board77

This case has just been decided by the 6th Circuit Court of Appeals but since there was another thread about a search warrant I wanted to see what others think before I post the courts decision.

Officers are sent to an address on shots fired. Upon their arrival they learn that a previous 911 hang-up call came from the house, sevral hours earlier. On the return call to the house the person advised it was children playing with the phone.

The neighbor, who called in the shots fired call, advises that she heard one shot and then several minutes later heard 5 shots. She also advised that there was no one coming or going from the house since the shots were fired. She also advised that there were no children in the house.

An officer goes into the backyard where he finds 6 spent shell casings. A phone call to the house goes unanswered. Several attempts of knocking at the front and back doors go unanswered.

The sergeant decides to force entry into the house is needed. They request extra crews and they arrive 30 minutes later. The officers yell into the house and knock advising that if the door is not opened they would force entry.

The residents state that they came to the front window and showed the officers that they were alright and nothing was wrong. The officers were not satisfied with this and subsequently kicked the door and searched the house.

The officers were sued for for a USC 1983 violation (civil rights/14th Amendment violation). The officers claimed Qualified Immunity (which means that they cannot be sued due the circumstances of the situation indicated that they needed to act)

I pose two questions:
1) Is the search of the backyard reasonable?
2) Is the forced entry and search of the residence reasonable?

Why and why not?

feredir

The residents of the home were there when the front entry was kicked in? Both were unharmed and refused to state what had transpired? No minors or others were in the home?

I would charge them with whatever unlawful discharge of weapons in a residential neighborhood, disturbing the peace, and possibly disorderly conduct based on what very little you have stated. As far as the rest of it goes, if the shell casings were in the backyard, what was the rationale for busting down the front door? I hate to say it, but maybe the resident of the house was shooting at crows for all we know. I take it that the 911 call had no actual information provided from the call itself.

I will again state that I hate to say it, but IF the residents DID come to the front window and answered that they were okay, I do not see where kicking down the front door was in any way required from that point on, unless it could be determined that one of the two residents appeared to be stating such against their will. A touchy thing at best, especially if that party refused to file any charges and nothing was found in the house to lead the officers to see that something else had transpired.

You did not provide enough info - was it known from prior history of incidents that this home was a "hot spot" or that minors might be involved?

The scenario outlined here is sketchy at best, and since I have a BIL who is a cop as well I sympathize with your take on things, but I have seen far too often the excesses of the police force acting without sufficient cause in many situations, maybe not the fault of the police themselves, but with misguided zealousness on the part of the poorly written laws or goals of the municipality, county or even state. And, do not get offended, but cops DO get the "power of God and State" mentality to some degree, just as those who serve as soldiers often get. It takes a fine line to distinguish between many situations, and unfortunately, cops are told to always assume to expect the worst outcome, which does not often help matters.

What sounds confusing here is that the 911 call was "received earlier". Was there no police response at that time? If they left but were unconvinced of the situation that they saw at the time, then obviously that figures into to the whole case when the neighbor called later to report gunshots being heard. But, shell casings in the backyard do not show any crime that I can see on that evidence alone. When did the people inside the house show up in relation to when the door was kicked in? Being in the window as in doing what and when?

For me, there is not enough info to go by.

Big edit for clarity.

If it were just the gun shots it'd be different, but with the "fake" 911 call, it looks too suspicious. I say they had to make sure something wasn't wrong.

First, a bit of a clarification about qualified immunity. Qualified immunity is available to law enforcement officers (and other government officials) if their conduct did not violate clearly established constitutional rights that a reasonable person in their situation would have known was unconstitutional. Of course, if the conduct is held not to be unconstitutional at all, they are also shielded from liability. In some cases, even where the officers are entitled to qualified immunity, the municipality that they work for can still be held liable if the conduct is found to be unconstitutional AND it can be shown that they were acting pursuant to a policy or custom of the municipality. But I don't believe that is at issue in the case in question (yes, I did find the case and look it up).

I can say, as a civil rights attorney that has handled a number of 29 USC 1983 cases, that if someone came to me with just these facts I would not take the case. It is true that generally speaking, an invasion of a person's residence is the "chief evil" against which the Fourth Amendment protects. Absent a warrant, such an invasion can only be justified if there are exigent circumstances, meaning a reasonable believe of an imminent threat of harm to the officers or to others. However, based on just the information given, it seems clear to me that the officers had a reasonable belief that there was an imminent threat of harm to someone in the house.

However, there is a couple of additional pieces of information that Feredir left out that makes it a much more difficult call. First of all, the incident occurred on the evening of December 31, 2000. More importantly, the neighbors in question told the officers that they heard shots fired from the plaintiff's residence on the Fourth of July and the previous New Years Eve, and no one was harmed during those incidents. That suggests that the shots were fired in a celebratory manner, not in a threatening manner. When that is combined with the fact that the plaintiffs answered the door and told the officers that they were fine, the argument that the officers had a reasonable belief that there was an imminent threat of harm becomes much weaker.

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I can say, as a civil rights attorney that has handled a number of 29 USC 1983 cases, that if someone came to me with just these facts there is no way that I would take the case.

Do you mean take the defendants case or the prosecutors? (Don't fully understand your role and all. Hi, btw. )

Sorry, I should have been clearer. This is a civil case, not a criminal case, so there is no "prosecutor". There are plaintiffs and defendants. I represent plaintiffs (mostly in employment discrimination cases, but also occasionally in police misconduct cases). In these kind of cases, the police officers are the defendants. The residents of the house that the officers broke into are the plaintiffs. And just to clarify, if I knew all the facts, including those that I added, I would be much more likely to take a case like this on. Also, there are additional questions about the officer's conduct once they were in the house that raise separate constitutional issues.

And hi back at ya. Even though I "see" you all the time.

So, are you're saying that, minus the New Year's info, you don't feel the plaintiffs have enough of a case for you to consider it?

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And hi back at ya. Even though I "see" you all the time.

(Yes, but not in my home. )

I'm a Canadian so I'm answering this through my knowledge of the Criminal Procedures here.

1) Is the search of the backyard reasonable?

No, under the Canadian Charter of rights and Freedom s.8, provides everyone has the right to be secure againts unreasonable search or seizure. Section 8 has been given a broad and liberal interpretation so as to protect one's reasonable expectation of privacy, thereby extending to goverment conduct far beyond the conventional "search" of one's premises or property. This recognizes the principle of the inviolability of the dwelling house. It is there that the expectation of privacy is at its highest and where there should be a freedom from external forces, particularly the actions of the agents of the state, unless those actions are duly authorized. Even if it was in good faith and was motivativated by circumstances of urgency and necessity, it's still tresspassing.

2) Is the forced entry and search of the residence reasonable?

Yes, it is forced entry, the occupants didn't give consent. They said they were okay, why do they need to enter the house by force.

This is still my home too. Even if I don't hang out here that often anymore. I've invested too much in this place to ever give up on it completely (as I've said all along).

And yes, that is essentially what I am saying.

Rats, a lawyer in the flock . I did not intentionally leave those out, just an oversight. VTF is correct in his additions of fact. The 6th Circuit did not rule on anything except the qualified immunity (at least in my brief). The court ruled that there was exigent circumstances to warrant the entry into the house and granted qualified immunity to the officers. While the shots were on 12/31 they were at 7:30 in the evening, so a reasonable person would question them.

I do not know what was located in the residence. My brief also stated that the residents did not actually come to the door, merely stood in the window and talked through it. VTF, if you have a more complete disposition please share it.

The thing the court points to is that the officers had reason to enter the house because there was an exigent circumstance as to whether there was anyone else in the house. Just because the two people in the window said everything was fine deosn't mean someone else in the house isn't in need of help. The court also pointed out that they might have been forced to say everything is fine.

Based on the facts in the brief that I read, I would have forced entry into the house also. Now, once inside I would make sure everyone is OK and if I found something in plain view that was illegal I would stop and obtain a search warrant.

feredir

P.S. VTF, what circuit are you in?

Man, the police do have a lot of power in the US!

Hi, Feredir. Can I state that you are a lucky man? Lali is a lovely person.

Here is the actual opinion of the court: http://www.ca6.uscourts.gov/opinions.pd ... 12p-06.pdf

I should note that it was split decision, 2 to 1. The information about the plaintiffs saying that they were fine came from the dissenting opinion:

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the purported exigency would be extinguished by other circumstances showing that the gunshots did not represent an immediate threat. See O’Brien v. City of Grand Rapids, 23 F.3d 990, 997-98 (6th Cir. 1994). Here, the officers possessed precisely this kind of information. First, the plaintiffs answered the officers’ knocks at the front door, explaining that they were fine and showing the officers that there were no signs of injury. Second, the plaintiffs’ neighbor told the officers that she had heard gunshots coming from the plaintiffs’ home on both the prior New Year’s Eve and the Fourth of July, and she did not suggest that any harm had come from these prior incidents. This information showed that the gunshots heard by the neighbor did not present an immediate threat.
Instead, the plaintiffs were simply celebrating another holiday in their idiosyncratic way.

It's the 911 call that puts it over the top for me in favor of the cops action. Do they celebrate New Year's by faking 911 calls and then lying about them?

Now to add a little glimpse into a cops mind at this time. If you walk away and someone dies because you fail to act, you are now going to be sued AND live with the fact that your failure to act caused someone to die for the rest of your life.

Remember, the forcing entry is ONLY to check on the welfare. Anything you find by going beyond the "search" for persons is called "Fruits of the Poisonous Tree" and will not be admitted and can get you in trouble. That's where you stop and get a warrant.

For those outside of the US, don't think this happens all the time. I can count on one hand the number of times I've had to kick a door.

And yes VTF, I am a very lucky man.

feredir

Too much power, Lurker.

Yeah, I understand what you mean by walking away and someone dies but
aren't you endangering the lives of those inside the house by forcing entry? Thus, it is still your duty to make sure that your actions does not complicate things further.

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but aren't you endangering the lives of those inside the house by forcing entry?

How? They knew he was a cop and knew why he was there (their gunshots).

Searching the outside ...

Well, as a result of a court case in which garbage was used as evidence, the outside of the home can probably be searched with a lower threshold of probable cause.

But if the residents are there, and they don't invite the officer in, and it is indeed a holiday where shots are fired by a family that ofen fires shots on those holidays, no, searching the inside is completely and utterly unreasonable.

I dislike qualified immunity with great intensity and desire a world where average citizens can file criminal charges against government officials. Right now only the DA can file criminal charges, and he doesn't like to do it against cops.

You didn't understand what I'm trying to ask Feredir. I'm not referring to the case here.

Feredir said I quote

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Remember, the forcing entry is ONLY to check on the welfare. Anything you find by going beyond the "search" for persons is called "Fruits of the Poisonous Tree" and will not be admitted and can get you in trouble. That's where you stop and get a warrant.

If I were the bad guy, I would say who cares if you are a cop, there is four of us here, and only one of you. We are armed and we plan to kill the occupants of the house if you force yourself in.

Feredir was trying to say that sometimes the occupants were forced to say they are okay when in fact, the bad guys are still in the house. So forcing yourself in because you are a cop will stop the bad guys, no way. I call it reckless endangerment.

That's why in the other thread I posted that the cops didn't force me to open my door here eventhough my wife called 911 since it's my home, they have no jurisdiction unless they have a warrant. Plus the fact, I let them know who I am. They agreed to talk to me through the peep hole. Once you open that door, you have given consent here.

yovargas wrote:

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but aren't you endangering the lives of those inside the house by forcing entry?

How? They knew he was a cop and knew why he was there (their gunshots).

But, why was there a need at that point to kick in the door to gain entry? I am guessing that such a conversation was not proceeding as calmly as the one here is.

Feregir -

I guess I can empathize with your situation, but, given the bare facts as I see them now, I do not see how the police were within their authority to do as they did without something more concrete to back it up. What, for example, would the police have done in this case if someone was aroused from sleep and thought the worst had happened and thought the home was being broken into? What if a cyring child was scared, and the police assumed the worst, instead of mere fright? You forget how much power you wield in such situations, and one must learn to temper it with wise judgement instead of "well this might have/could have happened otherwise." Police ARE responsible for their actions, and as such, prudence is just as needed as much as protection. Overreaction seems to be the answer now in all too many cases that do not warrant it. I do not say that YOU do it, but it does seem to be an overall trend. Saving yourself from possible liability for not enough action is no way to react to something going in, despite what the chief and the municipal lawyers are going to tell you. All they do care about is potential lawsuits. They do not care so much about true justice, what is right, what is needed, what is proper at the time.

Hey, your job is not SUPPOSED to be easy. Why else would you get the option of retiring from the force at age 48? Not everyone out there is a bad guy, in fact, most people are NOT. Especially in cases where speculative neighbors are the major complainants.