Some excerpts from his dissenting opinion.
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).
In reference to Buie.
The panel approves the entry of a team of police into
Lemus’s home by relying on Maryland v. Buie, 494 U.S. 325
(1990), but Buie is nowhere on point. Buie was a case where
the police were already legitimately inside the home when
they arrested the suspect. Id. at 328. The question was
whether they could look in the area immediately adjoining the
arrest where someone who could ambush them might be hiding.
Id. at 328, 330, 333. The Court recognized that police
inside an arrestee’s home are peculiarly vulnerable because
they are on the suspect’s turf—a place where someone dangerous
might be hiding. Id. at 333-36. The risk is present in
every case because a suspect’s home is inherently dangerous
for police who must enter to make an arrest. Id. But Buie says
nothing at all about police who conduct an arrest outside of
the home. It does not authorize police to enter a home for the
very purpose of conducting a search. That is the situation we
have here.
More relating to Buie.
The panel says the police could enter the home—with no
suspicion whatsoever—because Lemus’s living room “immediately adjoined” the place surrounding the arrest, Lemus, 582
F.3d at 964, but Buie only authorizes a suspicionless search
when the police make an “in-home arrest” (and then only for
a small area near the arrest, not a grand tour of the entire
apartment). 494 U.S. at 333-36. Here there was no in-home
arrest. How do we know this? Because the opinion says so:
After making the arrest, Longoria “sent” the patrol officers
“in” to Lemus’s apartment. Lemus, 582 F.3d at 960. Officers
who are already inside an apartment don’t need to be sent in.
The entire justification Buie gives for a warrantless search
is that officers must be able to protect themselves when they
perform an “in-home arrest.” Buie, 494 U.S. at 333-34 & n.1
When an arrest doesn’t take the police into a suspect’s home,
they aren’t forced into the “confined setting of unknown configuration”
that Buie worries about. Id. at 333. They’re outside,
just the same as in an “on-the-street or roadside
investigatory encounter.” Id. Yet “[e]ven in high crime areas,
where the possibility that any given individual is armed is significant,”
the Court still requires “reasonable, individualized
suspicion” before police can perform a search. Id. at 334 n.2.
Chimel is referenced here.
But what his
testimony makes clear is that the officers were not required
to go inside Lemus’s home to arrest him; they chose to go
inside, unnecessarily exposing themselves to the very danger
the Supreme Court sought to ameliorate in Buie. The district
court’s findings and Longoria’s affidavit confirm this. [ER
10-11, 14, 60]
Warrantless searches have “always been considered to be
a strictly limited right . . . grow[ing] out of the inherent necessities
of [certain] situation[s].” Chimel v. California, 395 U.S.
752, 759 (1969) (internal quotation marks omitted). The
“scope” of a warrantless search “must therefore be strictly
defined in terms of the justifying ‘exigent circumstances.’ ”
Coolidge v. New Hampshire, 403 U.S. 443, 478 (1971). The
Buie exception is particularly toxic to Fourth Amendment values
because it permits a search with zero individualized
suspicion—with nothing at all but the presumption that the
UNITED STATES v. LEMUS 2533
home is a dangerous place for the police. This is a fair presumption
if the police are already inside the home and
exposed to danger. But to use the exception as a wedge for
entering the home turns Buie inside out.
Or if you’d like you can read the whole thing here: http://www.ca9.uscourts.gov/datastore/opinions/2010/02/18/08-50403.pdf
