ATTACKS ON THE 4TH AMENDMENT
There is more news about the 4th Amendment, the Georgia Supreme Court has been busy regarding search of cell phones incident to arrest (article - http://www.llrmi.com/articles/legal_update/2012_us_hawkins_ga.shtml) and ISPs (article - http://patctech.com/news/tech_2012_hatcher.shtml). Below is an original article from about a year ago.
When one truly ponders how our history and the evolution of our laws and governing bodies have progressed, one will recognize the fact that our freedoms have slowly been taken away from us. However, there is usually a process that the governing bodies should abide by while stealing our rights.
In April and May so far this year (2011), three significant mouth dropping decisions have been handed down by a US Supreme Court, a US Court of Appeals 7th Circuit and an Indiana Supreme Court.
Let’s begin with the US Supreme Court (Kentucky v. King – 09-1272) – entering a home. The summary of what occurred is that the police in Lexington, Kentucky followed a suspected drug dealer to an apartment. (The officers were called to the apartment by an undercover officer who had just watched the setup cocaine deal with the suspect.) The officers smelled marijuana outside the apartment door; they then knocked on the door loudly while announcing their presence. The officers claimed to have heard noises coming from the apartment and they believed that the noises were “consistent with the destruction of evidence”. The officers then announced their intent to enter the apartment, kicked in the door, but did not find the suspected drug dealer. The officers saw drugs in plain view during the initial protective sweep of the apartment and then found additional evidence during a subsequent search. The charged defendant was denied his motion to suppress the evidence, by the Circuit Court holding that exigent circumstances, the need to prevent destruction of evidence justified the warrantless entry. The Supreme Court of Kentucky then reversed stating the “exigent circumstances existed, but it nonetheless invalidated the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence”.
The kicker in this case, is that the officers had the wrong apartment to begin with however; the original suspect was later found in another apartment and was arrested by using similar tactics. The Supreme Court’s majority and dissenting opinions on this case, can be found at this link.
Although it was the loud knocking by the officers and the announcement of their intent to enter the apartment that prompted the occupants to attempt the destruction of evidence, the exigent circumstances rule was upheld by the US Supreme Court.
If officers are by law not to create the “exigent circumstances” in order to enter warrantless, then how does this rule apply? The officers indeed created what they deemed “exigent circumstances” not only by their behavior outside of the apartment door but also by the set up drug deal in the first place. One question being how it can be articulated based upon the officers’ training and experience, that “hearing shuffling noises” behind a closed door, is at a minimum articulating reasonable suspicion of destruction of evidence. If they knew this drug buy was about to take place, then they could have posted an officer at the premises after the dealer returned to his apartment. At that time they could have presented a search warrant affidavit to the on call judge, for execution, without risk of destruction of evidence or losing the suspect.
Now on to the US Court of Appeals 7th Circuit involving a case where a Phoenix, AZ detective attached a GPS system on a suspected drug dealer without a warrant to do so. The suspect was followed across several state lines for approximately a two day time frame in 2008. Of course the suspect was stopped and lo and behold drugs were found in his car, thus the suspect arrested and charged. The suspect did enter a conditional guilty plea with the right to appeal, which he did. The ruling handed down on April 28, 2011 by the three judge panel claimed searches of this type involving this particular case do not violate the Fourth Amendment. In other words, forget obtaining a legitimate warrant, just sneak a GPS on a car and enjoy the ride. If you are interested in seeing the details of the GPS case all 52 pages of (US v. Cuevas-Perez - 10-1473) may be found here.
Now on to the third and most disturbing rulings thus far by one of our governing bodies in the state of Indiana. This case involves a domestic disturbance in 2007 involving a husband and wife. Officers were called to a home where the husband was packing his car. The husband was agitated and told the officer he wasn’t needed, and went back into his home and blocked the door. The officer then entered the home and the husband shoved the officer up against the wall, then a second officer entered the home and used a stun gun on the husband. At trial the jury was not instructed on the right of a citizen to reasonably resist unlawful entry into a citizen’s home, and the jury found the husband “guilty of battery on a police officer, resisting law enforcement, and disorderly conduct”. The decision handed down, “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.” Interestingly the judge admits that this was an “unlawful police entry”. If that doesn’t make you go huh and do some head shaking, I don’t know what will. More reading on this case, (Barnes v. Indiana - 82S05-1007-CR-343) can be found at this link.
I did not realize that we have old amendments and modern amendments in place. There must be a law in place that explains this interesting idea. Let us not forget our 4th Amendment, “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.” As far as I am aware, this is still referred to as the 4th Amendment to the United States Constitution, not the old 4th Amendment to the United States Constitution.
Some of you may be thinking, but I am not a drug dealer or an addict, we do not have any domestic issues, and I have nothing to hide. That is not the issue here in all of the above scenarios; it’s the continued issue of taking away our rights whether you are a drug dealer or not, whether you abuse your spouse or not, the laws set a precedent for all of us, even those of us who abide by the laws in the first place. Take a step back and a hard look at what is happening around us each and every day. If our amendments were put in place to be followed by our law makers, then why aren’t they?
Karen S. Beers, BSW, CCDI
Legal Investigator
Associates in Forensic Investigations, LLC
[email protected]
Links in this article:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=09-1272
http://law.justia.com/cases/federal/appellate-courts/ca7/10-1473/10-1473-2011-04-28-opinion-2011-04-28.html
http://indianacourts.us/blogs/caseclips/2011/05/20/barnes-v-state-2/
Karen S. Beers, BSW, CCDI, earned her Bachelor's in Social Work from Colorado State University (Magna Cum Laude). She is also a Certified Criminal Defense Investigator (CCDI) and certified in Medicolegal Death Investigations. Her background, education and experience with victim advocacy and counseling are valuable assets in working with families and victims of traumatic events.
As a death investigator Karen was involved in the investigations of all manners of deaths and incidents, training under three Forensic Pathologists. From 2004-2006 she investigated and assisted with numerous death cases and scenes, and assisted with forensic autopsies.
Following graduation from Colorado State University was an extensive internship at a youth counseling and rehabilitation facility. She is also a member of the Criminal Defense Investigations Training Council. Karen has been professionally published with 'The Basics of an Autopsy Report' (PI Magazine, Dec 2011) and 'Understanding Suicide and its Prevention – Equivocal Death Investigations' (PursuitMag.com, Dec 2011), ‘False Confessions and Accusations’ (PursuitMag.com, Feb 2012). With Dean she co-developed 'Death Investigation for Private Investigators', an online continuing education course for www.PIEducation.com.
Karen is a member of the Criminal Defense Investigation Training Council and the National Defender Investigator Association. In addition, she has also been invited by, and joined, the National Association of Professional Women for membership.
They have two daughters, a granddaughter and identical twin grandsons.
There is more news about the 4th Amendment, the Georgia Supreme Court has been busy regarding search of cell phones incident to arrest (article - http://www.llrmi.com/articles/legal_update/2012_us_hawkins_ga.shtml) and ISPs (article - http://patctech.com/news/tech_2012_hatcher.shtml). Below is an original article from about a year ago.
When one truly ponders how our history and the evolution of our laws and governing bodies have progressed, one will recognize the fact that our freedoms have slowly been taken away from us. However, there is usually a process that the governing bodies should abide by while stealing our rights.
In April and May so far this year (2011), three significant mouth dropping decisions have been handed down by a US Supreme Court, a US Court of Appeals 7th Circuit and an Indiana Supreme Court.
Let’s begin with the US Supreme Court (Kentucky v. King – 09-1272) – entering a home. The summary of what occurred is that the police in Lexington, Kentucky followed a suspected drug dealer to an apartment. (The officers were called to the apartment by an undercover officer who had just watched the setup cocaine deal with the suspect.) The officers smelled marijuana outside the apartment door; they then knocked on the door loudly while announcing their presence. The officers claimed to have heard noises coming from the apartment and they believed that the noises were “consistent with the destruction of evidence”. The officers then announced their intent to enter the apartment, kicked in the door, but did not find the suspected drug dealer. The officers saw drugs in plain view during the initial protective sweep of the apartment and then found additional evidence during a subsequent search. The charged defendant was denied his motion to suppress the evidence, by the Circuit Court holding that exigent circumstances, the need to prevent destruction of evidence justified the warrantless entry. The Supreme Court of Kentucky then reversed stating the “exigent circumstances existed, but it nonetheless invalidated the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence”.
The kicker in this case, is that the officers had the wrong apartment to begin with however; the original suspect was later found in another apartment and was arrested by using similar tactics. The Supreme Court’s majority and dissenting opinions on this case, can be found at this link.
Although it was the loud knocking by the officers and the announcement of their intent to enter the apartment that prompted the occupants to attempt the destruction of evidence, the exigent circumstances rule was upheld by the US Supreme Court.
If officers are by law not to create the “exigent circumstances” in order to enter warrantless, then how does this rule apply? The officers indeed created what they deemed “exigent circumstances” not only by their behavior outside of the apartment door but also by the set up drug deal in the first place. One question being how it can be articulated based upon the officers’ training and experience, that “hearing shuffling noises” behind a closed door, is at a minimum articulating reasonable suspicion of destruction of evidence. If they knew this drug buy was about to take place, then they could have posted an officer at the premises after the dealer returned to his apartment. At that time they could have presented a search warrant affidavit to the on call judge, for execution, without risk of destruction of evidence or losing the suspect.
Now on to the US Court of Appeals 7th Circuit involving a case where a Phoenix, AZ detective attached a GPS system on a suspected drug dealer without a warrant to do so. The suspect was followed across several state lines for approximately a two day time frame in 2008. Of course the suspect was stopped and lo and behold drugs were found in his car, thus the suspect arrested and charged. The suspect did enter a conditional guilty plea with the right to appeal, which he did. The ruling handed down on April 28, 2011 by the three judge panel claimed searches of this type involving this particular case do not violate the Fourth Amendment. In other words, forget obtaining a legitimate warrant, just sneak a GPS on a car and enjoy the ride. If you are interested in seeing the details of the GPS case all 52 pages of (US v. Cuevas-Perez - 10-1473) may be found here.
Now on to the third and most disturbing rulings thus far by one of our governing bodies in the state of Indiana. This case involves a domestic disturbance in 2007 involving a husband and wife. Officers were called to a home where the husband was packing his car. The husband was agitated and told the officer he wasn’t needed, and went back into his home and blocked the door. The officer then entered the home and the husband shoved the officer up against the wall, then a second officer entered the home and used a stun gun on the husband. At trial the jury was not instructed on the right of a citizen to reasonably resist unlawful entry into a citizen’s home, and the jury found the husband “guilty of battery on a police officer, resisting law enforcement, and disorderly conduct”. The decision handed down, “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.” Interestingly the judge admits that this was an “unlawful police entry”. If that doesn’t make you go huh and do some head shaking, I don’t know what will. More reading on this case, (Barnes v. Indiana - 82S05-1007-CR-343) can be found at this link.
I did not realize that we have old amendments and modern amendments in place. There must be a law in place that explains this interesting idea. Let us not forget our 4th Amendment, “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.” As far as I am aware, this is still referred to as the 4th Amendment to the United States Constitution, not the old 4th Amendment to the United States Constitution.
Some of you may be thinking, but I am not a drug dealer or an addict, we do not have any domestic issues, and I have nothing to hide. That is not the issue here in all of the above scenarios; it’s the continued issue of taking away our rights whether you are a drug dealer or not, whether you abuse your spouse or not, the laws set a precedent for all of us, even those of us who abide by the laws in the first place. Take a step back and a hard look at what is happening around us each and every day. If our amendments were put in place to be followed by our law makers, then why aren’t they?
Karen S. Beers, BSW, CCDI
Legal Investigator
Associates in Forensic Investigations, LLC
[email protected]
Links in this article:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=09-1272
http://law.justia.com/cases/federal/appellate-courts/ca7/10-1473/10-1473-2011-04-28-opinion-2011-04-28.html
http://indianacourts.us/blogs/caseclips/2011/05/20/barnes-v-state-2/
Karen S. Beers, BSW, CCDI, earned her Bachelor's in Social Work from Colorado State University (Magna Cum Laude). She is also a Certified Criminal Defense Investigator (CCDI) and certified in Medicolegal Death Investigations. Her background, education and experience with victim advocacy and counseling are valuable assets in working with families and victims of traumatic events.
As a death investigator Karen was involved in the investigations of all manners of deaths and incidents, training under three Forensic Pathologists. From 2004-2006 she investigated and assisted with numerous death cases and scenes, and assisted with forensic autopsies.
Following graduation from Colorado State University was an extensive internship at a youth counseling and rehabilitation facility. She is also a member of the Criminal Defense Investigations Training Council. Karen has been professionally published with 'The Basics of an Autopsy Report' (PI Magazine, Dec 2011) and 'Understanding Suicide and its Prevention – Equivocal Death Investigations' (PursuitMag.com, Dec 2011), ‘False Confessions and Accusations’ (PursuitMag.com, Feb 2012). With Dean she co-developed 'Death Investigation for Private Investigators', an online continuing education course for www.PIEducation.com.
Karen is a member of the Criminal Defense Investigation Training Council and the National Defender Investigator Association. In addition, she has also been invited by, and joined, the National Association of Professional Women for membership.
They have two daughters, a granddaughter and identical twin grandsons.
