Court Opens Door To Searches Without Warrants

[Epitome22]

NEW ORLEANS -- It's a groundbreaking court decision that legal experts say will affect everyone: Police officers in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.

Leaders in law enforcement say it will keep officers safe, but others argue it's a privilege that could be abused.

The decision in United States v. Kelly Gould, No. 0230629cr0, was made March 24 by the New Orleans-based 5th Circuit Court of Appeals.

The ruling stems from a lawsuit filed in Denham Springs in 2000, in which defendant Gould filed a motion to suppress information gleaned from a search of his home. The motion was granted by district court, and the government appealed this decision. The March 24 ruling by the 5th Circuit is an affirmation of that appeal.

In the case, the Livingston Parish Sheriff's Office was contacted on Oct. 17, 2000, by a Gould employee who told officers that Gould intended to kill two judges and unidentified police officers and to destroy telephone company transformers. The LPSO informed the East Baton Rouge Parish Sheriff's Office of the threats.

A search of Gould's criminal history revealed several arrests and that he was "a convicted felon for violent charges," according to the Facts and Proceedings section of the 5th Circuit ruling.

When officers went to question Gould, they were told he was asleep. The officers asked if they could look inside for Gould, and were allowed to enter.

The officers testified that that they believed a search of the home was necessary to ensure their safety, given the allegations by Gould's employee and Gould's criminal history, according to the Facts and Proceedings section of the 5th Circuit ruling.

Gould's bedroom door was ajar, and officers testified they peered inside and saw no one. Thinking Gould could be hiding, the officers looked in three closets. In one of the closets, the officers found three firearms, according to the Facts and Proceedings section of the 5th Circuit ruling.

Gould was found hiding outside the home a few minutes later. He was taken into custody and questioned about the guns. The officers asked for and received Gould's consent to search the home, with Gould signing a waiver of search warrant. Gould subsequently was arrested for allegedly being a felon in possession of firearms.

One judge, Judge Grady Jolly, said he concurred in part and dissented in part with the majority opinion. Judge Jerry Smith, however, completely disagreed with the majority ruling, saying: "I have no doubt that the deputy sheriffs believed that they were acting reasonably and with good intentions. But the old adage warns us that 'the road to hell is paved with good intentions.'"

New Orleans Police Department spokesman Capt. Marlon Defillo said the new search power, which is effective immediately, will be used judiciously.

"We have to have a legitimate problem to be there in the first place, and if we don't, we can't conduct the search," Defillo said.

But former U.S. Attorney Julian Murray said the ruling is problematic.

"I think it goes way too far," Murray said, noting that the searches can be performed if an officer fears for his safety.

Defillo said he doesn't envision any problems in New Orleans.

"There are checks and balances to make sure the criminal justice system works in an effective manner," Defillo said.

[Max Power]

That has to be the scariest thing I've read in years.

[Mavdog]

Very troubling decision, but remember this point:
"The officers asked if they could look inside for Gould, and were allowed to enter."

[Max Power]

Originally posted by: Mavdog
Very troubling decision, but remember this point:
"The officers asked if they could look inside for Gould, and were allowed to enter."

Who told them they could come in? I've read the story from about 20 angles and nobody has addressed that question. It makes a big difference to me if it was his wife versus a 5 year old child.

[Mavdog]

Good question. Here's what i found in the appeal:

"They [police] knocked on the front door of the trailer home where he lived, which was answered by Dennis Cabral who also lived in the trailer home... The officers asked to speak to Gould, and Cabral told them he was probably asleep. The officers asked if they could look inside for the defendant, and Cabral agreed, pointing in the direction of Gould’s bedroom."

They looked in the bedroom, didn't see him, thought the closets could be hiding places and looked in there. They saw the 3 guns, left them and kept looking for Gould, fiinding him outside. After which:

"The officers asked for and received Gould’s consent to search the home, and he signed a written waiver of search warrant."

Appeal

[kg_veteran]

NEW ORLEANS -- It's a groundbreaking court decision that legal experts say will affect everyone: Police officers in Louisiana no longer need a search or arrest warrant to conduct a brief search of your home or business.

The legal experts need to read a little bit more closely, and whoever wrote this article needs to get their facts straight. This decision affirms the trial court's ruling that the evidence was inadmissible because it was obtained illegally. That's why the evidence was suppressed.

[Max Power]

Originally posted by: Mavdog
Good question. Here's what i found in the appeal:

"They [police] knocked on the front door of the trailer home where he lived, which was answered by Dennis Cabral who also lived in the trailer home... The officers asked to speak to Gould, and Cabral told them he was probably asleep. The officers asked if they could look inside for the defendant, and Cabral agreed, pointing in the direction of Gould’s bedroom."

They looked in the bedroom, didn't see him, thought the closets could be hiding places and looked in there. They saw the 3 guns, left them and kept looking for Gould, fiinding him outside. After which:

"The officers asked for and received Gould’s consent to search the home, and he signed a written waiver of search warrant."

Appeal

I feel a LOT better now.

I wonder why Gould gave his consent though? He had to know that the guns would be found and that would be a violation of his parole.

[kg_veteran]

Gould didn't give consent. His roommate (or trailermate) did.

[Drbio]

He should pick his roomies better next time.......in about 20 to life. [img]i/expressions/face-icon-small-wink.gif[/img]

[Max Power]

Originally posted by: kg_veteran
Gould didn't give consent. His roommate (or trailermate) did.

"Gould was found hiding outside the home a few minutes later. He was taken into custody and questioned about the guns. The officers asked for and received Gould's consent to search the home, with Gould signing a waiver of search warrant. Gould subsequently was arrested for allegedly being a felon in possession of firearms."

[kg_veteran]

I apologize, I misread what you were talking about. His roommate gave the consent to enter in the first place.

The reason the consent he gave when found hiding in the woods didn't matter is that the illegal search had already been conducted. Thus, they couldn't "undo" the illegality by obtaining his consent. It's the old "fruit of the poisonous tree" doctrine.

[Dooby]

I've lost track. Is this the 14,238th or the 14,239th time the 4th Amendment has been declared dead?

[kg_veteran]

14,239.

[Mavdog]

The opinion actually states that the Government erred in their points in arguing the appeal:

"It might be arguable that the officers made a "good faith mistake"of fact in believing that Cabral, acting with either actual or apparent authority, had given them valid consent to search Gould's bedroom. However, the Government does not assert this argument on appeal and this court will not consider nonjurisdictional issues not raised on appeal"

Seems that if the Government arguments had been framed differently the court would have overturned the prior judgement, no? Then the evidence found would have been admisable, yes?

[kg_veteran]

There's no doubt from reading the opinion that the panel hearing the case wanted to reverse the trial court's ruling, but it couldn't because precedent in the 5th Circuit (set by another panel in the circuit) wouldn't allow it. That's why there's language in there where the author of the opinion bitches that all members of the panel should have been consulted before the prior panel issued an opinion which conflicted with that of another circuit (in this case, I think it was the 6th Circuit).

The specific quote you're referencing simply brings up an argument the prosecution could have (but didn't) raised. Because the Court didn't know whether the facts would support that argument or not, they really couldn't say how they would have ruled.