RESEARCHER
5th Circuit gives police new power in searches
Mon Mar 29 14:43:27 2004
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March 27, 2004, 1:01PM
5th Circuit gives police new power in searches
Warrant unneeded in some instances
Associated Press
http://www.chron.com/cs/CDA/ssistory.mpl/nation/2470156

NEW ORLEANS -- A federal appeals court has opened the door for police in Texas and two other states to search residences and buildings for evidence without a warrant -- a ruling strongly criticized by two dissenting justices.

The 5th U.S. Circuit Court of Appeals ruled police do not need an arrest or search warrant to conduct a swift sweep of private property to ensure their safety.

Evidence found in that search is admissible if the search is a "cursory inspection" and if police entered for a legitimate purpose and believed it may be dangerous.

The 11-4 ruling affects Louisiana, Texas and Mississippi and replaces a standard set in 1994, when the 5th Circuit held that police can make a so-called protective sweep only if officers are there to arrest someone. In the majority opinion, Judge William Lockhart Garwood wrote that any in-home encounter poses a risk to police officers, even if it is simply to interview someone.

Houston Police Chief Harold Hurtt wasn't available for comment, department spokeswoman Sandra Aponte said.

The opinion noted that a similar standard has been adopted by four other federal circuit courts of appeals.

The American Civil Liberties Union called the decision dangerous.

"This decision is the latest rollback of safeguards to protect the people from being at the mercy of a police state," said Joe Cook, executive director of the ACLU of Louisiana. "Allowing law enforcement to search homes without probable cause or any warrant makes a dramatic and dangerous departure from one of our most fundamental American freedoms."

The decision came in the case of Kelly Donald Gould, a Denham Springs, La., man arrested in October 2000 on federal gun charges and accused of threatening to kill judges and police.

Deputies went to Gould's trailer with no warrant but were invited in by another resident, who told them Gould was in the bedroom.

Because of the threats and Gould's criminal history, the deputies said, they looked for him under the bed and in two closets, where they found three rifles. They later found Gould in the woods and seized the weapons after they got him to sign a permission for the search.

U.S. District Judge James Brady ruled the guns could not be evidence because they were obtained illegally. A three-judge panel of the 5th Circuit upheld that decision but told prosecutors to request a hearing before the court to reconsider the precedent on which it was based.

Dissenters said the ruling makes an exception to constitutional protections against unlawful search and seizure.

"I have no doubt that the deputy sheriffs believed they were acting reasonably and with good intentions," Judges Harold DeMoss Jr. and Carl E. Stewart wrote. "But the old adage warns us that `The road to hell is paved with good intentions.' "

U.S. Attorney David Dugas of Baton Rouge said the case illustrates the "difficult situations" officers often face.

"They're expected to make split-second decisions in potentially dangerous situations involving constitutional issues that the courts and legal scholars can spend years debating," Dugas said.

But Mike Walsh, a defense attorney, said the 5th Circuit decision "grossly expands" the definition of lawful searches and erodes constitutional rights.
==================================

THE FASCIST STATE CONTINUES
NOW THE HOUSE SEARCH AND SEIZURE OF PROPERTY WITHOUT A WARRANT
http://www.davidicke.com/icke/articles2/search&seizure.html

From: apfn@apfn.org (American Patriot Friends Network)

Senate approves police searches and seizures without warrants. Compiled by Dana Davis

The United States Congress is on the verge of passing a Republican sponsored bill that would eradicate the Fourth Amendment of the United States Constitution. Article IV of the Bill of Rights states,

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In addition, this bill extends its authority to impede upon the First Amendment Right of "Freedom of Speech."

The Methamphetamine Anti-Proliferation Act, "To provide for the punishment of methamphetamine laboratory operators, provide additional resources to combat methamphetamine production, trafficking, and abuse in the United States, and for other purposes," has already passed through the Senate and was being deliberated by the House of Representatives as of press time.

In effect, what the provision does is empower the Federal Government, State Government and local law enforcement agencies, to enter private property - homes, businesses, automobiles, etc. for any "criminal searches" without a warrant and without any legal obligation to inform the private property owner that a search and seizure was conducted until months later, if at all. If the bill becomes law, then it would grant the Federal Government power to obtain "intangible" evidence -- hard-drive data, photographs or copies made of any documents or family or personal belongings, diaries, etc. - without ever having to inform the owner that their property was searched.

If physical evidence was taken then the government could wait up to 90 days later, before having to notify the owner that a secret search of their property ever occurred.

David Kopel, director of research for the Independence Institute, a Colorado think tank focusing on Constitutional issues, said the bill was aimed especially at computer hard drives, which could be copied in an owner' absence and examined without the owner's knowledge.

The Senate's version of the bill (S. 486) was sponsored by Senator John Ashcroft (R-Missouri). The House Bill (H.R. 2987) was sponsored by U.S. Representative Chris Cannon (R-Utah).

It's primary initiative is to increase criminal penalties for the sale, production and distribution of methamphetamines, appropriate funds to crack down on "meth labs" where the drug is processed, and fund methamphetamine treatment programs. However, tucked away deep inside the legal jargon of the bill are two provisions which go far beyond the realm of methamphetamine anti-proliferation or even the war on drugs. One measure pertains to police search and seizure, while the other attempts to dictate Internet communication.

Under present law, a property owner must be notified immediately of any possession seized in a criminal search, but the "Notice and Clarification" section of the methamphetamine bill (S. section 301, H.R. section 6) amends U.S. Code by stating, "Section 3103a of title 18, United States Code, is amended by adding at the end the following new sentence: `With respect to any issuance under this section or any other provision of law (including section 3117 and any rule), any notice required, or that may be required, to be given may be delayed pursuant to the standards, terms, and conditions set forth in section 2705, unless otherwise expressly provided by statute.'

A source within the Senate Judiciary committee, speaking on condition of anonymity, admitted that the language in the search and seizure provision "slipped by everybody" in the Senate.

"(Hatch and the Justice Department) buried it deep in the bill, and nobody noticed until the thing had already passed."

"The Secret Searches measure is so outrageous that it would have no chance of being enacted as a bill on its own, when subjected to public scrutiny and debate," Kopel asserted. "So instead, the DOJ has nestled the Secret Search item deep inside a long bill dealing with methamphetamines."

Jeanne Lapatto, spokesperson for the Senate Judiciary Committee and its chairman, Senator Orrin Hatch (R-Utah), said she was unaware of the specific provisions in question, but defended the goals of the bill. "This is a bipartisan bill," Lapatto said. "During hearings, no one had any problems with the overall goal of the bill, which is curbing the horrible problem of methamphetamines."

Another approach the bill takes to "curbing" methamphetamine usage is by making it a crime to create a hypertext link on the Internet to any site that "directly or indirectly advertises" drug paraphernalia, or distributes information about the processing or purchase of drugs (S. section 203, H.R. section 3). Under the provisions of the act, an Internet service provider, who is notified by a district attorney or representative of the Drug Enforcement Agency, that one of their hosted sites is in violation, would be required to remove the site within 48 hours or face federal criminal penalties.

On top of that, another provision of the bill would make it punishable by up to ten years in prison, "To teach or demonstrate. or to distribute by any means of information pertaining to, in whole or in part, the manufacture of a controlled substance."

U.S. Representative Bob Barr (R-Georgia), member of the House Judiciary Committee, is leading the fight against this bill in the House. Barr asserts that the search and seizure provisions of the bill, "Have nothing to do with methamphetamines," and he believes that had the search and seizure provision been introduced as a separate bill, its chances for passage, "Would be very, very problematic."

"These are not minor changes," Barr added. "These are substantive and far-reaching changes to the criminal law on search and seizure. It's unconscionable that someone would try to sneak these provisions into an unrelated bill."

A spokesperson for the Justice Department, which supports the provisions, declined to comment directly, but did release a recent letter from Assistant Attorney General Robert Ruben to House Judiciary Committee Chairman Henry Hyde (R-Illinois).

In his letter, Ruben praised the bill for providing, "Important and necessary tools for deterring the spread of methamphetamine manufacturing and abuse in our nation."

Speaking on behalf of House sponsor, Rep. Chris Cannon (R-Utah), legislative director Chris MacKay said the no-notice provision was necessary for, "Police to perform their job effectively."

According to MacKay, the provision was designed to allow police to search with minimum risk to their safety and without suspects destroying evidence before they arrive, adding, "Anything we can do to win the war on drugs is worth doing."

Tribune Combined Report, using with permission, amongst other sources, information compiled and written by Justin Torres of CNSNews.com and David Kopel of the Independence Institute.

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