November 2, 2014

Second Circuit Finds Search Unconstitutional, Tosses Defense Verdict

A federal appellate court last week held that Connecticut police officers' warrantless entry into a private yard, where they shot and killed the owner's dog, could not be justified simply because the house was in a high-crime neighborhood. Holding that the trial court erred when it allowed the jury to consider the defense of exigency, the court threw out the jury's defense verdict, found that plaintiffs' rights were violated as a matter of law and remanded the case for a determination on damages.

It's plainly the right outcome as the officers' entry onto plaintiffs' property was entirely unjustified. What is interesting about the decision, however, is how reluctantly the court reached this decision. As it turns out, the tip that led the cops to the home, and which they claimed made their entry legal, was utterly baseless; a fact that surely influenced the final ruling, even though it shouldn't have. More to the point, the appellate court found that while the officers had to get a warrant first, there was probable cause for the entry. This ruling emphasizes just how washed out and worthless the PC standard has become, even though it found this particular entry unlawful.

The relevant facts of the case are pretty straightforward. One afternoon in Hartford, Connecticut, a police officer (not a defendant in the civil case) arrested a young man who was a known member of a violent neighborhood gang for possessing heroin. Facing a certain parole violation for the arrest, the gang member offered to trade info on where guns could be located in exchange for some kind of consideration. He then told the officer that two handguns were located under the seat of a car in a Nissan Maxima in the rear yard of plaintiffs' home, which was several blocks away. The man had never provided information before and his reliability was untested. The home was the residence of the two plaintiffs, a man and his 12 year-old daughter, as well as the man's girlfriend.

The officer contacted two other officers and told them about the tip. They headed immediately to the plaintiffs' home, a private residence entirely surrounded by a chain link fence. They did not discuss the situation with their supervising officer and gave no thought to seeking a warrant. Instead, they went to the house, exited their vehicle, and, with guns drawn, entered the yard and headed for the back of the house. Notably, neither officer saw any vehicles in the yard, and there was no Nissan Maxima anywhere on or near the property. As they made their way across their property, one officer, JohnMichael O'Hare, was confronted by one of the plaintffs' dogs. According to the 12 year-old plaintiff, who witnessed the next event, O'Hare shot the dog twice, then -- with the girl begging him to stop -- fired a third shot into the dog's head.

No guns were recovered and nobody was arrested.

On the eve of trial, the defendants asked to add the defense of exigent circumstances. In simple terms, this means that they were claiming that under the circumstances, the officers simply couldn't wait for a warrant to issue. Their basis for this claim? Their belief that the home was in a high-crime neighborhood, and that guns were moved frequently. It's a facially ridiculous argument that would eviscerate fourth amendment protections for pretty much everyone who lives in a neighborhood with any measure of street crime. It's long been clear that the exigency has to be fact specific -- examples including situations where the police are in hot pursuit of somebody who flees into a residence, or where there are cries for help from inside the home, and so forth -- and can't be some generalized claim that hurrying up would be easier than waiting for an hour or so while the warrant application is processed.

Despite the above, the district court granted the request and charged the jury on the elements of exigency, essentially telling the jury that they could excuse the officers for the entry into the back yard if the jury thought the police officers were operating under exigent circumstances. The jury, sympathetic to the defendants' testimony about the pressing need to get guns off the street, found for defendants. The point is not that the jury was wrong but that they shouldn't have been charged on exigency at all.

The Second Circuit Court of Appeals agreed and reversed the decision. Which takes me to the underlying tone of the decision, and two issues that were addressed peripherally. Yes, the Court made clear that there was no exigency, huzzah.

But as for the more interesting question of whether the officers had probable cause in the first place (meaning, could a warrant have issued under the facts testified to at trial), the Court strangely found yes, PC existed. That is a scary finding that reflects the Court's knee-jerk deference to law enforcement.

Let's look at the known facts: the police were receiving a tip from a young man who appeared to be the sort of person who might know where guns were stored. Facially, that weighs in favor of the police. He provided a specific address (plaintiffs' home) and location (under the front seat of a Maxima in plaintiffs' yard), which also suggests reliability. Finally, he was in custody and in desperate need of a break, so the police could be forgiven for assuming that the guy was being truthful (even though this desperation is precisely why the guy may well have been passing along double or triple hearsay or rumors of which he had no personal knowledge).

But, and this is a huge but, once the officers arrived, there was no evidence that the very car where the guns were supposedly located was on the scene. The court's decision makes clear that the officers did not see the car, and could easily have looked into the yard from the side street to see if it was behind the house, but made no effort to do so. Which means, there was no good faith basis to enter the yard; they already knew the very thing they were looking for was not there. Moreover, the undisputed evidence was that the plaintiffs' did not own a Maxima.

Under this set of facts, the only basis for believing that there was probable cause (evidence sufficient to lead a reasonable police officer to believe that it was more likely than not that handguns were in the location to be searched), was the statement of an untested informant whose primary factual statement, that there was a Maxima with guns in it on the property, had already been proven demonstrably false.

Yet, the Second Circuit found that PC existed, based on these above facts. For these plaintiffs, it is irrelevant, they won their case. But it's yet another sad moment for the constitution, as a panel of educated jurists, who surely understand what they are doing, took another bite out of the Fourth Amendment.

The decision follows:

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