TheBrain
Rookie
- Apr 26, 2011
- 3,014
- 244
- 0
- Banned
- #41
The 4th has been swirling in the bowl for quite some time.
The undermining of the Amendment is predicated upon a legal fiction known as exigent circumstances, allowing law enforcement search and seizure authorization sans warrant. This contrivance began in the late 60s with Terry v Ohio and continued through the 80s in a series of rulings intended to fight crime, alleged drug offenses primarily.
There is an exception to the rule:
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.
Legal Definition of 'Exigent Circumstances'
The problem is any type of police involvement can constitute a government-induced emergency. Going to the wrong door and pounding on it because you smell pot and its not clear from which door the odor emanates is a clear example of this.
Its obvious that the fiction of exigent circumstances does not comport to the Framers original intent of the Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It says nothing about disregard Amendment in case of emergency.
That evidence may be lost because it takes too long to secure a warrant is not the concern of the Amendment this is the codification of civil liberties, not an instrument of law enforcement.
You keep talking about odor emanating and not sure which home it comes from. How often do you think that happens that a LEO smells pot but isn't sure which house it comes from and just kicks in the door anyway? MOST LEOs are not going to enter a home for the sole reason that they smell pot from the front porch, that is just fact.
The more likely scenario that has led to exception is that a LEO arrives at a residence is response to a DV report and hears a woman screaming inside or hears sounds of a struggle happening in the home. Now CLEARLY we don't want that woman's life to depend on the speed with which a warrant can be obtained do we?
I would say of course I don't, and I hope you don't. Now that we have established that there ARE times that we are FOR LEOs entering a home sans warrant we next have to move onto how we decide on an individual case when it was okay, and when it was not? Oh that's right , that's what the courts are for.
Your blanket statements that LEOs should NEVER enter a home without a warrant and that all LEOs are monsters who don't give a shit about anyone's civil rights are both stupid.