Court To Law Enforcement: You Can't Seize A House For 15 Hours Before Obtaining A Warrant

from the because-reasons...-a-lot-of-them dept

When you violate the Fourth Amendment so hard it practically becomes the Third Amendment. (via FourthAmendment.com)

Local law enforcement seized Defendant’s home around 7:00 a.m. Defendant spent the next two and a half hours at the police station speaking with Investigator Cooke and others. About 9:30 a.m., Defendant signed a limited consent to search form outside his home authorizing Investigator Cooke to enter the home and retrieve Candice’s medication. Cooke completed his search of Defendant’s home around 10:00 a.m. By 11:30 a.m. Cooke possessed sufficient knowledge to procure a search warrant. He knew Defendant was a convicted felon and had ammunition in his bedroom closet. Cooke did not seek a search warrant, however, until the early evening hours. The only event of sufficient note during the period between the establishment of probable cause that morning and the process of procuring a search warrant that evening was Candice’s autopsy which began at 1:30 p.m. and concluded around 3:30 p.m. A federal magistrate judge issued the warrant at 10:00 p.m. Three federal agents together with Investigator Cooke and another officer executed the warrant beginning at 11:18 p.m. or twelve hours after probable cause arose. Their search concluded at 1:20 a.m.

The Third Amendment says you can't be forced to quarter troops in your house. What about around your house? Here agents of the government took over a man's residence for over 18 hours -- 15 of them without a warrant -- refusing to even allow him to enter his own home for accompanied bathroom breaks.

The timeline above, taken from the 10th Circuit Court of Appeals decision [PDF], followed the discovery of the defendant's wife dead in his home around 5:00 a.m. The defendant, Walter Shrum, was the one who discovered her and it was he who called law enforcement. Three hours later, after being forbidden to enter his home, Shrum signed a limited consent form allowing a Sheriff's Office investigator to enter the home to retrieve his wife's medication prior to an autopsy. The investigator saw a bullet in a closet. Later, the same investigator recalled Schrum was a convicted felon.

It was still several hours before a warrant was secured. During that entire time, Shrum's house was controlled by law enforcement. They may not have been inside, but they prevented the house's owner from re-entering his own residence. He was "interviewed" for three hours by the investigator, who may not have actually gotten consent from Shrum to sign a search consent form. This footnote suggests a request for legal representation by Shrum may have been ignored.

At the suppression hearing, Investigator Cooke testified that after Defendant mentioned he wanted an attorney to review the consent form, Defendant “in what was a joking manner to me initially was, quote, ‘Shit, I’m just kidding,’ and we moved on.” Defendant’s reported statement is inaudible on the interview tape.

The court notes there's no question the Sheriff's department seized Shrum's home. This immediately implicated Shrum's Fourth Amendment rights. Denying him access to his own house for over 18 hours seals the deal, no matter how the government tries to portray it.

We see little difference between a perimeter stakeout and internal securing of a home from the standpoint of a Fourth Amendment seizure. Both interfere to the same extent with the possessory interests of those entitled to occupy the dwelling. The Government cannot reasonably dispute that the “securing” of Defendant’s home during the early morning hours of March 11, 2015 infringed not only on his possessory interest in the home but also on his liberty interest in free movement. The police deprived Defendant of his ability to access his home for his own purposes, in his own way, on his own time, and at a location where concerned friends and well-wishers would surely come calling.

"A man's house is his castle," as multiple court decisions have paraphrased, including ones issued by the Supreme Court. Once this illegal seizure commenced, it tainted everything that came after it, including the supposed "consent" of Shrum.

While the court agrees it is sometimes reasonable to very temporarily secure a suspected crime scene, the 15-hour delay between the home's seizure and the issuance of a search warrant is anything but. And the court drives a significant nail into the government's argumentative coffin: the warrant exception so many law enforcement officers believe exists doesn't actually exist.

[T]he Government has never suggested that probable cause (or any form of articulable suspicion for that matter) justified the initial seizure of Defendant’s home. And we have news for the Government. No such thing as a “crime scene exception,” let alone an “unexplained death scene exception,” to the Fourth Amendment exists.

When the initial seizure is bad, the search is bad, even if limited consent was obtained. As the court points out, without Shrum being denied access to his home, there would be no reason for the investigator to enter to retrieve the medication needed for the autopsy. And if the investigator never enters the home, the bullet is never seen and the search warrant isn't obtained and executed, producing even more evidence of criminal activity.

And the investigator himself steered Shrum towards compliance, leaning on him heavily when it appeared he wouldn't let law enforcement into the house he was forbidden from entering.

By all appearances, Investigator Cooke consciously designed the circumstances under which Defendant provided his consent to convince him that he had no choice but to accede to the investigator’s wishes. When a police officer claims authority to seize your home because your wife died unexpectedly, and tells you the coroner needs medication from the home to perform an autopsy but you cannot go inside the home to retrieve the medication, what choice do you have? Must you allow law enforcement to seize your home indefinitely? Defendant’s lack of choice once again is well illustrated by his statement to Investigator Cooke, “I know you have to,” and Cooke’s subsequent reminder, “I’ll just tell you I can’t let you go in the house, but if you’ll tell me where the stuff is.” Nothing between the time of law enforcement’s illegal seizure of Defendant’s home and Investigator Cooke’s search of the home broke the causal chain. Because Defendant’s consent was tainted, Cooke’s search pursuant to that consent also was tainted.

The taint travels down the line to the late-arriving warrant, resulting in the suppression of every bit of evidence the government used to convict Shrum. The government simply can't do what it did -- turn someone's house into occupied territory for several hours without probable cause  -- and expect its evidence to survive.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Killercool (profile), 21 Nov 2018 @ 3:42pm

    It makes my head hurt...

    It very close to literally pains me that my first reaction to this judgement on an obvious abuse of power was being happy.

    Like, happy that it was different this time. Happy that at least one judge didn't see the color of an involved uniform and rubber-stamp anything they touched, like the judge who issued the warrant did.

    It should be business as usual, not a delightful surprise.

    reply to this | link to this | view in chronology ]

    • icon
      stderric (profile), 21 Nov 2018 @ 5:07pm

      Re: It makes my head hurt...

      Happy that at least one judge didn't see the color of an involved uniform and rubber-stamp anything they touched

      Not only that, they (10th Circ., so three judges) chose to use the phrase "And we have news for the Government." I'm not a lawyer, but I think that translates into layman's terms as "Listen up, you chuckle-headed f*ck-wits."

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Nov 2018 @ 11:35am

        Re: Re: It makes my head hurt...

        The disturbing thing for me is that this could be considered "news for the Government" -- this really really shouldn't be news.

        reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 22 Nov 2018 @ 11:35am

      Re: It makes my head hurt...

      This. And to expand on it, think of how delightedly surprised we are when a prosecutor and judge treats a cop who is accused of wrongdoing like every non-cop accused of the same thing is treated.

      What's especially bad about that flavor of delight is that the way cops are usually treated -- that looks like systemic corruption to those of us on the outside -- is actually how everyone is supposed to be treated. It's what 'innocent until proven guilty' actually looks like in operation.

      And we're delighted to see a cop treated as 'guilty until proven innocent' like the rest of us, even as that treatment ought to be horrifying. The corruption in those sorts of cases isn't that cops get treated as innocent until proven guilty, the corruption is that the courts don't treat EVERYONE that way!

      reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 21 Nov 2018 @ 3:43pm

    The government simply can't do what it did -- turn someone's house into occupied territory for several hours without probable cause -- and expect its evidence to survive.

    Nah, it can. It does, probably. It just hates when its expectations meet with reality.

    🎵 Government Man, Government Man
    🎵 Government Man meets Reality Man
    🎵 They have a fight; Reality wins
    🎵 Reaility, Man

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2018 @ 6:44pm

      Re: Cops do what they please

      yes, cops absolutely CAN seize a house for 15 hours without a warrant. The news account here clearly demonstrates that indisputable fact. The cops did it easily.

      The irony of this situation escapes many people apparently-- the cops were caught red-handed committing multiple felonies... but it did not even occur to this court judge to prosecute these individuals.
      The entire police department is thus free to repeat similar crimes, knowing there will be no personal consequences.

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 21 Nov 2018 @ 7:51pm

        Re: Re: Cops do what they please

        The DA could charge the cops, but the DA would quickly be out of law enforcement officers and/or have them more or less go on strike. This is like all other times when the DA gets hard on cops who break the law.

        The next real course of action is a Civil suit naming the officers and the local agency. If the person wronged really wants to get them, ensure the suit establishes legal precedent that taking a house for any amount of time is a violation of rights.

        IF he does all this work, then next time he can/someone else can pierce qualified immunity as its only now established case law that blocaiding a property with out a warrant is illegal and the cops personal property is now on the line.

        You can thank the Supreme Court for the above insanity.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 21 Nov 2018 @ 8:20pm

          Re: Re: Re: Cops do what they please

          IF he does all this work, then next time he can/someone else can pierce qualified immunity as its only now established case law that blocaiding a property with out a warrant is illegal and the cops personal property is now on the line.

          ... so long as it's exactly 15 hours before they get the warrant, and so long as there's exactly the same number of people involved, and so long as it's dealing with an instance where someone died, because if the details aren't exactly the same how would anyone possibly know that what they're doing is wrong?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Nov 2018 @ 4:58am

          Re: Re: Re: Cops do what they please

          "DA would quickly be out of law enforcement officers "

          So be it ... maybe some individuals with integrity would then step forward and fill those positions - or not. Depends upon whether they would get support from higher levels of government.

          reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 22 Nov 2018 @ 11:38am

          Re: Re: Re: Cops do what they please

          If cops will stop doing their jobs because they are actually required to do their jobs, then fire them and find someone who is willing to do their jobs. Even the most extreme collective bargaining laws allow an employer to specify the parameters of the job to be done. It doesn't matter what the union has negotiated if the boots on the ground flatly refuse to do the job they were hired to do.

          Running out of cops isn't the issue here. Running out of corrupt cops would be a feature, not a bug.

          reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 25 Nov 2018 @ 8:23am

        Re: Re: Cops do what they please

        It appears that you may have missed the dependent clause:

        The government simply can't do what it did -- turn someone's house into occupied territory for several hours without probable cause -- and expect its evidence to survive.

        This is not saying "you are not able to do X", but rather "if you do X, it is not legitimate for you to expect Y to happen".

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 25 Nov 2018 @ 1:50pm

          Re: Re: Re: Cops do what they please

          Unfortunately that isn't quite accurate, in that they could expect to get away with it, as multiple cases covered on TD in the past have shown.

          'Good faith exception' can and has allowed all sorts of illegal actions to not only get a pass but resulted in the evidence resulting from said action allowed in court, and one need only look to the previous stage in this lawsuit, where the evidence wasn't prohibited, to see this in action.

          As such they most certainly could legitimately expect that doing X wouldn't negatively impact them, because until this stage of the case it didn't.

          reply to this | link to this | view in chronology ]

          • icon
            The Wanderer (profile), 26 Nov 2018 @ 4:50am

            Re: Re: Re: Re: Cops do what they please

            I (think that I) would argue that that turns on the difference between reasonable and legitimate.

            Yes, it was reasonable for them to expect that they'd be able to get away with it; that is, reasoning from the observable evidence (the loads and loads of good-faith-exception precedent to which you refer) could validly lead to that conclusion.

            But that doesn't mean that their expectation of that was legitimate, and in fact the court's decision seems to have held exactly that it was not.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2018 @ 3:44pm

    why the show of force in the beginning?

    So a report of a dead body and automatically they assume murder?

    Maybe I missed some details.

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 22 Nov 2018 @ 5:59am

      Re: why the show of force in the beginning?

      THIS is why when my dad chose to pass on quietly under hospice care, they told us to NOT call the police if he passed while they weren't there. They gave us their personal cell number and told us to call THEM. They'd handle all the details. Calling the police would just invite all manner of problems... as we have seen a number of times in articles here.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 22 Nov 2018 @ 10:33am

      Re: why the show of force in the beginning?

      If you read the opinion itself, you learn that the officer in charge noted that the death wasn’t suspicious and he never suspected murder here.

      Furthermore, the Supreme Court has clearly stated multiple times that there is no “crime scene exception” or “death exception” to the requirement for a warrant prior to a search and/or seizure.

      Whether or not suspicion of murder would be reasonable upon report of a dead body, that is not an excuse for a warrantless seizure, and at any rate, no one involved suspected murder anyway.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 22 Nov 2018 @ 11:45am

      Re: why the show of force in the beginning?

      This almost happened to my mother. My grandmother had been diagnosed with congestive heart failure (with a lower chance to survive the operation than to survive the condition, due to her age). So she had been gradually getting worse, putting her affairs in order, and working with my mother and aunts to sort out her belongings.

      Then one morning, my mother drove over to do more sorting, and found my grandmother collapsed across her bed, dead. From the way she was lying and the way she was dressed, it was obvious she had been putting her pajamas on, felt weak, and sat down to catch her breath. Then never moved again.

      So, my mother called emergency services to report the dead body and to request transportation of my grandmother's body to the already-arranged funeral facilities. The first cop to arrive was a young buck who had visions of making a big murder bust dancing in his eyes, so occluding his vision that he never noticed any physical evidence.

      So instead of calling it in as a death by natural causes, he called in a murder scene and demanded an investigator team to process the 'crime scene'. It took hours. He wouldn't let my mother leave the house, call anyone or even cover up her own mother's body. It wasn't until his supervisor wondered what was keeping him at a simple body pickup that the supervisor showed up and shut the idiot down, allowing sanity to prevail.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 21 Nov 2018 @ 4:00pm

    Because why not?

    The government simply can't do what it did -- turn someone's house into occupied territory for several hours without probable cause -- and expect its evidence to survive.

    Why wouldn't it? The legal abomination that is 'good faith exception' salvages cases on a regular basis, and a good number of judges are willing to look the other way so long as the police are the ones trampling rights, so why wouldn't they give it a shot and expect it to have higher than zero odds of success?

    As Killercool noted in their comment results like this are an unexpected surprise, and a welcome one, because far too often it doesn't go this way, and instead you have judges giving passes to violate the law to the very people who should be held to it the most stringently.

    For a perfect example all it takes is a realization that this was an appeal, and that the previous ruling didn't go this way and didn't suppress what was found from the tainted search to see this in action.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2018 @ 4:02pm

    "The government simply can't do what it did -- turn someone's house into occupied territory for several hours without probable cause -- and expect its evidence to survive."

    I think they can. This seems like the exception....

    reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 21 Nov 2018 @ 7:17pm

      Re:

      So instead of a "good faith" exception to the fourth amendment, we have a "4th amendment" exception to the "good faith" doctrine.

      Reality, man.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 22 Nov 2018 @ 11:48am

      Re:

      I can commit any number of felony crimes. Murder, assault, robbery, you name it -- I CAN do them, I have the means and ability. I don't have the motivation, but I have the physical capability to commit them.

      But they're illegal, so I'd be punished for doing those things. That's what people mean when they say "X can't do that." They actually mean "can't do that lawfully."\

      Just because you're mindlessly pedantic doesn't change that.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 22 Nov 2018 @ 12:25pm

        Re: Re:

        It's the difference between CAN'T and WOULDN'T. I CAN commit any number of horrible offenses, but I WOULDN'T. It never hurts to be precise, ESPECIALLY where LEOs are concerned. ;)

        reply to this | link to this | view in chronology ]

    • identicon
      Peter, 23 Nov 2018 @ 5:17am

      Re:

      "......expect its evidence to survive"

      Well the cop (investigator?) appear to think so. The cop's bosses appear to think so. Three federal agents and another officer who executed the warrant appeared to think so. The prosecutor seemed to think so. The District court seem to think so.

      From the source article "Any reasonably well-trained officer would know this seizure violated the Fourth Amendment". If everyone from the cop to the the district court are not sufficiently trained to know it violated the fourth amendment, it is not really surprising that this seems to be the exception.

      P.S. Anyone else notice the damming phrase "a neutral magistrate judge unknowingly issued a tainted warrant". There is the implication that they applied to the Judge knowing that it was tainted, thus deliberately pulling the wool over his eyes.

      reply to this | link to this | view in chronology ]

      • icon
        stderric (profile), 23 Nov 2018 @ 9:31am

        Re: Re:

        P.S. Anyone else notice the damming phrase "a neutral magistrate judge unknowingly issued a tainted warrant".

        Thanks for mentioning that. I first read the decision piecemeal and then focused on the weirdness of events up to the coerced permission for a limited search, and totally forgot about that comment. It really seems to imply that we should toss Hanlon's razor out the window for Cooke's routing through federal agents to get a warrant.

        reply to this | link to this | view in chronology ]

      • identicon
        Christenson, 23 Nov 2018 @ 11:00pm

        Re: Re:

        Isn't that "unknowingly" implying perjury? Thanks for that PS!

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    John Smith, 21 Nov 2018 @ 4:49pm

    Would you allow a pirate 15 hours to delete all the incriminating evidence? Same logic applies here. Techdirt once again prooves there is no level thry won't stoop to just so Masnick can rape artists.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2018 @ 5:01pm

      Re: Impotent rage is impotent

      So how’s that fbi investigation going bro?
      They nail Mikes Orca-Wizard Barrister Corps yet?

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 21 Nov 2018 @ 8:09pm

        Re: Re: Impotent rage is impotent

        No, but I hear he's getting really close to discovering the location of the underground wolpertinger petting zoo.

        reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 21 Nov 2018 @ 5:02pm

      Re:

      Rape is the only way you’d be able to get laid even if you weren’t impotent.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 21 Nov 2018 @ 5:31pm

        Re: Re:

        Please try not to sink to their level, one warped person slinging around mentions of 'rape' with regards to someone they don't like is already one too many.

        reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 21 Nov 2018 @ 8:08pm

      Re:

      Would you allow a pirate 15 hours to delete all the incriminating evidence?

      How many civil rights would you deny to someone you thought—not knew, thought—was committing a single act of copyright infringement?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2018 @ 8:29pm

      Re:

      and what the fuck all does this article have to do with copyright infringement??? You sorry excuse for a person.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Nov 2018 @ 9:10am

      Re:

      Would you allow a pirate 15 hours to delete all the incriminating evidence?

      You'd think with all this incriminating evidence it wouldn't take 15 hours to get a warrant.

      reply to this | link to this | view in chronology ]

  • icon
    stderric (profile), 21 Nov 2018 @ 8:51pm

    For anyone who's confused as to the initial motivation for the LEOs' behavior (questioning Shrum for hours, denying him access to his home, and coercing a limited search agreement out of him -- all the things that happened before seeing the ammo in his closet), you really need to read the decision... not to gain a better understanding, mind you, but it might make you feel better to know that the circuit court judges seem pretty confused, too.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Nov 2018 @ 6:14am

    So the Judge found that there is a "4th" exemption to the "good faith" amendment?. Make a nice change

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 22 Nov 2018 @ 10:41am

      Re:

      Actually, the court found there was no “good faith” involved here. “Good faith” would have required a warrant before the seizure of the house and the original search for the medication. Furthermore, as noted in the opinion, the warrant itself contained blatant falsehoods, so again, “good faith” doesn’t apply.

      Heck, the only way the LEOs even attempt to assert “good faith” here is regarding the ATF agents that executed the search warrant, but that’s irrelevant because the issue is what the other LEOs did in obtaining the warrant; the ATF agents don’t enter into it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anon, 22 Nov 2018 @ 9:02am

    Missing piece ...

    Missing from this whole discussion is why the cop was in the closet (I assume he came out afterwards... :) )

    He was given a limited permission to go retrieve medication. Who keeps medication in the bedroom closet instead of the bathroom? In the bedroom closet does not sound like the "in plain sight" exception to me. Or did they pull a fast one and add in "and look everywhere for more medication"?

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 22 Nov 2018 @ 10:43am

      Re: Missing piece ...

      According to the officer, the closet in question was already opened when he got there, and if so, photographs taken at the time do show that the ammunition would be in plain sight once inside the home on the way to get the medication.

      reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 22 Nov 2018 @ 10:49am

    Corruption is the Rule

    Because those at the top in the US legal system are appointment there is bias and corruption built in. It's close to impossible to end up with rulings that don't favor the most powerful or well connected.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 22 Nov 2018 @ 1:00pm

    3 years??

    Why did this take 3 years??

    trying to disprove constitutional presidence??
    Article dont say anything about finding weapons or if/why they held him..was he arrested?

    "The search warrant yielded more, a gun, and some meth. The house was unreasonably seized for the duration. "

    And still no notice of the cause of death?? and its never brought up in court??
    Then there was no Cause of death besides natural..

    reply to this | link to this | view in chronology ]

    • icon
      stderric (profile), 22 Nov 2018 @ 2:41pm

      Re: 3 years??

      Why did this take 3 years??

      Because the wheels of justice grind slowly... and our system likes to grind people down as much as it can, should the unthinkable happen and justice eventually come down in favor of the accused.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 23 Nov 2018 @ 9:42am

        Re: Re: 3 years??

        Our system was setup and designed years ago, for ??? people..
        AND NOW we have not changed a thing, and I will guess we have over 10 times the people.. 100 times the corps... and 10th the taxes for the corps..

        reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.