Mortons said on March 04, 2012  

So while the officers decide what they can and can't do, the person is half way out of the window to avoid arrest.

 Ken Lammers said on March 04, 2012  

Nope. Officers are smart enough to get the warrant before hand or have enough officers there to cover the exits while they call for one.

 Anonymous said on March 05, 2012  

C'mon Ken...I'm not expecting formal Bluebooking or anything, but some useful citations might be helpful.

Also, check U.S. v. Torrance Hill, 649 F.3d 258 (4th Cir. 2011), for a recent discussion of this issue. The Court mentions the circuit split over "reason to believe" versus "probable cause."

 Ken Lammers said on March 06, 2012  

Sorry. I'll use "page numbers" when i have to (in court briefs), but identifying cases we all look up on the computers in modern times by page numbers is just ridiculous.

The quickest way to look up a case online is to use the case number. This is especially true if you are using a service other than Lexis or Westlaw (my favorite when in private practice was VersusLaw and now I use, free via the Bar, Fastcase). My citation form is better. I only wish that the courts would start numbering their paragraphs for even better citations.

Name v. Name, Date, Court Case Number.

I am sorry that the names aren't underlined or italicized. I tried to get the blog to do it three time, but apparently there is something in the current format which removes the markups.

Maybe in the future I'll put my format for computer users and DCF (Dinosaur Citation Format) for those of you still using books. ;-)

 Anonymous said on March 12, 2012  

The problem with this right is that there is no remedy -- unless you are guilty.

I will tell you, in brief, the story of my arrest (for the avoidance of doubt, charges were abandoned with prejudice one week after the prosecutor interviewed the complaining witness):

Late one evening, at 2 a.m., I was awoken by a knock on my door. It turns out that a long-ago ex-girlfriend had claimed (falsely) that that evening we had been together and I had hit her. At my door were four police officers who only wished to "ask a few questions."

I said that I would not allow them too enter my apartment. They asked if I would open the door so we could talk without their shouting -- which they were unnecessarily doing in the hallway, risking embarrassment in front of my neighbors.

I said that I would open the door, but only to facilitate a conversation, and they needed to expressly agree that I was not giving them consent to enter.

They agreed. Sure enough, though, a few minutes later they decided that they had enough evidence (i.e., my denial) to arrest me on misdemeanor assault charges.

I said to them that I didn't think they could enter my apartment without my consent, and that I would not consent. They responded that if I did not agree to "voluntarily" let them enter my apartment, that they would forcibly enter and forcibly take me to the police station in my bathrobe. But, if I allowed them to enter and watch that I didn't obtain a weapon, they would allow me to dress.

At that point I said "you can enter only for the point of watching that I don't have a weapon when I get dressed." They agreed and, promptly, all four entered and began conducting an invasive search of the premises (looking behind books, etc.), which produced nothing whatsoever.

So what's my remedy? The only effect of a motion to quash the arrest, is that any statements made between the time of the arrest and my arrival at the police station (there weren't any) would be quashed. It would not have dismissed the criminal case.

Today, since the criminal case has been dismissed and sealed I could, I suppose, commence a Bivens action -- after a few years I would get a few dollars for the trespass, and the cost of it, to me, would be that the sealed case would become public knowledge.

So for innocent people, the right is useless. The only people who have an effective remedy, are people where the police find something during a search incident to the illegal arrest, etc.