When a judge called for United States v. Lemus to be reheard en banc, the majority of judges in the Ninth Circuit Court of Appeals did not vote to rehear the case. Chief Judge Alex Kozinski wrote an absolutely blistering dissent to that denial. With Judge Paez joining in the dissent, he wrote:
This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun “in plain view”—stuck between two cushions of the living room couch—and we reward them by upholding the search.
Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith? The place where the “government bears a heavy burden of demonstrating that exceptional circumstances justif[y] departure from the warrant requirement.” United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985). The place where warrantless searches are deemed “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980).
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.
Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.
Read the rest of his dissenting opinion here.