fficers were present in a common area at the premises in the context of a valid trespassing investigation. The Court accepts the testimony that the location is a crime ‘hot spot,’ and that the [o]fficers’ presence was justified, and indeed welcomed by the owner of the building.” Ibid. In a footnote, the court elaborated:
At the May 1, 2007 hearing the government proffered a letter from Alms Hill building management, dated April 15, 2004, which shows the [previous] property owner authorized Cincinnati Police to enforce trespassing laws on the property. This letter, taken together with the more recent letter from the current property owner, dated January 31, 2007, and the [o]fficers’ testimony, leaves no doubt that [they were] authorized to enter the building on November 11, 2006.
In essence, the district court found no violation of the Fourth Amendment because surely the building's owners would have given consent to the search if they'd just been asked.  That's a new exception to the Fourth Amendment, hypothetical consent or imagined consent expectation of consent or woulda- shoulda-coulda consent or something.
But the court of appeals?  Those are the big guys.  The government had an additional argument for them.  Here's the blog again.
The Government also argued that because the rear door of the building was easily accessible by shoving or kicking the door, that the defendant (and presumably other tenants of the building) had no real reasonable expectation of privacy.
See, now we're onto something. The government argued that if they can huff and puff and blow your house down, you can't reasonably expect them not to do it.  Want to keep the cops out?  Prove it by barring your windows and putting police locks on solid steel doors.  Otherwise, you have no right to expect them not to enter.
The panel didn't buy that, either.
The Anglo-American tradition has long regarded the forcing open of locked doors by law enforcement officials with special disapproval (even where, unlike here, the police have a warrant supported by probable cause).
And so, the Sixth reversed.  Vacated the conviction.  Suppressed the gun.
The Fourth Amendment lives.  There is, at least in the Sixth Circuit (that's Michigan, Ohio, Kentucky, and Tennessee), no hypothethical, imagined, woulda-coulda-shoulda consent exception.  Nor is there an exception for residences that are locked but still easy to break into.
You in the rest of the nation can eat your hearts out.


  1. As Horace Greeley didn't quite say, Move west, young woman. The Sixth Circuit awaits.

  2. First we have a death sentence commuted, and now this? How are the police supposed to do their jobs? What is Ohio coming to? Next thing you know we'll have free speech...

    Thanks for posting this one. I am somewhat cheered.

  3. well i look at this!

    "In attempting to rationalize their breaking and entering of the building, officers contended that they had received from the owner of the building a "trespassing letter", which allowed them permission to be on the property. Unfortunately, the letter was dated two months after the defendant's arrest,"

    and just have to wonder where is the arrest warrants for the cops who submited false paperwork to the court!

    Now me i think the guy found two criminals who had jsut broke into his building...armed criminals.....under florida law he had every legal right to SHOOT THEM DEAD. but wait they had uniforms on so it's ok!....sorry in my book if your cormitting a crime you take the punishment. If the cops caught two individuals after breaking down a down carrying weapons..they'd be DEAD. so they get THE SAME!