29 March 2004

Thanks to Eugene Volokh for pointing this case out on the Volokh Conspiracy.

U.S. v. Gould

Facts: Police get an unsubstantiated tip that a known violent felon plans to kill a couple judges. They go to the guy's trailer and are let in by another resident (entry into the trailer is constitutional). They then go to Gould's bedroom (where the roommate has told them Gould is sleeping) and when they do not find him there conduct a search under his bed and in his two closets (finding firearms). The officers then leave the trailer and later find and arrest Gould who admits possession of the weapons.

The difficulty for the prosecution: The other resident can give the officers leave to enter the trailer but does not have the authority to allow them into Gould's bedroom. On their face both the entry into the bedroom and the subsequent search are unconstitutional.

The offered exception: The officers entered the bedroom and conducted the search as part of a "protective sweep" in order to assure their safety.

The problem with the exception: The officers could not claim probable cause because they only had a tip from a source without established reliability; thus they have to claim they were only there to talk to the guy and had no intent to arrest him. The federal supreme court has only allowed the protective sweep exception to the 4th Amendment during an arrest. The pertinent language in Maryland v. Buie, U.S., 1990, 110 S.Ct. 1093, 1098 is:
[A]s an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.
How the appellate court gets around Buie: The 5th Circuit first states that the only reason the arrest language was in Buie was because it was a case involving an arrest; therefore the "arrest" language can be ignored in cases wherein there was no arrest. It blows past all the cases which state that a home is the place of greatest 4th Amendment protections and applies a reasonableness test derived from Buie, Terry, and Michigan v. Long. As always happens under reasonableness tests, the court then finds the officers' search reasonable because officer safety trumps all.

The court cites a number of cases which it claims support its position that protective sweeps are allowed once valid entry into the residence has been gained by an officer (I have not the time to check them but at least a couple appear to be inapposite plain view cases). Even later in the opinion it blows off the trial judge's finding that the police created any danger to themselves by entering the trailer and not picking up Gould later (ie: in the morning when he left for work). The trial court says they can't create a danger and then rely on it to abrogate constitutional guarantees. The appellate court says all the right things about how the officers cannot do such a thing and then makes an excuse for them doing it in this case.

Rule of the case:

Narrowest construction: Once the police have gained a valid constitutional entry into a part of a house, if the police have an articulable suspicion of danger they have a right to search any part of the house where a person could be and they are allowed to enter areas where they would otherwise be committing a clear constitutional violation.

Widest construction: If an officer has a reasonable suspicion that someone dangerous might be in a residence the officer can conduct a sweep of that residence.

Nightmare construction: If an officer is in an area he has a right, "as a precautionary matter and without probable cause or reasonable suspicion", to conduct a protective sweep of the adjoining areas. The court tries to allay this fear in Note 1 but, having witnessed the travesty of post-Long loss of rights by anyone driving a car, I have to wonder.

My Opinion: The trial court had it right when it pointed toward the officers placing themselves in danger and then taking advantage of it to do a protective sweep. Herein lies the difference between Buie and it's progeny and Gould. There is quite often danger in serving a warrant and thus the deference to officers acting under the color of one. However, if an officer is acting without a warrant, probable cause, or even a report of immediate criminal activity he cannot be allowed to choose an action which places him in danger over safer courses of action and be allowed to violate the constitution because of the choice. How hard could it have been to have someone watch Gould's place overnight and stop him when he came out the next day? Sure it would have been inconvenient but that's far from the primary consideration in a constitutional analysis. This is the point at which the court errs in its constitutional analysis.

However, if the officers come into a dangerous situation through a constitutionally valid activity I think that they are justified in a cursory Buie-style search if there is a reasonable articulable suspicion of danger based upon objective factors. I favor this narrowest interpretation of the case and hope that a wider interpretation (which will be pushed by prosecutors and law enforcement) is not adopted making our houses into places which police can enter and search at whim as Long and its ilk have made our cars.

Addendum: Other commentary can be found at Miami Federalist Society, TalkLeft, Criminal Appeal, and Rebuttable Presumption.

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