Sunday, March 28, 2004

Bad Cases Make Bad Law

5th Circuit gives police new power in searches

The old adage is all too true. This headline probably gives all of us who care about constitutional protections a chill. It is the details of the case, though, that are most unfortunate.

Here, police went to arrest a man at his trailer. They were told by another resident that the man was in the bedroom and invited the police in. Upon searching the bedroom the police found three weapons, but not the man (he was found later in the woods). At trial, the guns were not permitted as evidence because the judge concluded this was an illegal search.

The 5th Circuit Court of Appeals ordered a rehearing of the precedential case and as a result of their decision on rehearing have expanded the scope of permissible searches. It would seem to the ignorant observer (me) that the guns obtained ought to be admissible, as another resident invited the police in and told them that the putative criminal was in the bedroom. It would be logical that the police would look in the closet and under the bed. This ought not be the type of case where a court issues a broad reform of police search powers, though. And hopefully this decision will be read narrowly.

Looking at it from another perspective we may want to consider whether the invitor only had authority to grant access to common areas of the residence. Perhaps there is another threshold to be overcome to enter the private bedroom of the other person. Given that police did not have a search warrant, perhaps it would be best in those situations to require an affirmative act of permission by the bedroom's master to allow police access. Then we might also have to inquire as to who has the authority to grant access to a shared bedroom.

At bottom though, this whole mess could have been avoided had the police come armed with both a search warrant and an arrest warrant.


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