Dan K's Inferno

Opinion: Slamming The Door On The Fourth Amendment

, The Connecticut Law Tribune

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Dan Krisch

I am wondering how much longer a man's home will remain his castle if the Supreme Court continues to chip away at its foundations. Sadly, two of the court's recent cases — involving the questionable arrest of a robbery suspect on unrelated charges to avoid having to obtain a search warrant for his apartment, and qualified immunity for a police officer who injured a homeowner while engaged in the possibly unlawful pursuit of a misdemeanor suspect — suggest that this bedrock constitutional principle is in danger of crumbling.

The sanctity of the American home against government intrusion is one of our oldest and most enduring common-law legacies. It was a familiar and settled precept by the time the elder William Pitt uttered it — during an 18th-century debate on searches incident to a cider tax — that "the poorest man may in his cottage bid defiance to all the forces of the Crown." And the Fourth Amendment lists our houses immediately after our persons as secure against unreasonable searches as a direct consequence of our Founding Fathers' faith in Pitt's view of the balance that permits liberty and order to co-exist.

They rarely co-exist peacefully, though. It is in the nature of order to want to circumscribe liberty and the nature of society, especially in times of strife or in response to fear, to crave order over liberty. And often the well-meaning souls charged with ensuring order seek to expand its reach — and thereby ease the Constitution out of the path between accusation and conviction.

Which brings us to Walter Fernandez, whose appeal in Fernandez v. California was argued before the court on Nov. 13. Fernandez was a suspect in a gang-related assault and robbery in Los Angeles. When LAPD officers who were investigating the crime saw Fernandez enter his apartment, they followed him and knocked on the door. A woman answered; she had a fresh wound on her face, blood on her hand and shirt and was holding an infant. The police officers asked Fernandez to step outside of the apartment, but he told them that they had "no right to come in here. I know my rights."

Unfortunately, Fernandez's defiance in defense of his cottage did not end as Pitt envisioned. The police arrested him for domestic violence — based solely on the injuries to the then-unknown woman who had answered their knock — and returned an hour later. Upon their return, and with Fernandez safely out of the way, the police obtained the consent of the woman (who turned out to be Fernandez's girlfriend) to search the apartment and discovered a shotgun, ammunition and a knife allegedly used in the robbery.

Consent, of course, is a well-settled exception to the Fourth Amendment's warrant requirement — well-settled and tempting because, as the prosecution argued in Fernandez's appeal, obtaining consent is "simpler, faster and less burdensome" than getting a warrant. This is well and good when the consent is given freely, but perilous when it is manufactured. The Fourth Amendment cannot endure consent by any means necessary and certainly not by the pretextual arrest of someone who refuses the police entry in order to facilitate consent from a co-occupant. It is too easy to imagine the slippery slope down which we will slide if the court endorses such gamesmanship by the police.

Alas, the court's per curiam decision earlier this month in another case out of California, Stanton v. Sims, suggests that the slide already has begun. Stanton, a police officer in La Mesa, responded to a call about an "unknown disturbance" and saw three men walking in the street in the area. One of the three ignored Stanton's order to stop (a misdemeanor) and hurried to a nearby home with a yard enclosed by a 6-foot high fence. When the man went through a gate in the fence, Stanton, who had no warrant to enter the property, kicked open the gate to pursue him — and the gate struck and injured the owner of the home, Drendolyn Sims, who had no connection to the suspect.

The court determined that Stanton was immune from suit by Sims because he was not "plainly incompetent" to believe that it was lawful to pursue the suspect onto Sims' property without a warrant. However, Stanton's belief satisfied this less-than-demanding standard only because lower courts are split on the question and the Supreme Court refused to "express any view on whether Officer Stanton's entry into Sims' yard . . . was constitutional." In other words, Stanton was not wrong on what the Constitution permits, but possibly only because the court chose to not say that he was!

Stanton is hardly a hallmark of courageous decision-making, although, to be fair, the court's own precedents and the procedural posture of the case likely left the court little alternative. But the court's unwillingness to settle a vital constitutional question bodes ill for the outcome of Fernandez and for the continued vitality of our formerly inviolable right to shut our front doors in the government's face.•

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