I "believe" that's where the case will eventually hinge.if they lied to the man's wife....
Siding with law enforcement, the First Circuit noted that a police officer “must act as a master of all emergencies, who is ‘expected to...provide an infinite variety of services to preserve and protect community safety.’” By letting police operate without a warrant, the community caretaking exception is “designed to give police elbow room to take appropriate action,” the court added.
I agree that the case hinges on the warrantless search and seizure, not the lie. And I don't mean to play down the importance of that. It's just that I think police officers lying is a pretty serious affront to common sense and common decency as well.zukiphile said:The lie is odious, but I don't think that's the central issue in the case. POs lie to people routinely. The issue is the warrantless search and seizure for no good reason.
The Ct of App. seems to have solidified an exception to the 4th Am. that swallows the protection completely. From the article:
Elbow room to take appropriate action? No free person should be subject to that.Siding with law enforcement, the First Circuit noted that a police officer “must act as a master of all emergencies, who is ‘expected to...provide an infinite variety of services to preserve and protect community safety.’” By letting police operate without a warrant, the community caretaking exception is “designed to give police elbow room to take appropriate action,” the court added.
However the lie was what permitted the Search w/o warrant to go forward.The lie is odious, but I don't think that's the central issue in the case.
POs lie to people routinely. The issue is the warrantless search
That's a really good point that appears to be glossed over completely.With regard to the case, and the bit about giving police "elbow room" to act appropriately (??) in cases of emergency, my question is: "What emergency?"
The guy was in a hospital, separated from his wife and from his guns. If they felt that it was necessary to confiscate the guns, they had ample time and opportunity to find a judge, explain the situation to him, and get a warrant. THERE WAS NO "EMERGENCY." The exception should not apply.
I agree that the case hinges on the warrantless search and seizure, not the lie. And I don't mean to play down the importance of that. It's just that I think police officers lying is a pretty serious affront to common sense and common decency as well.
No, they didn't lie and say they had a warrant. They lied and said that Edward had given his consent -- which he had not.mehavey said:- Why did the wife consent to let the police into the house?
ANS: Because they lied and told her they had a warrant
They lied and said that Edward had given his consent
Can't read your link without joining -- which I'm not going to do to read one article.mehavey said:But it does get worse...
https://www.law.com/thelegalintellig...20210227150757
"Community Caretaking" could literally open the floodgates.
While the issue presented — whether the
“community caretaking” exception to the Fourth
Amendment’s warrant requirements is limited to
vehicles or is expanded to homes — may seem
reasonably discrete, it is not. On one level, this Court
will decide whether Americans will continue to have
meaningful Fourth Amendment protection in their
own home or sacrifice it on the altar of the modern
state. But on a grander level, the issue is how the
Fourth Amendment is to be understood and applied.
An originality approach would examine the text and
original public meaning of the Amendment. The First
Circuit ignored the text, never considered the
Amendment’s original public meaning, and made its
decision on what seemed “reasonable” to modern
judges based on balancing. For many reasons, the
First Circuit’s decision cannot be allowed to stand.
For a half century, the Fourth Amendment was largely understood
as a protection of privacy. However, in United States v. Jones, 565 U.S. 400 (2012),
and Florida v. Jardines, 569 U.S. 1 (2013), this Court re-established the original
basis of the Fourth Amendment as the protection of property. As Justice Scalia explained:
The text of the Fourth Amendment reflects its
close connection to property, since otherwise it
would have referred simply to “the right of the
people to be secure against unreasonable
searches and seizures”; the phrase “in their
persons, houses, papers, and effects” would
have been superfluous. [Jones at 405.]
Although Cady was decided four decades before
Jones, the Cady Court addressed the property principle. The Cady
Court justified the warrantless search in large part because the police had exercised a
significant degree of custody and control over Cady’s
automobile before it was searched. In evaluating the
search of the car, the Court identified “two factual
considerations [that] deserve emphasis,” the first of
which was:
the police had exercised a form of...
custody or control over the 1967 Thunderbird.
Respondent’s vehicle was disabled as a result
of the accident, and constituted a nuisance
along the highway. Respondent, being
intoxicated (and later comatose), could not
make arrangements to have the vehicle towed
and stored. At the direction of the police,
and for elemental reasons of safety, the
automobile was towed to a private garage....
[Cady at 442-43 (emphasis added).]
The Cady
Court stressed the distinction which the
court below crushed. “‘[F]or the purposes of the Fourth
Amendment there is a constitutional difference
between houses and cars.’” Cady at 439 (citations
omitted). And the Cady Court relied on that
distinction: