Newsbrief: Federal Appeals Court Rules Police Can Search Without Warrant 4/2/04

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In a March 24 opinion, the US 5th Circuit Court of Appeals in New Orleans has ruled that police do not need an arrest or search warrant to conduct a search if the search is a "protective sweep" to ensure the safety of officers. The ruling builds on a 1990 US Supreme Court ruling, Maryland v. Buie, which gave the constitutional okay to "protective sweep" searches conducted to ensure the safety of officers during an arrest. Under the 5th Circuit's ruling in USA v. Gould, such searches may be legally made without a search warrant or an arrest.

The ruling came in the case of Kelly Donald Gould, a Denham Springs, Louisiana, resident arrested in October 2000 on federal firearms charges. According to court documents, an employee of Gould's contacted law enforcement authorities to report that Gould was threatening to kill judges and police and he possessed weapons. Upon receiving the report, police checked Gould's criminal record and found he had a history of violent criminal offenses. Sheriff's deputies went to Gould's trailer without a warrant to question him and were invited in by another occupant who told them Gould was in his bedroom. But Gould was not there. The deputies, saying they feared for their safety, looked for him under his bed and in two closets, where they found three rifles. Shortly afterward, they found Gould outside in the woods. He was arrested, charged, and convicted as a felon in possession of a firearm based on the rifles found by the deputies.

Gould moved to have his conviction overturned, arguing that the evidence against him derived from an illegal search. A US district judge agreed, and so did a three-judge panel of the 5th Circuit. But that panel urged prosecutors to request a hearing before the full court to take up the question. Prosecutors did, and they won an 11-4 victory on March 24.

Evidence found in a "protective sweep" search designed to protect officers' safety inside a building or home they have entered legally (with consent) is admissible if it is only a "cursory inspection," the 5th Circuit held. The right of privacy must yield to the compelling government interest of protecting police officers, the court said.

A spokesman for the Louisiana chapter of the American Civil Liberties Union told the Associated Press the decision was dangerous. "This decision is the latest rollback of safeguards to protect the people from being at the mercy of a police state," said Joe Cook, the group's executive director. "Allowing law enforcement to search homes without probable cause or any warrant makes a dramatic and dangerous departure from one of our most fundamental American freedoms."

It wasn't just civil libertarians who were concerned. Two of the dissenting judges harshly criticized the ruling. "I have no doubt that the deputy sheriffs believed they were acting reasonably and with good intentions," Judges Harold DeMoss Jr. and Carl E. Stewart wrote, noting that the heart of the Fourth Amendment was its protection of the rights of citizens to be free from unwarranted searches. "But the old adage warns us that 'The road to hell is paved with good intentions.'"

Read the decision online at:

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Issue #331, 4/2/04 Show Cause Hearing for David Borden and David Guard's Civil Disobedience to Take Place This Morning | DRCNet Interview: Floro Tunubalá Paja, Former Governor of the State of Cauca, Colombia | Meth Panic Mantra: Save the Children | Czech Party Seeks Move to US-Style Drug War Policy | DRCNet Press Coverage | Medical Marijuana Advocate Confronts Congressional Opponent at House Hearing | Newsbrief: Federal Appeals Court Rules Police Can Search Without Warrant | Newsbrief: Addicts Take Prescription Heroin for Safety, Stability -- Not to Quit, Study Finds | Newsbrief: Another Safe Injection Site in British Columbia? | Newsbrief: Drugged Driving Bill Introduced in Ohio | Newsbrief: DUID -- Pass It and They Will Prosecute | Newsbrief: Who's Minding Your Utility Bill? | This Week in History | Job, Grant and Internship Opportunities with MPP | The Reformer's Calendar

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