Kozinski Demonstrates Foreign Language Knowledge in Call for Rehearing
The chief judge of the 9th U.S. Circuit Court of Appeals is calling for an en banc rehearing in a dissent that makes no bones about his view of the original Fourth Amendment decision.
Judge Alex Kozinski lamented government “encroachment” into homes, “abetted by the creative collaborators of the courts” in criticizing the original decision by a panel of the San Francisco-based court.
The panel decision (PDF) in United States v. Lemus was written by Judge Jay Bybee, a former Justice Department lawyer criticized for writing legal memos authorizing harsh interrogation techniques for terrorism suspects.
Bybee wrote that police officers were justified in searching the living room of defendant Juan Hernan Lemus because it immediately adjoined the place of arrest—at the sliding glass door Lemus had approached to enter his apartment. A search of the living room revealed the butt of a gun sticking out of the couch. Detectives then got a warrant, and Lemus was charged with being a felon in possession of a firearm.
“Lemus’ living room not only immediately adjoined the area of arrest, but was a place from which an attack could be immediately launched,” Bybee wrote. “The district court found that Lemus had opened the sliding glass door, which created additional hazards for the officers.”
The 9th Circuit refused a rehearing (PDF) en banc, and Kozinski dissented. “This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency—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.”
The decision in the case, he writes, is “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.”
Hat tip to How Appealing.
