Interesting dissent by 9th Circuit in a Nevada case
In United States v. Black, the 9th Circuit declined en banc consideration of a panel decision denying an appeal. Circuit Judges Kozinski, Reinhardt, Kleinfeld and Berzon dissented from the denial of the petition for rehearing, in an order that begins:
"Once upon a time in the West there was a special place called home. Solemn pronouncements from our nation's highest court, and our own court, protected it from warrantless police intrusions. . . .
That special place is no more. The rules haven't changed, at least not on paper. But legal rules are only as good as their last application. The panel majority dutifully recites the right standard, but guts it of all meaning by approving an intrusion into the home that does not remotely satisfy it. If the justification here satisfies the government's 'heavy burden' to show non-speculative 'exceptional circumstances,' it's hard to imagine how we can keep the police from barging into any home anytime they please."
The remainder of the dissent is well worth reading, but the following quotation is especially worthy of note:
"The majority gives the government a pass because 'the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy.' Maj. op. at 3969 (quoting United States v. Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004)). The problem with this approach is that the government has any number of such crises-du-jour: terrorism, child pornography, child abuse, drugs, hate crimes -- the list is endless. When confronted with such serious crimes, it is the job of the police to be suspicious; the job of the courts is to insist that police develop evidence supporting these suspicions before they defile the sanctity of the home.
In a particularly disturbing passage, the panel majority opines that '[e]rring on the side of caution is exactly what we
expect of conscientious police officers.' Maj. op. at 3969. This is entirely backwards when the cautious error involves invasion of the home. In such circumstances, we expect police to err on the other side of caution by staying out unless and until they obtain a warrant or satisfy the demanding constitutional standard for a warrantless search. The majority's unfortunate phrase will be widely seen as a green light for the police to 'err on the side of caution' by breaking into people's homes based on half-baked suspicions.
When a panel of our court can find that the facts here satisfy the government's 'heavy burden' for invading the home without a warrant, I despair about the future of our constitutional rights. If the right accorded the greatest protection by the Fourth Amendment -- the right to privacy of the home -- can be so casually brushed aside, no right is safe. Because my colleagues do not similarly view this issue as one of exceptional importance, I sorrowfully dissent."
The Circuit's Order Amending Opinion and Dissent and Amended Opinion and Amended Dissent are available here.
Anne Truam of the Federal Public Defender's Office represents Black. My guess is that there is a certiorari petition in the works.