Legal Commentary

Nada. Gar nichts. Rien du tout. Bupkes.

By Orin Kerr

In his vigorous dissent from denial of rehearing en banc in United States v. Lemus, linked to by Eugene below, Judge Kozinski writes:

Government encroachment into the home, which I lamented three years ago in United States v. Black, 482 F.3d 1044, 1045?46 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), has continued, abetted by the creative collaborators of the courts. This is another example: The panel goes to considerable lengths to approve a fishing expedition by four police officers inside Lemus?s home after he was arrested just outside it. The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also 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.

I can think of several examples of this, though. Perhaps the most factually similar to Lemus is Washington v. Chrisman, 455 U. S. 1 (1982), decided by the ?creative collaborators? on the Supreme Court almost thirty years ago.

In Chrisman, the defendant was a college student arrested for underage drinking outside his dorm. After he was arrested, the student said he needed to go get his ID. The officer followed the defendant into his dorm room without his consent and then saw drugs across the room. The officer seized the drugs from the room under the plain view exception, and the defendant was then charged with drug possession.

In an opinion by Chief Justice Burger, the Court held that as a matter of course, the police can follow an arrested person into his residence without his consent and seize contraband discovered inside that is in plain view:

We hold . . . that it is not ?unreasonable? under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer?s need to ensure his own safety ? as well as the integrity of the arrest ? is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested. It follows that [the officer] properly accompanied [the defendant] into his room, and that his presence in the room was lawful.

This isn?t exactly the same as Lemus, but I think it?s pretty similar. Lemus was arrested right outside the home, and the officers conducted a Buie sweep of the immediate area that happened to include the entrance to the home, where the officers saw a gun. In both Chrisman and Lemus, the courts approved an entry into the home following arrest outside the home. In both cases, the courts ruled that no suspicion was required to enter the home in light of officer safety concerns. And in both cases, the courts then upheld the seizure of contraband observed in the home under the plain view exception.

Of course, Chrisman doesn?t mean that the panel was correct in Lemus. But I do think Kozinski?s over-the-top rhetoric in Lemus is a bit out of place given Supreme Court precedents like Chrisman.

Full post as published by The Volokh Conspiracy on February 19, 2010 (boomark / email).