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

Title: Court To Law Enforcement: You Can't Seize A House For 15 Hours Before Obtaining A Warrant
Source: TechDirt
URL Source: https://www.techdirt.com/articles/2 ... before-obtaining-warrant.shtml
Published: Nov 21, 2018
Author: Tim Cushing
Post Date: 2018-11-22 08:57:19 by Deckard
Keywords: None
Views: 1063
Comments: 3

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.

It was a crime scene, for crying out loud! His wife was FOUND DEAD in his home. As the husband, he's the prime suspect.

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