Wednesday, May 25, 2016

Home is a sanctuary

In a most recent case the Ninth Circuit Court of Appeals reaffirmed the Fourth Amendment protection against warrantless invasions into a home. United States v. Lundin, 2016 U.S. App. Lexis 5236, 14-10365. Police went to Lundin's home at 4:00 a.m. to arrest him for a number of offenses that occurred earlier that day. They had neither a warrant to arrest nor a warrant to search. After the officers knocked on the front door, they heard several crashing noises coming from the back of the house. The officers ordered Lundin to come out with his hands up. He complied, and was handcuffed and put in a patrol car. Thereafter, officers searched the house and found incriminating evidence. Lundin moved to suppress the evidence. The government argued that the search was valid under a number of exceptions to the warrant requirement, including the exigent circumstances exception. The district court granted the suppression motion and the government appealed.

The Ninth Circuit affirmed and held: Warrantless searches and seizures are presumptively unreasonable. Although officers can conduct a warrantless search under exigent circumstances, they cannot create the exigency by engaging in conduct that violates the Fourth Amendment. Here, the officers caused the exigency—i.e., the crashing sounds—by knocking on Lundin's door at 4:00 a.m. The officers, however, were not lawfully at Lundin's front door. They were not permitted to knock on the door under the "knock and talk" exception to warrant requirement because this exception does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant. Moreover, under the "knock and talk" exception the government must demonstrate that the officers did no more than any private citizen might do, and “unexpected visitors are customarily expected to knock on the front door of a home only during normal waking hours.” There was no evidence that Lundin generally accepted visitors at 4:00 a.m.

 Search could not be justified as a protective sweep because there was no suspicion that anyone other than defendant was present at the residence. The government also attempted to justify the search of Lundin's home pursuant to the protective sweep doctrine. The Ninth Circuit rejected that justification. The doctrine authorizes a quick and limited warrantless inspection of those places where a person may be found when there are 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 harbored an individual posing a danger to those on the arrest scene. Here, officers had no reasonable articulable suspicion that anyone other than Lundin was present at the residence. Thus, the only threat to officer safety was Lundin himself and by the time the officers conducted a sweep of his home, Lundin had already been handcuffed and placed in a police vehicle.

The inevitable discovery exception does not apply when officers have probable cause to apply for a warrant but simply fail to do so. The government also argued that the inevitable discovery exception applied because they had probable cause and could have obtained a warrant. The Ninth Circuit disagreed: "To excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the warrant requirement of the fourth amendment." (United States v. Young (9th Cir. 2009) 573 F.3d 711, 723.) Here, the officers knew they had probable cause to arrest Lundin, but needed an arrest warrant to arrest him at home and a search warrant to search his house. They failed to obtain any warrant before the arrest and search. Under these circumstances, the district court correctly determined that the inevitable discovery exception to the exclusionary rule did not apply in this case.

The Court quoted from another case, "At [its] very core stands the right of a [person] to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). United States v. Lundin, 2016 U.S. App. LEXIS 5236, 817 F.3d 1151 (9th Cir. Cal. 2016)

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