Say Anything Blog

The Ninth Circus always entertains.

In a bad way.

Yes I’m sure that the Gestapo, KGB, Stazi, etc had ‘valid’ court documents before they broke into homes to haul people away.  This could mark the end of any knock arrests.  One more necessary step before absolute power of the people is achieved.

You don’t have to be a moron to be a liberal Democrat but it sure helps.

This is called “iminent discovery”. If the articles searched for would have been found regardless of whether a document was presented or not, and the officers are acting in good faith with the knowledge that a valid warrant exists, then the search is good.

That was a Supreme Court decision a few years ago. Presentation of the actual document has no bearing on the search as long as probable cause and a valid warrant exist.

And there’s an answer to this question:

And when a property owner opens fire or otherwise attacks police officers who have surprised him/her in their home, can we really blame that person for the deaths or injuries they cause?  Do they not have a right to defend their person and property?  And are the law enforcement officers, by not announcing their raid or showing a warrant, essentially unknown intruders?

If in fact the officers are raiding the wrong house then, in my opinion, the home owner has the ABSOLUTE right to defend himself. I would. If someone kicks my door in the middle of the night I can assure you that I would not be the only one taken out of there on a stretcher. That’s why it is incumbent upon the officers obtaining and serving the warrant to exercise all due diligence with its execution.

I’ve been involved in the service of many warrants. I can tell you that no-knock warrants have their use when it comes to officer safety. When you KNOW the meth head or the crack dealer in that house is armed you don’t want to give him time. That can be deadly.

That being said, I also believe that the potential for abuse with no-knocks is huge. Over-zealous cowboys who don’t do their research prior to the service of one can turn a situation into a tragedy.

Then there’s this:

lest we find our persons, homes and property totally open to search by any officer who can get a friendly judge to go along with his search request.

If the offcier finds that “friendly judge” and gets a faulty warrant signed with the knowledge that his sworn affidavit requesting the warrant is false then the offcier is acting in “bad faith”. The judge is not at fault. The officer is. The judge goes by what facts are presented in the officer’s affidavit attesting to probable cause.

There is a heavy price to pay for acting under the color of law in bad faith.

The future ain’t what it used to be.....

Two things: (1) How does this absolutism on warrants square with the position stated here elsewhere that warrants aren’t needed for wiretaps?  Isn’t the government equally likely to make mistakes in those cases?

(2) Even if it were illegal (which doesn’t seem to be addressed, this decision in line with Justices Scalia and Thomas’s position on exclusion: mere violation of technical law doesn’t justify exclusion, which is to be found nowhere in the Constitution.  IMHO, I think that’s a short-sighted position (absent the threat of exclusion, there isn’t much to stop cops from routinely violating technical rules).

If the articles searched for would have been found regardless of whether a document was presented or not, and the officers are acting in good faith with the knowledge that a valid warrant exists, then the search is good.

That’s not quite the issue here.  No one disputes that the warrant itself was valid, so the good faith question is never reached.  Instead, the question is whether a technical violation warrants an exclusion of evidence.

In your hypo, we’re dealing with a defective warrant that’s reasonably relied on by police; in this case, we’re dealing with a valid warrant but where the police haven’t complied with requirements of the process of service.

in this case, we’re dealing with a valid warrant but where the police haven’t complied with requirements of the process of service.

As explained above there is no particular “process of service”. This is not a civil subpoena. It’s a search warrant.

Another example of warrant service: If an officer is out with a subject and runs his name and dispatch advises that the subject has an arrest warrant entered into the computer, the officer has no need to show the subject the actual warrant. The fact that the warrant is entered into NCIC or a local database is probable cause for the arrest.

Civil vs. criminal. Two different animals.

The future ain’t what it used to be.....

As explained above there is no particular “process of service”. This is not a civil subpoena. It’s a search warrant.

There’s case law to that effect cited in the appellate court’s decision.  They quote another 9th circuit case: a search “may be presumptively unreasonable if officers fail entirely to serve a sufficient warrant at any time before, during, or immediately after a search of a home.” That’s a service requirement.

The reason that requirement is clearly not applicable
when a cop is out with a subject is that there are different rules for when a defendant is in his/her home.

It’s rather ironic coming from a bunch of people so up in arms about the so called “warrant less wiretaps” of the foreign dirt bags by the federal government.

1) I don’t think that evidence should be inadmisable in court because the piece of paper wasn’t at the premise when they did the search.  Those kind of technicalities let criminals go free. However,

2) Hector has every right to refuse the search, in my opinion, until a proper warrant is handed over.  I would not let any officers in my house until I had a valid warrant in my house.  Until that point, they would have to physically force their way in and they wouldn’t want to have to do that.  In this story, Hector appears to have let the officers in his hand when presented with the general warrant (sin address, etc) and so it is his fault for refusing the search.  Had he done so and the officers proceeded anyway, I would have a much bigger problem with the actions of the officers.

I think Rob hates me… I mean, just look at the pic he took of me!

The purpose of a search warrant is to make the evidence obtained by the search admissible in court.  It is not for the convenience of the suspect.

The only legitimate role of government with regard to economics is to prevent fraud and provide a remedy- civil and criminal penalties- in case of fraud.

People have the mistaken notion that the free market has no rules.  But it most certainly does.  All our problems are due to government meddling.

How is a property owner to be assured that the officers doing the searching are properly authorized?  And are restricting themselves to searching only the areas authorized in the warrant?

It is assured at trial or arraignment, the judge can rule that the search was wrong and throw out the evidence.

And if property owners don’t need to see the warrant what is the 4th amendment’s requirement that government authorities obtain one for?  What good does it do?

The good it does is requiring that a valid warrant be obtained otherwise the evidence is thrown out and the state loses the case. No evidence no case, this ruling is no big deal I worry allot more about no knock warrants.

Two things: (1) How does this absolutism on warrants square with the position stated here elsewhere that warrants aren’t needed for wiretaps?  Isn’t the government equally likely to make mistakes in those cases?

You are mixing apples and oranges here, wiretaps for law enforcement purposes absolutely need a warrant, wiretaps on foreign nationals and agents of foreign powers for military INTEL collection do not fall under the fourth amendment because the INTEL gathered will not see the inside of a court room.

wiretaps on foreign nationals and agents of foreign powers for military INTEL collection do not fall under the fourth amendment because the INTEL gathered will not see the inside of a court room.

Two follow ups: 1) The Patriot Act removed the wall (or a large chunk of it) separating intelligence and criminal investigations.  Even if the information seized isn’t used in a criminal investigation, the target of the warrant may be subject to indefinite detention, and may never see the due process rights afforded in criminal prosecutions.

2) If the post is correct, then the government makes mistakes.  Given that, isn’t the government capable of mistakenly thinking someone an agent of a foreign power?

From what I am gathering on this particular case, the police clearly had probable cause on this suspect. They knew with a high degree of certainty that this person had narcotics and weapons on his person. No problem so far. What is not clear is did they present this warrant to THE property owner?

Senor Hector was taken in an apartment. Did he own this piece of property? Was he a renter? Was the actual owner of the property notified, or did the owner participate in bringing this warrant into being? Being a renter the landlord/owner has the right of entry/inspection of that residence. When you sign a lease agreement there are many conditions stipulated, one of which is that no illegal activity is allowed/condoned.

Also, since they had a high degree of certainty that he did possess these items, why did they not take him in the street?

The regular gang here knows I am 100% for police coming to the front door, in uniform, badge clearly visible, face uncovered. Knocknock, present warrant. On that other hand, you come on my property dressed like a terrorist, behaving like a terrorist, you will be treated as a terrorist.

Una Salus Victus Nullam Sperare Salutem

I can almost study for the bar exam just by reading this blog.  Keep up the blawging, and I may not have to crack a book.

I’m pretty sure, Bat, that warrants are necessary for three types of people vis-a-vis the property: an owner, a renter, and an overnight guest of either of those.  The landlord couldn’t have let them in lawfully, because police can’t ask someone to do what they are forbidden (enter the premises).

What shocks me is that this question of whether a warrant must be shown to the target has never been addressed by the Supreme Court.

(sorry, I meant 2Hotel, not Bat).

I can almost study for the bar exam…
jpe on February 4, 2007 at 09:48 am

That doesn’t make any sense. What do mean you could “almost study.” What’s keeping you from studying in the first place.

Maybe you jokingly meant to say, “I could almost pass the bar without studying.” That would make a little more sense.

If you want to be a lawyer when you grow up, then you’ll need a little more attention to detail.

Nowadays falsehood stands erect and truth lies prostrate on the ground.

I meant what I said: reading this blog and assessing the issues therein almost rises to the level of engagement with law that studying the law books does.

Apparently, I’ve got the convoluted and utterly unclear language part of being a lawyer down pat.

(sorry, I meant 2Hotel, not Bat).

jpe,

I’m not at all offended by the mistake, but thanks for the apology.  I understand what you’re saying, and it speaks credibly to the level of our discussions that you would think so.  Again, thank you!

“Poverty of goods is easily cured; poverty of the mind is irreparable.”

Who are these people? Is it a requirement to make kook decisions at the 9th circuit?

Is it a requirement to make kook decisions at the 9th circuit?

It’s not a requirement as I think the ninth does it voluntarily.

C. Y., That is so thoughtful of them to do that on a voluntary basis!...NOT!