Feb 23

Great Moments In Appellate Dissents

Courts and the Law Alex Kozinski, Fourth Amendment to the United States Constitution, great moments in appellate dissents, United States Court of Appeals for the Ninth Circuit Comments Off

Background: Under Maryland v. Buie, 494 U.S. 325 (1990), police who arrest a suspect in the suspect’s home are entitled to, even though they do not have a valid search warrant, conduct a protective sweep of the adjoining areas of the home, where an accomplice could potentially be lying in wait, for the purposes of officer safety.  Any evidence that they discover in the course of such a sweep can be seized under the ”plain view“ doctrine (i.e., police can seize items that they immediately recognize as evidence or contraband in an area where they’re lawfully present, even though that area is otherwise protected by the Fourth Amendment and police would normally require a warrant to search it). 

In United States v. Lemus, 582 F.3d 958 (9th Cir 2009), a panel of the U.S. Ninth Circuit Court of Appeals, relying on Buie, upheld a warrantless search of a suspect’s home although the suspect was arrested in the doorway of his residence with the police never having entered the premises prior to the search.  A judge of the court sua sponte called for rehearing of the case en banc, but rehearing en banc was denied.

Read as Judge Alex Kozinski, dissenting from denial of rehearing en banc, absolutely (and righteously) flenses the court.