The 7th Circuit Court of Appeals Just Weakened the Fourth Amendment

On June 5th, the 7th Circuit Court of Appeals issued a unanimous decision regarding US v. Huskisson, weakening the Fourth Amendment and due process. The original case seems relatively cut and dry with regards to Huskisson’s guilt; he agreed to sell methamphetamine to a confidential informant while DEA agents recorded the call. Huskisson arrived at his home the next day with the informant, carrying a cooler. The informant then gave a signal and multiple DEA agents entered the house, arresting Huskisson, who did not consent to a search of his property.


The 7th Circuit Court of Appeals Just Weakened the Fourth Amendment - Porter Medium

RandyJa said:

On June 5th, the 7th Circuit Court of Appeals issued a unanimous decision regarding US v. Huskisson, weakening the Fourth Amendment and due process. The original case seems relatively cut and dry with regards to Huskisson’s guilt; he agreed to sell methamphetamine to a confidential informant while DEA agents recorded the call. Huskisson arrived at his home the next day with the informant, carrying a cooler. The informant then gave a signal and multiple DEA agents entered the house, arresting Huskisson, who did not consent to a search of his property.


The 7th Circuit Court of Appeals Just Weakened the Fourth Amendment - Porter Medium

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Wait, the search was illegal but "meh...they would have gotten a warrant anyway" is the justification here. That is ****ed up.

Stunning? Why would the court allow this to happen? Hope it's appealed and this mistake corrected!


"The Court did reiterate that the search was illegal, but the decision was to allow the evidence, and thus the conviction, to stand:

“We do not condone this illegal behavior by law enforcement; the better practice is to obtain a warrant before entering a home,” the panel continued. “Ordinarily, the evidence found here would be excluded. But because the government had so much other evidence of probable cause, and had already planned to apply for a warrant before the illegal entry, the evidence is admissible.
“Though the government should not profit from its bad behavior, neither should it be placed in a worse position than it would otherwise have occupied,” the panel concluded."

“We do not condone this illegal behavior by law enforcement; the better practice is to obtain a warrant before entering a home,”

The "better" practice? How about the "legal" practice?

This is a bad decision by that court.

RandyJa said:

On June 5th, the 7th Circuit Court of Appeals issued a unanimous decision regarding US v. Huskisson, weakening the Fourth Amendment and due process. The original case seems relatively cut and dry with regards to Huskisson’s guilt; he agreed to sell methamphetamine to a confidential informant while DEA agents recorded the call. Huskisson arrived at his home the next day with the informant, carrying a cooler. The informant then gave a signal and multiple DEA agents entered the house, arresting Huskisson, who did not consent to a search of his property.


The 7th Circuit Court of Appeals Just Weakened the Fourth Amendment - Porter Medium

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The fourth amendment is clear. You need a warrant. The fact they might get a warrant later is irrelevant. Because if that worked then cops can just search anyone's property willy nilly and say they would have gotten a warrant anyways.

RandyJa said:

On June 5th, the 7th Circuit Court of Appeals issued a unanimous decision regarding US v. Huskisson, weakening the Fourth Amendment and due process. The original case seems relatively cut and dry with regards to Huskisson’s guilt; he agreed to sell methamphetamine to a confidential informant while DEA agents recorded the call. Huskisson arrived at his home the next day with the informant, carrying a cooler. The informant then gave a signal and multiple DEA agents entered the house, arresting Huskisson, who did not consent to a search of his property.


The 7th Circuit Court of Appeals Just Weakened the Fourth Amendment - Porter Medium

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Decades ago the courts carved out a "drug law exception" to searches.

Congress followed suit with the USA Patriot act and its National Security Letters.

The current situation is that the Fourth Amendment is very much a thing of the past, rendered null and void by all 3 branches of government.

calamity said:

Wait, the search was illegal but "meh...they would have gotten a warrant anyway" is the justification here. That is ****ed up.

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No, that was not the Holding by the 7th Circuit Court of Appeals.

jamesrage said:

The fourth amendment is clear. You need a warrant. The fact they might get a warrant later is irrelevant. Because if that worked then cops can just search anyone's property willy nilly and say they would have gotten a warrant anyways.

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The 7th Circuit's opinion has two very important Holdings. A Holding by the 7th Circuit is that there was enough independent evidence in the warrant establishing probable cause without the methamphetamine observed in plain view as a result of the illegal entry. In other words, extricating the meth discovered as a result of the illegal entry from the warrant, does the warrant still contain probable cause? The answer by the 7th Circuit Court was yes.

Another Holding addresses whether the decision to obtain a search warrant was because of the meth found as a result of an illegal entry or regardless of entry and discovery of anything, the officers were determined to seek a search warrant. The rationale behind this approach is the taint of the illegal entry and discovery of meth can taint decision making to obtain a warrant, which also taints the warrant. But if officers were already determined to obtain a warrant regardless of entry and what was seen as a result of entry, then the taint of the illegal entry and what is discovered as a result of the illegal entry does not carry over to their decision making or the warrant, since their decision to obtain a warrant preceded any illegality.

calamity said:

Wait, the search was illegal but "meh...they would have gotten a warrant anyway" is the justification here. That is ****ed up.

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Actually, no. There is a legal concept that applies in these matters called "inevitable discovery." Since the defendant was basically caught red-handed in the commission of a felony, the lack of a search warrant is largely a technicality. Think about it for a moment: If the facts of the situation were sworn out in a request for a warrant, is there any doubt that the warrant would have been issued? No, there is not. Hence, it is an academic exercise tantamount to the defendant saying "Aha! You didn't say 'mother may I." You can read about it here.

jamesrage said:

The fourth amendment is clear. You need a warrant. The fact they might get a warrant later is irrelevant. Because if that worked then cops can just search anyone's property willy nilly and say they would have gotten a warrant anyways.

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It's not the cops who decide whether evidence is admitted sans a warrant. The courts do that. The defense has to show that under the circumstances if the police had sworn out an affidavit for a warrant, there is reason to believe it would have been denied. In this case, there is no reason to believe the warrant would have been denied.

Mycroft said:

“We do not condone this illegal behavior by law enforcement; the better practice is to obtain a warrant before entering a home,”

The "better" practice? How about the "legal" practice?

This is a bad decision by that court.

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jamesrage said:

The fourth amendment is clear. You need a warrant. The fact they might get a warrant later is irrelevant. Because if that worked then cops can just search anyone's property willy nilly and say they would have gotten a warrant anyways.

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This was actually a very good decision, and consistent with the Supreme Court decision in Murray v. United States, 487 U.S. 533 (1988).

Hats off to Mycroft and Jamesrage.... I agree with your posts, and what I'm going to say now doesn't apply to either of you.

But this decision is typical of the kind of conservative activism - especially in criminal law - that has become typical within the courts since the 1980's. The Fourth Amendment is clear on this matter... I don't know how anyone who considers themselves to be a strict constructionist or adhere to original intent (or whatever other label conservatives put on themselves when they want to look down on liberal activists) could dispute it:

Amendment 4
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Seems pretty clear to me. This is part of a trend - I've been having this debate in another thread on use of the Steele Dossier in FISA Warrant applications - going back to at least Justice Rehnquist's opinion in the 1983 Illinois v. Gates case. Seems to me that there are an awful lot of conservative judges who are all too willing to look past the wording of Constitution if it helps their "law and order" agenda.

Stealers Wheel said:

Actually, no. There is a legal concept that applies in these matters called "inevitable discovery." Since the defendant was basically caught red-handed in the commission of a felony, the lack of a search warrant is largely a technicality. Think about it for a moment: If the facts of the situation were sworn out in a request for a warrant, is there any doubt that the warrant would have been issued? No, there is not. Hence, it is an academic exercise tantamount to the defendant saying "Aha! You didn't say 'mother may I."

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The thing many are missing is that a warrant is not needed if there is a known crime (especially a felony) taking place. When the officers are aware of the commission of a felony in the premises, a warrant is not needed. That is why the police do not need to wait for a warrant if somebody is beating their wife inside of their house.

Now if there was not a known felony occurring, then the odds are this would all have been thrown out. This also was not a "blind crapshoot" like when they go into a crackhouse. Then they simply know drugs are likely present, but do not know for sure if there are drugs, or if a sale is going down. The same if a house is suspected (but not known) to have a wanted felon inside.

But if a cop sees a felon who is wanted go into a house, then other cops can be called and the house entered without a warrant.

It all really falls back to probable cause. A warrant is not required, so long as probable cause can be proven.

Oozlefinch said:

The thing many are missing is that a warrant is not needed if there is a known crime (especially a felony) taking place. When the officers are aware of the commission of a felony in the premises, a warrant is not needed. That is why the police do not need to wait for a warrant if somebody is beating their wife inside of their house.

Now if there was not a known felony occurring, then the odds are this would all have been thrown out. This also was not a "blind crapshoot" like when they go into a crackhouse. Then they simply know drugs are likely present, but do not know for sure if there are drugs, or if a sale is going down. The same if a house is suspected (but not known) to have a wanted felon inside.

But if a cop sees a felon who is wanted go into a house, then other cops can be called and the house entered without a warrant.

It all really falls back to probable cause. A warrant is not required, so long as probable cause can be proven.

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Warrants are not required if the search/seizure is reasonable. The Fourth Amendment exists to protect us against "unreasonable" searches and seizures, not reasonable ones. As long as there is "Reasonable Articulable Suspicion" then no warrant is required. The decision by the 7th Circuit Court is consistent with the Supreme Court decision in the 1988 Murray case that I cited above.

To claim violation of Fourth Amendment as the basis for suppressing a relevant evidence, the court had long required that the claimant must prove that he himself was the victim of an invasion of privacy to have a valid standing to claim protection under the Fourth Amendment. However, the Supreme Court has departed from such requirement, issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant's Fourth Amendment rights have been violated, which in turn requires that the claimant demonstrates a justifiable expectation of privacy, which was arbitrarily violated by the government.

In general, most warrantless searches of private premises are prohibited under the Fourth Amendment, unless specific exception applies. For instance, a warrantless search may be lawful, if an officer has asked and is given consent to search; if the search is incident to a lawful arrest; if there is probable cause to search and there is exigent circumstance calling for the warrantless search. Exigent circumstances exist in situations where a situation where people are in imminent danger, where evidence faces imminent destruction, or prior to a suspect's imminent escape.

On the other hand, warrantless search and seizure of properties are not illegal, if the objects being searched are in plain view. Further, warrantless seizure of abandoned property, or of properties on an open field do not violate Fourth Amendment, because it is considered that having expectation of privacy right to an abandoned property or to properties on an open field is not reasonable.
However, in some states, there are some exception to this limitation, where some state authorities have granted protection to open fields. States can always establish higher standards for searches and seizures protection than what is required by the Fourth Amendment, but states cannot allow conducts that violate the Fourth Amendment.

Fourth Amendment | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute

Stealers Wheel said:

Actually, no. There is a legal concept that applies in these matters called "inevitable discovery." Since the defendant was basically caught red-handed in the commission of a felony, the lack of a search warrant is largely a technicality. Think about it for a moment: If the facts of the situation were sworn out in a request for a warrant, is there any doubt that the warrant would have been issued? No, there is not. Hence, it is an academic exercise tantamount to the defendant saying "Aha! You didn't say 'mother may I." You can read about it here.

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The Court did not actually apply the inevitable discovery exception, but the independent source exception. What the article left out is that law enforcement later applied for and received a warrant, which resulted in the seizure of the methamphetamine.

Glitch said:

Warrants are not required if the search/seizure is reasonable. The Fourth Amendment exists to protect us against "unreasonable" searches and seizures, not reasonable ones. As long as there is "Reasonable Articulable Suspicion" then no warrant is required. The decision by the 7th Circuit Court is consistent with the Supreme Court decision in the 1988 Murray case that I cited above.

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The first half of your post is right on. The second half is not quite right. If there is sufficient information to establish probable cause, then there are certain situations where the warrant requirement falls away. For example, if there is probable cause to believe there are narcotics in a car during a traffic stop. The inherently mobile nature of a car provides sufficient justification to dispatch with the warrant requirement. However, there are very few reasons why law enforcement may force their way into a house without a warrant. An example of such a situation would be if the LEO thought someone inside was in serious danger of harm.

This is directly relevant to this case. Had law enforcement not applied for a warrant in this case, the meth would have been excluded. However, because they sought and secured a warrant which was subsequently executed, the seizure of the meth actually resulted from the execution of the search warrant, rather than the unlawful entry. The police actually entered the house to secure it and preserve the evidence, rather than to look for it or seize it.

The exclusionary rule was established to deter law enforcement from unlawful activity. This case actually acts as an additional incentive to seek a warrant, notwithstanding an earlier violation. This is preferable to the alternative actions law enforcement might take if there is questionable behavior at the outset.

Oozlefinch said:

The thing many are missing is that a warrant is not needed if there is a known crime (especially a felony) taking place. When the officers are aware of the commission of a felony in the premises, a warrant is not needed. That is why the police do not need to wait for a warrant if somebody is beating their wife inside of their house.

Now if there was not a known felony occurring, then the odds are this would all have been thrown out. This also was not a "blind crapshoot" like when they go into a crackhouse. Then they simply know drugs are likely present, but do not know for sure if there are drugs, or if a sale is going down. The same if a house is suspected (but not known) to have a wanted felon inside.

But if a cop sees a felon who is wanted go into a house, then other cops can be called and the house entered without a warrant.

It all really falls back to probable cause. A warrant is not required, so long as probable cause can be proven.

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This is not true. There needs to be more than just probable cause to believe a felony is being committed in a residence for law enforcement to enter without a warrant. In your example where a husband is beating his wife, law enforcement may enter without a warrant to protect the wife from harm, and any observations made during such entry would be admissible under the plain view doctrine. Or, for example, if there is a reasonable belief that evidence will be destroyed. So, a warrantless entry of a home or other building requires probable cause + some exigent circumstance.

Cordelier said:

Hats off to Mycroft and Jamesrage.... I agree with your posts, and what I'm going to say now doesn't apply to either of you.

But this decision is typical of the kind of conservative activism - especially in criminal law - that has become typical within the courts since the 1980's. The Fourth Amendment is clear on this matter... I don't know how anyone who considers themselves to be a strict constructionist or adhere to original intent (or whatever other label conservatives put on themselves when they want to look down on liberal activists) could dispute it:



Seems pretty clear to me. This is part of a trend - I've been having this debate in another thread on use of the Steele Dossier in FISA Warrant applications - going back to at least Justice Rehnquist's opinion in the 1983 Illinois v. Gates case. Seems to me that there are an awful lot of conservative judges who are all too willing to look past the wording of Constitution if it helps their "law and order" agenda.

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Where in the Fourth Amendment does it say that a warrant is a precondition to lawful searches and seizures? Read the actual words, not what you think the words are.

And, I'm not sure what your point is about Illinois v. Gates. This case held an unknown informant's tip can, in part, be the basis for probable cause to issue a search warrant, and the test is simply a totality of the circumstances approach - which is the classic probable cause analysis. So, I'm not sure why moving away from an arbitrary two-prong test, which is not found in the 4th Amendment, is preferable to a reliance upon probable cause, which does appear in the 4th amendment, when a magistrate is deciding whether or not to issue a warrant. I'm not sure how in the world that could be considered activism.

clapee said:

Where in the Fourth Amendment does it say that a warrant is a precondition to lawful searches and seizures? Read the actual words, not what you think the words are.

And, I'm not sure what your point is about Illinois v. Gates. This case held an unknown informant's tip can, in part, be the basis for probable cause to issue a search warrant, and the test is simply a totality of the circumstances approach - which is the classic probable cause analysis. So, I'm not sure why moving away from an arbitrary two-prong test, which is not found in the 4th Amendment, is preferable to a reliance upon probable cause, which does appear in the 4th amendment, when a magistrate is deciding whether or not to issue a warrant. I'm not sure how in the world that could be considered activism.

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I'd say it'd depend on context, Clapee. If there were exigent circumstances that precluded authorities from obtaining a warrant in a timely fashion, then I'd agree that a warrant wouldn't be required. But that wasn't the case in this instance - the DEA had ample time to obtain a warrant based on the surveillance evidence obtained from their informant. That they consciously chose not to avail themselves of this option (thinking, no doubt, it better to ask for forgiveness than permission), in my opinion, constitutes a clear violation of Mr. Huskisson's 4th Amendment rights.

I mentioned the Gates case as an illustrative example of the steady erosion of the 4th Amendment's protections by the Courts since the early 1980's. Prior to Gates, the standard was the Aguilar-Spinelli test wherein an informant's credibility and reliability in addition to some of the circumstances involved in obtaining their information are pivotal considerations when deciding on probable cause. The Gates decision swept that away... now anonymous tips and "totality of evidence" are all that is required. So where is the 4th Amendment safeguard against "unreasonable search & seizure" in the post-Gates world? Anyone can give the police an anonymous tip for any reason..... could be an authentic informant with legitimate information, could be someone with an axe to grind... hell, could even be the police themselves looking to "shake things up"! So, I ask you.... what was so constitutionally flawed about Aguilar-Spinelli that it had to be abandoned by judicial fiat with Gates? If having the Supreme Court decide that the 4th Amendment's protections are to be taken so lightly that they can be pushed aside by an anonymous tip of unknown, unproven and unverifiable credibility isn't an example of clear jusidicial activism, then, what, I ask you is it?

Stealers Wheel said:

It's not the cops who decide whether evidence is admitted sans a warrant. The courts do that. The defense has to show that under the circumstances if the police had sworn out an affidavit for a warrant, there is reason to believe it would have been denied. In this case, there is no reason to believe the warrant would have been denied.

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Would the evidence still have been there when they did?

Seems that it might not have still been there when a warrant was issued so its discovery wouldn't have been "inevitable".

Glitch said:

Warrants are not required if the search/seizure is reasonable. The Fourth Amendment exists to protect us against "unreasonable" searches and seizures, not reasonable ones. As long as there is "Reasonable Articulable Suspicion" then no warrant is required. The decision by the 7th Circuit Court is consistent with the Supreme Court decision in the 1988 Murray case that I cited above.

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So why did they get a warrant after the fact?

Cordelier said:

I'd say it'd depend on context, Clapee. If there were exigent circumstances that precluded authorities from obtaining a warrant in a timely fashion, then I'd agree that a warrant wouldn't be required. But that wasn't the case in this instance - the DEA had ample time to obtain a warrant based on the surveillance evidence obtained from their informant. That they consciously chose not to avail themselves of this option (thinking, no doubt, it better to ask for forgiveness than permission), in my opinion, constitutes a clear violation of Mr. Huskisson's 4th Amendment rights.

I mentioned the Gates case as an illustrative example of the steady erosion of the 4th Amendment's protections by the Courts since the early 1980's. Prior to Gates, the standard was the Aguilar-Spinelli test wherein an informant's credibility and reliability in addition to some of the circumstances involved in obtaining their information are pivotal considerations when deciding on probable cause. The Gates decision swept that away... now anonymous tips and "totality of evidence" are all that is required. So where is the 4th Amendment safeguard against "unreasonable search & seizure" in the post-Gates world? Anyone can give the police an anonymous tip for any reason..... could be an authentic informant with legitimate information, could be someone with an axe to grind... hell, could even be the police themselves looking to "shake things up"! So, I ask you.... what was so constitutionally flawed about Aguilar-Spinelli that it had to be abandoned by judicial fiat with Gates? If having the Supreme Court decide that the 4th Amendment's protections are to be taken so lightly that they can be pushed aside by an anonymous tip of unknown, unproven and unverifiable credibility isn't an example of clear jusidicial activism, then, what, I ask you is it?

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I’ll tackle the second part first. Reliability and credibility are still factors with which courts will determine whether the facts give rise to probable cause to believe a crime was committed. The decision did not provide that an anonymous tip, without more, amounts to probable cause. In the particular case, there was evidence which corroborated the tip - that’s the point. And, I am aware of the two-prong test. I am a criminal defense attorney. That two-prong test was being misapplied to completely ignore tips, even when there was other evidence, which taken together with the tip, would give rise to probable cause. Gates merely clarified that the two-prong test, which was created by judicial fiat in the first place, that it is merely one factor to consider in the totality of the circumstances analysis.

With regard to your first part, I’ll ask you a question to clarify my point. Understanding that they LATER secured and executed a search warrant, what evidence was gathered by the unlawful entry?

What if...? said:

So why did they get a warrant after the fact?

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So they could seize the narcotics. They DID NOT seize any evidence. They merely secured the scene without a warrant.

What if...? said:

So why did they get a warrant after the fact?

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So they could demonstrate that they would have gotten the warrant. They had enough to convince a judge that they had the prerequisites for a warrant. In other words, this is not just a technicality. The search was reasonable and warranted.