Law Enforcement And The Ongoing Inconvenience Of The Fourth Amendment

from the Bill-of-Suggestions,-apparently dept

The Fourth Amendment somehow still survives, despite the government’s best efforts to dismantle it… or at the very least, ignore it.

Law enforcement agencies seemingly have never met a warrant they didn’t like. They’ll do everything they can to avoid getting one, even though the process appears to be little more than [INSERT PROBABLE CAUSE] [OBTAIN WARRANT].

New Jersey was one of the last states to pay lip service to the warrant requirement for vehicle searches, but recently overturned that because it seemed to be too much of an inconvenience for officers (and drivers [but really just officers]). The court noted that the telephonic warrant system no one had bothered using didn’t seem to be working very well, and so the warrant requirement had to go.

Everywhere else, there’s any number of ways law enforcement officers can avoid seeking warrants. Exigent circumstances, bumbling ineptitude/warrant-dodging d/b/a “good faith,” the Third Party Doctrine, coming anywhere near a national border, dogs that always smell drugs, the superhuman crime-sensing skills of patrolmen, etc.

Even when an incident lends itself to the successful acquisition of a warrant, law enforcement still seeks ways to avoid taking this step. Here are two such incidents — both called out by judges — in which warrants could have been easily obtained, but simply weren’t.


Captain Greg Workman of the Elizabethton Police Department (“EPD”) testified that on August 14, 2012, he received a dispatch at 1:47 a.m. to a single-car accident on Milligan Highway. He arrived at the scene within five minutes of the dispatch and found a white BMW “intertwined with a metal pole in the Milligan Grocery parking lot” and an individual, later determined to be the Defendant, lying outside of the driver?s side door. Captain Workman observed another individual in the passenger seat of the car and attempted to make contact with the Defendant to determine the number of occupants in the car and their identities. The Defendant appeared to have an open fracture to his left leg and was “obviously in pain” and “confused.” He was unable to recall the number of occupants in the car or the identity of the individual in the passenger seat. While assessing the scene, Captain Workman smelled an “odor of alcohol, but could[ not] determine whether or not it was coming from [the Defendant] or from the vehicle.”

Because of his injuries, the Defendant was soon transported by ambulance to the Johnson City Medical Center (“JCMC”). Captain Workman testified that he “knew it was a possibility” that the Defendant was under the influence of alcohol at the time of the accident, and based on the totality of the circumstances, he believed that “exigent circumstances existed and [the police] needed to draw blood as soon as [the Defendant] got to the hospital.” He explained, “[There was] a high impact collision to a fixed structure[,] . . . [and the Defendant] was lying in the roadway with an open fracture to his leg. We [were] concerned not only about the injuries that we observed externally, but [also] the internal injuries that he could have[.]” He directed an officer to follow the ambulance and obtain a blood sample from the Defendant.

So, a person with a broken leg on his way to being confined to a hospital bed needed to be tested for his blood alcohol content. The officer claimed “exigent circumstances” prevented him from seeking a warrant. But exigent circumstances hardly describe an immobile, hospitalized person. And the officer freely admitted he had plenty of warrant acquisition options.

On cross-examination, Captain Workman testified that he observed the Defendant for approximately 45 seconds to one minute while on the scene. He also stated that he had investigated three mandatory blood draw cases and had never sought a search warrant to draw the suspect?s blood. He agreed, however, that he had drafted approximately 40 search warrants in his career and had taken 20 to 25 search warrants to a nearby judge?s house “at all hours of the night.” He further agreed that two judges lived within a few miles of the accident scene and were willing to receive officers at any hour of the night to sign search warrants. He acknowledged that the EPD has search warrant templates and that search warrants can be drafted based on knowledge received from other officers. He also acknowledged that the officers on the scene had cell phones and radios but stated that there were no officers on duty at the police station at the time of the accident. He conceded that four of the 11 officers that responded to the scene had experience drafting search warrants.

A suspect in a hospital bed… eleven cops on the scene… and two judges a few miles away. And yet, no warrant was sought. When the court punched holes in the “exigent circumstances” excuse, the police tried to use the state’s “implied consent” statute. (Basically, by operating a motor vehicle, you consent to blood draws and other sobriety tests.) But the court pointed out that the officers predicated their actions on “exigent circumstances” and they can’t have it both ways.

Despite these [implied consent] arguments on appeal, the State conceded at the suppression hearing that this case involved a “non-consensual blood draw” and relied solely on exigent circumstances to justify the search… Accordingly, we conclude that the State has waived our consideration of this issue and decline to address it.

Conviction reversed, evidence suppressed and remanded to the lower court for a retrial. All for the lack of warrant any of the eleven responding officers could have sought during the time the driver was en route to the hospital.


Police engaged in a long standoff with a suicidal subject whose only alleged crime was to fire a gun into the woods which he thought were unoccupied. Every window in the house was broken by tear gas canisters, and he didn’t come out. The police threw in a throw phone to communicate with him, but he wouldn’t pick it up. Finally, he was killed by a police sniper to prevent him from committing suicide.

The standoff lasted twelve hours. In the early morning hours, the tactical team thought it might need a few things, but a warrant wasn’t one of them.

The Team maintained the siege of the house all night without seeking a warrant. They did request and receive coffee, granola bars, and hot chocolate. Fewins later indicated that he never considered asking for a warrant because he believed it was unnecessary. Asked to explain why he would not need a warrant to arrest Carlson in his home, Fewins referred to his earlier speculation that the shot into the woods might have constituted “reckless discharge of a weapon”—a misdemeanor.

The Sheriff’s Department claimed exigent circumstances excused it from seeking a warrant. While the lower court bought the argument, the appeals court found this much harder to believe.

Thus, the district court believed that exigent circumstances existed at 9:00 p.m. when the tactical response team began surrounding Carlson in his house and continued unabated for more than twelve hours until the sniper killed him there the next morning.

Exigent circumstances, the judge points out, are linked to time and danger. The longer a situation lasts, the less likely it is that the circumstances are still “exigent.” A standoff might seem like a tense situation, but when the suspect has done nothing threatening for several hours in a row, it’s pretty tough to claim the danger hasn’t dissipated past the point of exigency.

Viewing the totality of the circumstances from the perspective of a reasonable officer at the time of the first tear gas barrage, Carlson was thought to be (and actually was) alone in the house. His neighbors were safely out of Carlson’s reach (though not, as it turns out, entirely safe from the tear gas). The Team had Carlson contained with snipers and other officers carefully monitoring his floodlit house. Even after Carlson stopped responding to their negotiator, they had family members near at hand with open lines of communication. They had time to call a convenience store for refreshments; they had time to call a judicial officer.

Not exactly the most exigent of circumstances. The court goes on to call out the Sheriff for his inability to understand a warrant’s purpose under the guidance of the Fourth Amendment.

The choice to call for granola bars but not a warrant appears to have been driven by the Sheriff’s misunderstanding of the Fourth Amendment. “[I]nconvenience to the officers and some slight delay . . . are never very convincing reasons . . . to bypass the constitutional [warrant] requirement.” Fewins’s approach—choosing not to even request a warrant because he thought a misdemeanor arrest warrant would not have been “handy” or “put [the Team] in a better bargaining spot”—misses the point entirely. Judicial warrants are not intended to blindly facilitate whatever course of action a sheriff prefers. They are required by the Fourth Amendment “so that an objective mind might weigh the need to invade th[e] privacy [of the home] in order to enforce the law.” The Fourth Amendment thus protects people from the power of the state by requiring judicial preapproval, time permitting, of intrusive or forceful entrances and seizures.

Instead of giving a sheriff the discretion to decide whether to seek a warrant from a neutral judicial officer based on how helpful the warrant would be to the sheriff, “[t]he point of the Fourth Amendment” is to vest the discretion to approve or deny an officer’s plan to seize a person or search a house in a “neutral and detached magistrate.” Id. The warrant requirement is relaxed when an emergency situation makes it unreasonable to delay long enough to seek one, not when—as Fewins suggests here—a warrant simply would not have been particularly useful in the field. The facts available at summary judgment raise an inference that the Team had the time—and thus the constitutional obligation—to get a warrant from a judge before entering Carlson’s house with tear gas and surveillance equipment.

Summary judgment in favor of the law enforcement agency reversed and remanded to the lower court for a trial.

A warrant is an insurmountable inconvenience, it seems, even when everything about the situation suggests it isn’t.

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Comments on “Law Enforcement And The Ongoing Inconvenience Of The Fourth Amendment”

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Anonymous Coward says:

Re: Re:

Well, I guess the police sniper, who had already killed others, was preventing the eternal damnation of the victim’s soul.

Other than that, it’s pretty obvious that the original commentary is pretty slanted. From the LEO’s perspective, they had surrounded an individual who had discharged a firearm and was then unwilling to communicate — meaning that they were an unknown threat.

But by the end of 12 hours, I think they had a pretty good idea that he was suicidal, and would only fire a gun if his attempts to kill himself were blocked (at best).

tqk (profile) says:

Re: Re: Re:

Other than that, it’s pretty obvious that the original commentary is pretty slanted.

No it’s not. Read again the two courts’ opinions on the matters. I thought the original commentary was pretty deadpan, as in “Nothing novel to see here. Happens all the time. Move along.” Where I live (Canada; no 4th Amendment), it’s estimated it takes five minutes to get a warrant, and that’s too burdensome for the police. They want that odious requirement eliminated.

Chris Brand says:

Re: What ?

Hmmm. That is a quote from that blog, but it’s not what the actual opinion says:
“Carlson […] was threatening suicide while alone in his house” and “When Carlson finally reacted, hours later, he began shouting and threatening officers in his yard. A sniper, who believed Carlson was preparing to shoot one of those officers, shot through a window, killing Carlson.”

That One Guy (profile) says:

'Optional' laws

Fewins’s approach—choosing not to even request a warrant because he thought a misdemeanor arrest warrant would not have been “handy” or “put [the Team] in a better bargaining spot”—misses the point entirely. Judicial warrants are not intended to blindly facilitate whatever course of action a sheriff prefers.

That right there seems to sum up the mindset not only of the police, but a good number of government agencies. To them, following the law is purely optional(though only for them of course), and is a step that can be skipped if they decide that it would be too inconvenient to comply. As far as they’re concerned, the various laws are solely for police and government benefit, and can be ignored or brushed aside at whim.

When those theoretically in charge of enforcing laws have no respect whatsoever for them, you know there’s going to be problems.

Anonymous Coward says:

Re: Huh?

No, you’re not alone. It’s fucking bizarro-land down south these days, damn. Just a target practice in the mind of the sniper…why in the fuck was there a sniper?

Somehow I don’t see the situation going this way in Canada. They would have easily entered the place and threw in concussion grenades + smoke grenades if he had a powerful handgun/automatic weapon but was alone, then while he would have been lying down on the floor from the concussion grenades, they would have handcuffed him and that would have been the end of it.

I’m kinda glad cops here need to take 3 years of college (which includes Calculus 1, and all the mandatory classes everyone has to take to get your diploma in my province, which means 3 phys ed classes with a very varied choice focusing on just one sport/activity, philosophy I-II-III, french I-II-III-IV, english I-II and 2 classes that have nothing to do with what you’re taking currently as your program, I was doing chemistry so I had Interaction and Communication and History of Western Civilization from 1564 and on.

And after whatever cop classes they take in those 3 years + all that, they then step into academy, which they can fail, where they become these overly policized security agents with cars with flashy lights. I wonder if there’s a security agent that doesn’t work for Garda and such companies these days. Oh yeah, once I went to that supermarket I never go to in my town because the owner is a very well known dick, and there was this guy as tall as me, but in better shape, with an all-black suit saying SECURITY in the back walking with his shoulders exaggeratedly broadened…I’m glad I never go there often, what the hell.

So yeah, not everybody who’s slightly athletic can become a cop or a security guard, actually security guards are the worst since they’re usually bitter about failing the Academy and now we see them everywhere, last time I went to the hospital to get some blood tests done, I saw more security agents than actual nurses and doctors walking around. It used to be janitors that took care of security too.

Overkill, but I’ll take our kind of overkill, even if that bothers me.

Davre says:


– Freedom and liberty is in the context of freedom and liberty from government.
– the constitution is the supreme law of the land and no law can supercede or circumvent the constitution.
– the bill of rights (first 10 amendments to the constitution), are the fundamental rights of the people! They are law! Anyone, state or city that does not obey these rights, is breaking the law!
– the tenth amendment says all power not specifically defined in the constitution as belonging to the feds, belong to the states or the people. Most power belongs to the states, and the people! The feds just borrow it, illegally!

It’s obvious that the U.S. Government at all levels no longer respect the supreme law of the land, or obey the supreme law of the land! That makes them the law breakers! It also makes them traitors, because they all swear an oath to uphold (follow the law), and defend the supreme law of the land!

If a cop does anything against the law, ask him “are you an oath breaker?”

If a cop asks “what! Are you a constitutionalist or something?” Respond with “what! Are you an oath breaker!”

GEMont (profile) says:

Re: Fools

“… the constitution is the supreme law of the land and no law can supercede or circumvent the constitution.

You probably missed it, but, well, you see, after 9/11, the federal government gave themselves the “right” to rewrite the constitution, according to their new needs, due to 9/11.

They didn’t actually tell anyone what parts of the Constitution they changed, or what the new definitions actually mean because, well, you see, druggies and terrorists and infringers and hackers are all American Citizens and, well, since the federal government is waging a war on those folks, the feds have to keep the new interpretation of the constitution secret, lest the information fall into the hands of the enemy.

So while the constitution may indeed be the supreme law of the land, it might behoove you to learn exactly what the government’s new definition of the words therein mean, before you go around screaming about how its sacred and all that.

For all you know, the new Constitution – and thus the law of the land – may now contain words to the effect that anyone

– who posts using a dash
– at the left border of the screen
– to delineate a “point”
– more than once per post
– can be shot on sight
– by any duly authorized LEO.

Arizona says:


The US CONSTITUTION,is based on the ten commandments,The LORD says your government is ROTTEN to the core,Top to bottom,inside and out,SO is it surprising they want to ignore the rights and freedom,earned in many wars and the fights, spilling of blood the framers of this country sacrificed to give ALL americans,THEIR FREE WILL TO MAKE AMERICA THE GREAT COUNTRY IT USED TO BE,and now is going down to satans WOLF PACK,the police gangs..every EVIL happening in america,can be laided at their feet,I would advise you all,GO BUY THE BEST battle rifle you can afford,YOUR going to be glad you did………

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