…”in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home,” writes Judge Kozinski in dissent of yesterdays denial by the court to rehear the case en banc.

In the original decision, United States v. Lemus, the court had upheld the warrantless search of a defendant’s apartment into which the defendant had unsuccessfully tried to retreat when police arrived to arrest him. According to the court, “officers were there in an instant, taking hold of Lemus and handcuffing him before he could fully enter the doorway.” Officers then entered the apartment where they found stuffed between the cushions of a couch a weapon for which the defendant was charged.

I practice a lot of Fourth Amendment law. It’s one of my specialties. I regularly write suppression motions for a number of criminal defense attorneys (just a plug, there, for the local bar). And given the facts of this case, I would have assumed I had a slam dunk. I find in this case a disturbing retreat from the presumption of the home’s inviolability absent exceptional circumstances. Judge Kozinski’s indignant rant dissent is worth quoting at some length -

Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.” (Citation). The place where warrantless searches are deemed “presumptively unreasonable.” (Citation).

Government encroachment into the home, which I lamented three years ago in United States v. Black (citation) has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus’s home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.
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How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plainview case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.

This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Lemus, 582 F.3d at 960. Longoria then lifted the couch cushion “to make sure” and found a gun. Id. at 961. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant—if they could—based on what they saw, before rummaging through the couch?