CrimLaw

In reference to my post on Gould I received an e-mail from JKH stating:

Just discovered your blog today following links about US v. Gould. If the standard is do we (police) feel threatened, the answer will always be yes, that is the essence of our training. And going into harm's way is our job. Your worst fears will, I fear, be realized. I wish that the first impression of this particular point had involved an alleged threat against used car salesmen rather than judges, it just might have had a different result.

Even though I have spent a decade arresting people, I always remember the oath I take as an elected official to defend the Constitution -- it (the oath) doesn't say, except for the parts that are inconvenient for law enforcement. If it did, it would make all the Bill of Rights a dead letter.

Actually, I don't have a whole lot of a problem with the officers' actions. When they saw that a man whom they believed was dangerous was not where his roomate said he was they did the prudent thing and checked to make sure nobody would pop out of a closet and shoot them in the back as they left. In so doing they crossed a constitutional line but their objective, at that point, is to make sure that they get out alive to argue that on another day.

As I have stated previously, my problem is with the courts. The courts need to be able to recognize the fact that while an act might be reasonable in the moment it is not therefore constitutional. A trial judge should be able to look down from his bench, tell the officer that he understands and even approves of the actions taken for safety reasons but also be able to explain to the officer that, by virtue of the circumstances the officer got drawn over the constitutional line and the evidence is not admissible. An appellate court must be able to do this. The danger here is that, in this era of continued pressure to crack down on drugs (or whatever the immediate political hot-potato is), a group of street drug officers (in my experience the people most willing to push the bubble) shows up at a house, gets Momma to let them into the living room and then instantly fans out to do a Buie search of the house while Momma stands there in shock - because, drug dealers often use firearms and resort to violence. Therefore, Little Johnny, who has been dealing marijuana, is potentially dangerous to the officers and they must do a Buie search if they are going to stand in the living room and ask Momma when she expects Johnny back.

I'd like to say that I'm exagerating there but I can't. I would bet procedure in the 5th Circuit is already being adapted and this same issue will be pushed in other Circuits and States soon.