posted June 15, 2006 09:31 PM            

Court: No-Knock OK In Emergencies
Supreme Court Rules That Police Can Enter Homes Without Announcement
(Page 1 of 2)WASHINGTON, May 22, 2006

Fast Fact
The Supreme Court has devoted a surprising amount of attention this year to the rights of people whose homes were searched over their objections.


(CBS/AP) The The Supreme Court reaffirmed Monday that police can enter homes in emergencies without knocking or announcing their presence.

Justices said four Brigham City, Utah, police officers were justified in going inside a home in 2000 after peering through a window and seeing a fight between a teenager and adults.

Chief Justice John Roberts, writing for the unanimous court, said that officers had a reasonable basis for going inside to stop violence, even though they could not announce their arrival over the loud noise of a party.

"The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided," Roberts wrote.

The decision overturned a ruling by Utah's Supreme Court that said a trial judge was correct to throw out charges stemming from the police search. The trial judge ruled that police had violated the Fourth Amendment's prohibition against unreasonable searches by failing to knock before entering the house.

When the adults realized the officers were inside the house, they allegedly became abusive and were charged with disorderly conduct, intoxication and contributing to the delinquency of a minor — all misdemeanors.

In a separate opinion, Justice John Paul Stevens said that Utah courts could still find that the police entry was unreasonable under Utah's constitution. He called it "an odd flyspeck of a case," and said he was unsure why courts had spent so much time on a matter involving minor offenses.

CBS News legal analyst Andrew Cohen said the decision appears not to limit in a major way a person's privacy rights while at home.

"This isn’t a terribly surprising or significant case. It certainly tracks what most people would consider a sensible interpretation of what the police are supposed to do when they are answering a call," he said.

The Supreme Court has devoted a surprising amount of attention this year to the rights of people whose homes were searched over their objections.
CBS/AP) In March, the court ruled that police without a warrant cannot search a home when one resident says to come in but another tells them to go away, and the court's new leader complained that the ruling could hamper investigations of domestic abuse.

In a 5-3 decision, justices said police did not have the authority to enter and search the home of a small town Georgia lawyer, even though the man's wife invited them in. The officers, who did not have a search warrant, found evidence of illegal drugs.

At the time, Cohen called it a "wishy-washy decision."

Last week, justices held a special re-argument to decide whether police armed with a search warrant can rush into a home without knocking and seize evidence for use at a trial.

Roberts said in Monday's ruling that officers did everything right when they arrived about 3 a.m. after getting a complaint about a loud party. They saw juveniles drinking beer in the backyard.

After seeing the scuffle through a back window, an officer opened a screen door and tried to announce the arrival of police.

"When nobody heard him, he stepped into the kitchen and announced himself again. Only then did the tumult subside," Roberts wrote. He said the officers "were free to enter; it would serve no purpose to require them to stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence."

The case is Brigham City v. Stuart, 05-502.

******

What do you all think? I can kind of understand how this is not so utterly terrible but, at the same time, what if they barged into someone's house in the middle of the night by mistake? It has happened in the past ... officers are just people and make legitimate mistakes sometimes. What if you (the civilian) have a weapon and shoot at the "intruders" not knowing they're cops? Are you accountable for any deaths/injuries? Does self-defense and "perceived threat" still make a difference? These kinds of questions make me wary of this legislation. And no, I'm not crying out injustice for the sake of a few "mishaps" ... I'm genuinely curious if there are provisions to protect the little guy/gal in situations like these, however rare they may be.

Here are some other articles on the matter that address that last bit I was writing about.

http://instapundit.com/archives/027353.php
http://www.slate.com/id/2139458/

posted June 15, 2006 10:53 PM            

quote:

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Court: No-Knock OK In Emergencies

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posted June 15, 2006 11:15 PM            

I don't see this court ruling to be an erosion of anyones civil rights.

A fight was in progress. There was so much noise the police couldn't be heard. The police observed the fight through the window and intervened.

posted June 16, 2006 12:27 PM            

Present is Officer Smith.

Officer Smith, did you respond to a dispatch call in the early morning of March 22, 2004?

Yes, we were assigned to routine patrol. The call came over our radio about 12:50am. We were dispatched to investigate a neighbor compliant described as a dispute in progress next door.

Did you respond to the dispatch?

Yes, we arrived at the location about 1:00am and heard what sounded like a loud angry argument in progress. There was a car in the driveway and another parked on the street in front of the house.

What action did you take officer Smith?

We knocked on the door but there was no response and the arguing didn't stop. So, we rang the doorbell repeatedly but there was still no response and the arguing continued.

What did you do next office Smith?

My partner, officer Jones went around to the back to see if a door was open but they were all closed.

What was the purpose of determining there were no open doors officer Smith?

If there had been an open door, we would have entered the premises under department regulations, an open door is an invitation to enter. But in this case they were all closed.

Did you or your partner check any of the doors to see if they were unlocked?

No. The doors were closed and to gain legal entry, someone having authority to grant permission would have had to be present and consented.

What did you do next officer Smith?

We went to the front window and attempted to see into the house. We observed a man and woman in what appeared to be the living room. They were arguing and yelling at each other. My partner rapped on the glass trying to get their attention but they didn't look our way.

What did you do next officer Smith?

I shined my flashlight through the window and waved it around trying to get their attention but there was no response from the couple.

What did you do next officer Smith?

I went back to the front door and knocked hard while ringing the door bell repeatedly but there was no response. My partner was still observing the couple through the front window and he told me they never looked up or stopped arguing.

Did you observe anything else from the front window while you were at the location officer Smith?

Yes, my partner observed what looked like a kitchen knife laying on the coffee table in front of the sofa. He told me his flashlight reflected off the blade or he probably wouldn't have seen it. When I came back to the window, my partner shined his light on the knife and I saw it too.

At any time while you or your partner were observing the argument, did either party touch or pick up the knife officer Smith?

No sir, it was just laying there on the coffee table.

Didn't you or your partner think it strange to see what appeared to be a kitchen knife laying on a coffee table in the living room officer Smith?

Yes sir but the city and the police department don't meddle into where or how occupants choose to store their knives, spoons, forks, pans, skillets or any other of their household furnishings.

What did you do next officer Smith?

I made one last attempt to get the attention of the couple by knocking on the door and ringing the door bell while my partner rapped sharply on the window glass and shined his flashlight through the window but there was no reaction or response by the couple who continued arguing and yelling at each other.

Did you consider what you were observing to be a situation which might turn into violence officer Smith?

Yes, but we couldn't gain legal entry and neither party responded to repeated attempts to get their attention.

What did you do next officer Smith?

I called the Watch Commander and told him what we had observed, that we thought there was a possibility of violence and requested he fill out a request for a search warrant. He agreed and told us to return code 2 to the precinct to sign the request and affidavit, which we did. When we arrived, the Watch Commander had the request filled out stating the particulars of what we observed and we signed it.

What happened next officer Smith?

The Watch Commander called and woke up an assistant District Attorney and requested a search warrant based on what we had observed. We then took the request to the Assistant District Attorney's home where she read it and agreed.

We were released to go back on patrol pending a judge signing a search warrant.

Was a search warrant obtained officer Smith?

Yes, we got a call to return to the precinct and pick up the warrant to serve on the occupants of the home. That dispatch came over the radio at about 2:40am and we returned to pick the warrant up immediately.

What did you do next officer Smith?

We returned to the home code 2 and arrived at about 3:00am. We then attempted to serve the warrant or in the alternative to enter the premises on the strength of the warrant. There was no response to knocking or ringing the door bell and there were no sounds coming from the interior of the house nor were the lights on.

We tried the door and found it unlocked and we entered the premises.

We found the man in the living room. He had been stabbed repeatedly and when we checked for a pulse, we couldn't find any. A knife was on the floor beside the man. We called emergency services for a paramedics team and went to look for the woman.

We found the woman in one of the bedrooms. She was on the bed and we observed what appeared to be a gunshot to the forehead. A pistol that appeared to be a 9mm Beretta was on the floor beside the bed next to the side she was on. We didn't pick the pistol up. When we checked for a pulse, we couldn't find one and called it in to dispatch and emergency services. We conducted a search of the premises but didn't find anyone else at the location.

We then left the premises. My partner, officer Jones went to the rear to prevent anyone from leaving or entering the house and I posted myself by the front door for the same reasons.

The paramedics arrived at about 3:20am and we admitted them to the premises. A few minutes later, a homicide detective and his partner arrived and released us to return to the precinct to file our report of the incident.

Officer Smith, do you believe you and your partner could have done any more to prevent the homicides which resulted from the call you were dispatched to investigate?

No sir. Under existing law and department guidelines, we could not legally enter the premises, the people inside didn't respond to our attempts to get their attention and the doors were all closed. We did not observe any violent action by either party. The fact we observed what appeared to be a knife on the coffee table was not sufficient for us to make the assumption it would be used or that it was there for that purpose.

We didn't even know if this was a domestic dispute in progress because of the car parked on the street in front of the house. Under those circumstances, the car could have belonged to one of the parties or to a neighbor. One of the parties could have been a friend, a relative or a business associate. We are not permitted to guess and take action based on assumptions.

About 4 years ago, I responded to a domestic dispute in progress and knocked on the door. No one answered the door so I went to a window and looked inside. I saw a man slapping a woman. I tried the door but it was locked so I kicked the door in and entered the premises. The woman was bruised so I arrested the man for assault and battery. I called parametics to attend to the woman's injuries and took the man to booking where he was booked and later charged with domestic violence and assault and battery. The woman refused to be examined by the paramedics and wouldn't open the door for them.

The woman refused to sign the compliant and also refused to testify against her boyfriend. The mans attorney challenged my entry into the premises without a warrant and without the permission of either party living there to enter. The judge dismissed the case against the man and stated I was illegally on the premises and that had I not been I couldn't have seen any bruises on the woman. He further stated that the man and woman claimed they were rehearsing a scene from a play and that he never struck her. He stated the evidence of assault and battery I observed and my direct statements were fruit of the poisoned tree in that the evidence was gathered illegally and could not be used against the defendant.

I, as well as the department and city were later sued by the man for false arrest, false imprisonment, violation of civil rights, police brutality and damage to the house.

The city settled the case out of court for about $50,000 plus attorney fees and I got a 3 day suspension from duty, without pay.

Thank you officer Smith.

End of interview of officer Smith."

posted June 16, 2006 01:44 PM            

EXIGENT CIRCUMSTANCES - Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.' United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984).

Exigent circumstances may excuse failure to make an announcement or to wait for the occupant to refuse entry. United States v. Mendonsa, 989 F. 2d 366, 370 (9th Cir. 1993). The existence of exigent circumstances is a mixed question of fact and law reviewed de novo. Id.

A search is reasonable, and a search warrant is not required, if all of the circumstances known to the officer at the time, would cause a reasonable person to believe that entry or search was necessary to prevent physical harm to the officer or other persons/the destruction or concealment of evidence/the escape of a suspect, and if there was insufficient time to get a search warrant.

The federal 'knock and announce' statute, 18 U.S.C. S 3109. Section 3109 requires 'police officers [to] knock, announce and be refused entry before they break into a residence. Exigent circumstances excuse noncompliance.' United States v. Turner, 926 F.2d 883, 886 (9th Cir.), cert. denied, 502 U.S. 830 (1991). Specifically, the court found that immediate entry was necessary 'for [the officers'] protection and the protection of others inside as well as to prevent the destruction of any drugs in defendant's possession or in the home.'

A simultaneous, no-refusal entry is permissible if at least 'mild exigent circumstances' were present. See United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc) (mild exigency is sufficient to justify simultaneous knock/announce and entry if entry does not require physical destruction of property), cert. denied, 469 U.S. 824 (1984); United States v. Whitney, 633 F.2d 902, 909 (9th Cir.'80) ('only a mild indication of exigency is required to excuse noncompliance with the `refusal of admittance' requirement of section 3109'), cert. denied, 450 U.S. 1004 (1981).

When police have a reasonable and sincere fear that someone is in jeopardy and contraband might be destroyed, this usually constitutes sufficient exigency to justify a simultaneous, no-refusal entry. See McConney, 728 F.2d at 1206; Whitney, 633 F.2d at 909-10.

Exigencies created by the government cannot be the basis for excusing compliance with the warrant requirement. See, e.g., United States v. Hackett, 638 F.2d 1179, 1183-85 (9th Cir.'80), cert. denied, 450 U.S. 1001 (1981); United States v. Curran, 498 F.2d 30, 34 (9th Cir.'74). The rule has been applied only in cases where exigencies arose 'because of unreasonable and deliberate [conduct] by officers,' in which the officers ' consciously established the condition which the government now points to as an exigent circumstance.' See, e.g., Curran, 498 F.2d at 34 (emphasis added); Hackett, 638 F.2d at 1183; United States v. Calhoun, 542 F.2d 1094, 1102-03 (9th Cir.'76), cert. denied, 429 U.S. 1064 (1977). an honest miscommunication is not a case where the government purposely tried to circumvent the requirements of section 3109. Cf. Hackett, 638 F.2d at 1184-85; Curran, 498 F.2d at 33-34.

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Lioneye, you're right, you are damned if you do and damned if you don't. The only cases my father ever gets bitter about concerning his 33 years in law enforcement were the domestic violence cases.

He'd get the call, break up the fight, arrest the guy only to have the whacked out women jump on his back and scream at him while beating on him. Then there would be the complaint for false arrest etc...

He was lucky in that he never had a judgment against him even with the BS of having to break up these fights.

People think that the cops are evil if they come into a house to break up a fight and negligent if they wait, file for the search warrant and someone dies.

In PG County MD the police department got so sick and tired of the false complaints (basically, ANYTHING they did would result in a false arrest case or police brutality complaint and subsequent payout by the citizens of the county) that they just stopped. See a speeder? Let them speed. See a break in - let it go. See a thug getting beaten by other thugs.. whoops I had to leave on patrol.

posted June 16, 2006 06:12 PM            

After all, in America, everyone is innocent until proven guilty. Right?

posted June 16, 2006 06:23 PM            

It's already a law and has been in affect for many, many years.. hence the old word "Exigent Circumstances"

But you see..... now we want to make it a big political thing- you know, with all the conspiracy theories, let's make a big deal out of forced entry when a potential crime or emergency is in progress.

posted June 16, 2006 07:26 PM              

thats the excuse they used to jump over oj simpsons fence and approach the house....after they saw blood inside his bronco.....

posted June 16, 2006 07:44 PM            

I'm aware that this isn't anything entirely new, and that the courts are only OKing this now to save cases from being thrown out on technicalities.

Of course, I'm all for the police stopping crimes and saving people in emergencies, but I don't think I need to point out the precedent this ruling sets. It's the slippery slope principle.