Judge Protests Rehearing Denial in Warrantless Home Search Case

surround a suspect's home, guns drawn, and order him out-- (citing buie, 494 u.s. at 335-36). the opinion nowhere cites ing for contraband. the story that the officers went inside to whatever portion of lemus's body may have gotten into a small area near the arrest, not a grand tour of the entire blinking, a police sweep of a person's home without a war- out until lemus emerged and walked over to his mother's finding no one and nothing suspicious, the detectives entered before. in united states v. paopao, 469 f.3d 760 (9th cir. things in plain view, or close enough to lie about it. apartment"). lemus's arrest to conduct a leisurely search of his home look- his living room, the officers seized and handcuffed him with- home is a dangerous place for the police. this is a fair pre- order; stitutional protector of the sanctity and privacy of what amer- before: ronald m. gould, johnnie b. rawlinson and both parties cited it in their briefs. gerous might be hiding. id. at 333-36. the risk is present in side, just the same as in an "on-the-street or roadside he was arrested just outside it. the opinion misapplies government encroachment into the home, which i is that officers must be able to protect themselves when they arrest where someone who could ambush them might be hid- apartment). 494 u.s. at 333-36. here there was no in-home f.3d at 964, but buie only authorizes a suspicionless search ion "to make sure" and found a gun. id. at 961. under what longoria testified about the arrest: did. we should not abet such skirting of the fourth amend- warrantless searches have "always been considered to be the bedroom and bathroom too." id. the detectives then went 2533united states v. lemus when the police make an "in-home arrest" (and then only for house. and when they finally saw lemus walking back to his so what? under buie, lemus's location at the time of arrest entered the apartment and had a good look around. "checked expedition by four police officers inside lemus's home after reasonable suspicion. e.g., united states v. lawlor, 406 f.3d incentive to maneuver into a position where they can find the place where the protections of the fourth amendment are the officers had "a reasonable suspicion of danger." id. at 766 is irrelevant; it's the location of the police that matters. buie did i mention that this was an entry into somebody's home, and he complies--may the police go rummaging through his for the ninth circuit tively unreasonable." payton v. new york, 445 u.s. 573, 586 protect their safety is so transparently contrived that my col- order suspicion--with nothing at all but the presumption that the the denial of rehearing en banc), has continued, abetted by the for police who must enter to make an arrest. id. but buie says the threshold;" this was a well-coached witness. but what his charles, 469 f.3d 402, 405-06 (5th cir. 2006), involved a rant, without probable cause, without reasonable suspicion room, what authorized entry by the detectives? there was nificant," the court still requires "reasonable, individualized when he was inside? surely not. warrant to seize what they already know is there. this tire- apartment--the time when the detectives sprung into action-- cumstances justif[y] departure from the warrant requirement." he was alone. the panel goes to considerable lengths to approve a fishing 2531united states v. lemus outside of the back door"); united states v. colbert, 76 f.3d covered by the fourth amendment, where invasion of the circuits. it is also the only case i know of, in any jurisdiction lemus's apartment before and knew he lived alone. there 2535united states v. lemus thoughts. "police officer safety," the narrow justification in police into a man's house, his doctor's office or his isp. care- the police thought he had committed. before arresting him, 752, 759 (1969) (internal quotation marks omitted). the bears a heavy burden of demonstrating that exceptional cir- defined in terms of the justifying `exigent circumstances.' " the panel's fig leaf for this clearly illegal search is that "at had him handcuffed "before he could fully enter the doorway" until the suppression hearing. it was not in the probable cause (irrelevant) fact might redeem it. investigatory encounter." id. yet "[e]ven in high crime areas, the place where warrantless searches are deemed "presump- required to get a warrant--if they could--based on what they authorizes a search incident to an in-home arrest because 960-61. for publication theory of "plain view" may police lift cushions off a couch to they went inside a suspect's home. they didn't just peek after black is now gone. the evisceration of this crucial con- where the possibility that any given individual is armed is sig- the part of the story where lemus was arrested with one 1. the panel approves the entry of a team of police into an "on-the-street-encounter[ ]." id. at 334 n.2. if the police officers arrived at the scene just as lemus started to back v. terre haute police dep't, 535 f.3d 621, 624-25, 628 (7th and, while there, diaz thought he saw "something sticking out lemus's home by relying on maryland v. buie, 494 u.s. 325 storage unit, not a home. arrestee's home without suspicion, so long as the arrest is out themselves entering. lemus, 582 f.3d at 960. here is how being inside a suspect's home "puts the officer at the disad- home without suspicion because the suspect was arrested inside an arrestee's home are peculiarly vulnerable because absolutely no reason for the detectives to enter except to try one of the rooms there. their room-to-room sweep of lemus's apartment, apparently within a rifle shot of the home. every case because a suspect's home is inherently dangerous living room long enough to study lemus's couch and dig vantage of being on his adversary's `turf,' " 494 u.s. at 333 whatever may have been left of the fourth amendment 2537united states v. lemus support the entry except the curiosity police always have "[t]he officers were there in an instant, taking hold of lemus arresting officers to articulate reasonable suspicion that they room to another." 892 f.2d 1387, 1397 (9th cir. 1989), over- much. plain view encourages the police to find every possible outside the open door"); united states v. oguns, 921 f.2d panel here allows a search without any suspicion. merging walking away with the handcuffed lemus in tow, the officers back into the apartment breaking the threshold into longoria and diaz watched his apartment for over an hour, 773, 776-77 (6th cir. 1996) ("just outside a home"); united officers swept every room; longoria and diaz hung out in the 2536 united states v. lemus (emphasis added), where the officer has more to fear than in lemus was in his side yard when detectives longoria and buie, had nothing to do with this search. gathering evidence view case law is so favorable to the police, they have a strong a: no, he was inside the apartment. he had stepped the panel says the police could enter the home--with no united states of america, no. 08-50403 coolidge v. new hampshire, 403 u.s. 443, 478 (1971). the a strictly limited right . . . grow[ing] out of the inherent neces- 2534 united states v. lemus most lemus was only partially outside" of his living room this is a case in point. while the officers were finishing active judges of the court did not vote for a rehearing en banc. ues because it permits a search with zero individualized the apartment, and that is where we immediately about what they might find if they go rummaging around a ment by the police; it only encourages them to do worse. icans consider their castles is pretty much complete. welcome banc is denied. from the couch" that "looked like the butt of a weapon." states v. henry, 48 f.3d 1282, 1284 (d.c. cir. 1995) ("just apartment). the fifth circuit case it cites, united states v. the entire justification buie gives for a warrantless search view is killing the fourth amendment. because our plain- states v. thomas, 429 f.3d 282, 287-88 (d.c. cir. 2005) buie exception is particularly toxic to fourth amendment val- california, order if the officers and detectives had truly feared for their no other circuit allows entry into the home on less than paopao. it's not because the panel wasn't aware of the case-- q: so he wasn't in the apartment, he was just inside supposedly at their zenith? the place where the "government saw, before rummaging through the couch? very purpose of conducting a search. that is the situation we the panel quotes instead from an older case, united states through its cushions. the officers clearly took advantage of to the fish bowl. arrest. how do we know this? because the opinion says so: to find contraband in "plain view." so, the detectives went in 1030, 1032 (9th cir. 2001) (en banc). yet hoyos required the as well. yet buie permits only a sweep for people who might (1990), but buie is nowhere on point. buie was a case where court's findings and longoria's affidavit confirm this. [er some two-step is the new dropsy evidence. as often as not, nada. gar nichts. rien du tout. bupkes. cavely, 318 f.3d 987, 994-96 (10th cir. 2003) (arrest "just diately adjoined" the place surrounding the arrest, lemus, 582 jay s. bybee, circuit judges. f.3d 958, 960 (9th cir. 2009). note: they grabbed him and testimony makes clear is that the officers were not required checking to make sure they could retreat unmolested. the nothing at all about police who conduct an arrest outside of cir. 2008) (arrest occurred inside defendant's garage); united senting from the denial of rehearing en banc: for exceptions to the warrant requirement are becoming after- glass door. he had just broken the threshold pretty make sure something is contraband? why weren't the officers 2006), we upheld a search of an apartment after officers these officers were never at risk from anyone within the either, which might be consistent with a claim that they were fully drawn limitations in a warrant and narrow justifications the home. it does not authorize police to enter a home for the cuits all involved arrests inside, not outside, the home. peals who are already inside an apartment don't need to be sent in. fed. r. app. p. 35(f). the call for this case to be reheard en 1044, 1045-46 (9th cir. 2007) (kozinski, j., dissenting from q: okay. now when you arrested mr. lemus, he 2. we've dealt with an arrest made just outside the home lamented three years ago in united states v. black, 482 f.3d plaintiff-appellee, d.c. no. they aren't forced into the "confined setting of unknown con- a judge of this court sua sponte called for this case to be proposition. its cases from the second, seventh and d.c. cir- exposed to danger. but to use the exception as a wedge for the couch cushions) or in the two-and-a-half-page narrative supreme court precedent, conflicts with our own case law lemus, 582 f.3d at 960. longoria then lifted the couch cush- the door? v. hoyos: "a bullet fired at an arresting officer standing out- dissent by chief judge kozinski was standing in front of the sliding glass door? safety, they would certainly have moved away from lemus's they arrested the suspect. id. at 328. the question was and retreat into his living room." united states v. lemus, 582 search. suspect's home. once inside, the police managed to turn up search the home after an "arrest that occurs just outside the this is an extraordinary case: our court approves, without perform an "in-home arrest." buie, 494 u.s. at 333-34 & n.1 into the living room, where longoria found a gun. id. at after making the arrest, longoria "sent" the patrol officers hoyos and buie, as the panel does, allows police to search an the police were already legitimately inside the home when 2529 might be shot from inside the apartment. id. at 1397-98. the creative collaborators of the courts. this is another example: report longoria prepared about the arrest. [er 30, 42-43] it apartment, and they knew it. longoria and diaz had been to the chance of hitting the plain-view jackpot is what drives the ing room couch--and we reward them by upholding the foot inside the door was never mentioned by the detectives "scope" of a warrantless search "must therefore be strictly have here. side a window is as deadly as one that is projected from one a good look around, discover some evidence and then get a vqh-1juan herman lemus, southern district ofdefendant-appellant. and handcuffing him before he could fully enter the doorway when they realized the search was no good and thought this san diego home" requires reasonable suspicion); united states v. arrested a man in the hallway right outside, but only because 2530 united states v. lemus (inside apartment); in re sealed case 96-3167, 153 f.3d 759, wasn't any evidence lemus had an accomplice in the crime the very thing that buie says puts a police officer in danger: loophole to get themselves into a place where they can take to go inside lemus's home to arrest him; they chose to go suspicion" before police can perform a search. id. at 334 n.2. inside, unnecessarily exposing themselves to the very danger 10-11, 14, 60] a gun "in plain view"--stuck between two cushions of the liv- and before he could "retreat into his living room." instead of v. 3:07-cr-03238- chief judge kozinski, with whom judge paez joins, dis- and without exigency--in other words, with nothing at all to united states v. licata, 761 f.2d 537, 543 (9th cir. 1985). obtained after the officers had already gone digging through 3. how has it come to this? there's a simple answer: plain ruled on other grounds by united states v. ruiz, 257 f.3d the supreme court sought to ameliorate in buie. the district 442, 445-47 (2d cir. 1990) ("just outside of [defendant's] (1980). "in" to lemus's apartment. lemus, 582 f.3d at 960. officers slowly towards his living room door. after he opened it, when an arrest doesn't take the police into a suspect's home, v. lauter, 57 f.3d 212, 213, 216-17 (2d cir. 1995) (inside beginning in the early morning, but they saw no one go in or a: no, he had--he had stepped back into the sliding 37, 39, 41 (1st cir. 2005) (entry through an open door to statement supporting the warrant application (which was leagues can't even tell it with a straight face. id. at 960-61. (emphasis added). [er 42] note the emphasis on "breaking the panel cites not one case that stands for the contrary be dangerous. once the officers found no one in the living grabbed up [sic] him before he could make it into united states court of appeals figuration" that buie worries about. id. at 333. they're out- was a detail conveniently--but not very convincingly--added they are on the suspect's turf--a place where someone dan- sumption if the police are already inside the home and filed february 18, 2010 whether they could look in the area immediately adjoining the apartment once they took him into custody. instead, they did and is contrary to the great weight of authority in the other ing. id. at 328, 330, 333. the court recognized that police door when the officers seized him. lemus, 582 f.3d at 963. diaz called out that they were there to arrest him. two patrol reheard en banc. a vote was taken, and a majority of the sities of [certain] situation[s]." chimel v. california, 395 u.s. home has been approved based on no showing whatsoever. 2532 united states v. lemus 762-63, 770 (d.c. cir. 1998) (inside bedroom); united states entering the home turns buie inside out. suspicion whatsoever--because lemus's living room "imme-