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Jul 28, 2009

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"As I am sure you are aware, the 4th amendment prohibits you from entering this house without a warrant even if you have probable cause that I have committed a felony. If you cannot enter, a fortiori you cannot demand my identification. An American is not required to carry identification at home."

The following is a comment I wrote at http://ethicist.blogs.nytimes.com/2009/07/27/why-henry-louis-gates-should-sue/#comment-10007 in response to a comment by Mr. Jimenez:

Some writers have complained about entering Gates' home without a warrant. Guillermo C. Jimenez wrote:

"Crowley failed to heed Gates constitutional rights at least twice — first, when he asked Gates to leave his home, and second, when he entered Gates home without requesting permission — and Gates would be doing us all a favor if he made that clear in court."

This is wrong on the facts. Crowley entered the home to investigate a suspected burglary after someone called 9-1-1. He was looking for a possible burglar and did not know that Gates was the homeowner when he entered. This is decisive. The police have the duty to ask for permission from a homeowner to enter a house. However, does Jimenez argue that a policeman has to ask permission from a SUSPECTED BURGLAR to enter a residence to investigate that burglar?
.....
If that is the law, then please correct me. However, it is hard to imagine that is the law. If it is not, then will you correct your statement that " Crowley failed to heed Gates constitutional rights...when he entered Gates home without requesting permission..."?

Thanks for your time.

Chili Dogg

Chili Dogg - You find it hard to believe that the police are not allowed to enter a home to arrest a "suspected burglar" who presents himself at the entrance as the legal resident of that home.

Again, I cite for you US v Payton. In Payton, we didn't have a burglary -- it was a murder. And the guy did it, unlike Gates. The cops watched his pad for two days until they were sure the suspect was there, then they went in and busted him, pursuant to a NY Statute.

During the arrest they found a bullet casing which matched the murder. The defendant moved to suppress that evidence, and won at the Supreme Court, overturning a NY Statute that had roots hundreds of years old. The Supreme Court said, hey New York, no warrant, are you kidding? You can't go into the house without a warrant, even when you have probable cause to believe that a felon is within. All you had to do was get the darn warrant, if it's so important to you.

In Payton, the Court approvingly quoted an earlier decision, Johnson v US, 333 US 10, in which Justice Jackson had written:

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.

Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent."

CD, you have to try to understand that there is a distinction between what you might find to be the most common-sense reasonable thing to do, and that which is constitutionally permitted. It is frequently reasonable to allow the police to enter into our homes. Indeed, a failure to do so indicates a lack of trust in society's basic machinery, and is a highly regrettable occurrence. However, the Americans inherited from the Anglo-Saxons (the world's first people to subject their kings to law) a traditional belief that a private person's home is literally a castle from the law -- a legal sanctuary where you can retreat and be free from the reach of the state.

That belief is enshrined in the 4th Amendment. We are not saying that the government can't go into your house to stop you from killing your spouse (his or her screams, reported by neighbors, create "exigent circumstances").

When a break-in has been reported at a house, that is not a "suspected burglary" yet; we don't yet have "exigent circumstances". The police have to investigate further. All they know is that somebody forced a door.

If a person then shows up at the door and says, Yes, I was the one that forced the door, my name is XYZ, I own this residence, and I am going to allow you neither to enter nor am I going to provide you with ID, good day, sir...Well, then we have a fascinating legal question. This case has never gone to the Supreme Court. If it did, and if the Court followed the principles laid down in Payton, then it would have to rule that Crowley's actions were unconstitutional.

It may seem like a royal pain in the neck to you, Chili Dogg, but that's the cost of freedom. Cops must get a warrant in such a case to take any further action. I agree with you that freedom is often a pain in the neck for society and our neighbors. But after all, people died for it, didn't they?

Now let's say Crowley goes through with all this pain in the neck constitutional procedure and goes to get a search warrant. The judge will say,

"So, Sgt. Crowley, who did the suspect say he was?"

"He said he was some Prof Henry Louis Gates, somethin' like that."

"Sgt. Crowley, do you know that Prof. Gates is probably the most famous and illustrious resident of our fair city?"

"Actually, your honor, I didn't"

"Here, let me open up my laptop, tap-tap-tap, here's a recent picture of Prof. Gates. Is that the man that spoke to you, whom you now propose to arrest?"

"Yes, your honor, that's the suspect."

"You idiot, Crowley! You're asking me to sign a warrant to irritate THIS GUY? Do you know how touchy that guy is? Ouch! He's on best-buddy terms with every damn professor at Harvard Law School, I'll have Dershowitz waking me up at 3 a.m. with 20-page writs. Do you realize that if I signed this warrant your name would be on every news station across the nation tonight as the biggest jerk who ever wore a badge?"

"Well, I dunno 'bout all that, your honor, but I'm not saying I'm sorry, that's all, no matter what. I done what I done 'cause I thought was right, and all my fellow officers will back me up on that."

"Crowley, they say that exercise boosts IQ. I suggest you run a marathon immediately. Good day, sir."

(Judge rips up warrant and throws in trash)

Sgt. Crowley was investigating an eyewitness report of a possible crime in progress. Payton versus New York has nothing to do with that. The Fourth Amendment rights of Professor Gates were not violated.

Hi Guillermo,

Thanks for your detailed and informative reply. Based on your response, however, there seems to be a disconnect between what I wrote and what you think I wrote. Perhaps I need to write more clearly. Anyway, I will try to clear up any confusion. It’s fine if we don’t agree on some things. I just want to make sure we have clarity about what we both are saying.

>>JG wrote: "Chili Dogg - You find it hard to believe that the police are not allowed to enter a
home to arrest a "suspected burglar" who presents himself at the entrance as the legal resident of that home."

Actually, I don’t have a hard time believing that at all. I am aware of that fact. It would be both unconstitutional and silly of the police to arrest the homeowner who proves who he is. I’m not sure how you concluded that I thought otherwise. I neither said nor implied anything of the sort. In fact, I did not write about “’a suspected burglar’ who presents himself at the entrance as the legal resident of that home." With all due respect, you have added the part “who presents himself at the entrance as the legal resident of that home.” I took the policeman only to the point where he is there investigating a report of a possible break-in (in a neighborhood with several recent break-ins) and sees someone in the house, and, as I wrote, did not know that that person was the homeowner.

When he arrives at the house and sees someone inside, he does not know whether that person is the homeowner. He knows there is a possibility the person is a burglar and that the person is armed. He does not yet know whether the person actually is a burglar, but he can not rule out that possibility at that point. So in his mind is the reasonable thought that the person inside, having reportedly broken into the home, might be armed and dangerous. While the policeman knows the person might be the homeowner, he has to have some level of suspicion and caution because he does not know who the person is yet. He cannot eradicate all suspicion, as it would not be safe or prudent.

BTW, the statement “presents himself as the legal resident of that home” is not clear to me. Does that mean he merely said he was the homeowner (or renter) or that he showed ID to prove he lived there? I assume you mean the latter. The former would be questionable, of course.

Without getting bogged down in the particulars of the Gates’ case, let me state my MAIN POINT:
- All I am saying is that sometimes there are “exceptional or exigent circumstances” – and the Supreme Court recognized such in the two cases you cite – in which the police do not have to get a warrant to enter a home to make an arrest.

You note this yourself. That’s all I am saying!

Just for the record, I will quote the part about exceptional or exigent circumstances in the two cases you cited:

U.S. Supreme Court
Johnson v. United States, 333 U.S. 10 (1948)
http://supreme.justia.com/us/333/10/case.html

“There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with.”

U.S. Supreme Court
Payton v. New York, 445 U.S. 573 (1980)

(a) The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. To be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is present. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Pp 445 U. S. 583-590.

>>JG wrote: "CD, you have to try to understand that there is a distinction between what you might find to be the most common-sense reasonable thing to do, and that which is constitutionally permitted."

With all due respect, that statement comes across as condescending. It is also incorrect. I certainly understand the distinction.

>>JG wrote: "It may seem like a royal pain in the neck to you, Chili Dogg, but that's the cost of freedom. Cops must get a warrant in such a case to take any further action. Cops must get a warrant in such a case to take any further action. I agree with you that freedom is often a pain in the neck for society and our neighbors. But after all, people died for it, didn't they?"

Frankly, this seems even more condescending and it is also incorrect. You don’t know me and yet you make broad judgments and accusations in a manner that is very off-putting. Your presumptions are way off base. Not that I need to defend myself to you, but I am very concerned about protecting our freedoms from an overbearing government. You did not know that I am a libertarian and a member of the Libertarian Party, but you probably know enough about the LP to guess where I stand on intrusions by governmental officials, be they police or otherwise.

Yo, G, I just want to discuss the issues. I don’t want to get personal. You make some well-reasoned arguments and you know the law, so I hope we can keep any future discussions at that level.

Thank you for your time.

Chili

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