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Spring/Summer 2000 Issue

Herbicide Spray Alert
CHP Accountability and Roadside Searches
Medical Marijuana News
New Lead Deputy for Humboldt County DEU
Warrantless Searches
Asset Forfeiture
Greensweep Lawsuit Update
Newsbites and Updates

Warrantless Searches
...by Bonnie Blackberry

Now retired, Humboldt County Superior Court Judge John E. Buffington wrote several rulings in the spring of 1993, which included interesting background history on the Fourth Amendment. In his view, Humboldt County's law enforcement marijuana eradication efforts included the use of tactics which bypassed Fourth Amendment restrictions against warrantless searches.

The "knock and talk" tactic, as described in the rulings, involved the Humboldt County MET team's driving or wandering around in rural areas, in attempts to locate specific individuals or specific property. In these purposeful sojourns, residences were approached, the deputies announced their presence and knocked on doors, the deputies looked around yards and outbuildings to apparently see if anyone was there, or more particularly, if any marijuana was being cultivated. The deputies said that since they had a reason to approach the residences to ask for directions or to see if someone knew of the person or property they were trying to locate, then they had the right to be there. And once inside someone's yard or at their front door, if they happened to spot marijuana in plain view and then proceeded to get a search warrant, it was okay.

The crux of these cases seemed to come down to, Where did the police have a right to be, and was using a ruse good enough to get them to a place they had no lawful right to be. Judge Buffington ruled to suppress the evidence gathered by law enforcement due to violations of Fourth Amendment protections, in what he called a "conspiracy" between the Humboldt County Sheriff's Department's Marijuana Eradication Team (MET) and the Humboldt County District Attorney's Office, to avoid the Fourth Amendment restrictions.

Note that an exemption from the Fourth Amendment restrictions against warrantless searches is allowed when "exigent circumstances made that course imperative." "Hot pursuit" is considered an exigent circumstance. Buffington also included this curtilage description: "The curtilage is the area immediately surrounding and associated with the home and to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life. The curtilage is provided Fourth Amendment protection; open fields are not." (Open fields includes the "private property" not contained inside the curtilage.)

The following are excerpts from Buffington's 1993 rulings:

"An important forerunner of the first 10 Amendments to the United States Constitution, the Virginia Bill of Rights specifically opposed 'general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed.' The general warrant was a recurring point of contention in the colonies immediately preceding the Revolution. The particular offensiveness it engendered was acutely felt by the merchants and businessmen whose premises and products were inspected for compliance with the several parliamentary revenue measures that most irritated the colonists.

"The English Colonial/Mercantile System was an attempt to make England a power in the work trade arena. The English attempted to control trade to and from the colonies to assure that English merchants and the English Government would get the maximum benefit. Certain goods from the colonies were required to be shipped to England before they could be placed in world commerce. To prevent smuggling and other infractions of the Navigation Acts, the laws had allowed 'Writs of Assistance,' general search warrants which were not based on cause, and which allowed a search of any place for contraband goods. These writs were in the law in the mid-1600s. They were not extensively used until after 1750.

"In the 1760s they became a vexation to the New England merchants who were not averse to making money via smuggled goods. The writs were found to be legal by English Courts in 1767. This occurred at about the same time that John Wilkes successfully challenged a general writ used to find certain publications attributable to him. The colonists were galled by the fact that a Writ of Assistance allowed any officer of the government to search their homes, seize any contraband and then send the case to Halifax to be tried before an Admiralty Court without a jury. The use of the writs became a major point of contention between the colonies and the English Government.

"The Fourth Amendment to the United States Constitution guarantees that the people of this country, their papers and residences are to be free from unreasonable searches and seizures. In the law of search and seizure, developed in this country, there has been one guiding principle: A search of private property without warrant is, on its face, unreasonable.

"In McDonald v. United States (1948) 355 U.S. 451, 93 L. Ed 15, government agents seized goods without a warrant, after an arrest, the court said.

'Where, as here, officers are not responding to an emergency, there must be compelling reasons to justify the absence of a search warrant. A search without a warrant demands exceptional circumstances... We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed the magistrate between the citizen and the police. This was not done to shield criminals nor to make the home a safe haven for illegal activities. It was done so that the objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals... And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.'

"The Fourth Amendment states: '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 on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

"Lastly, the officers of the government would do well to understand that the Constitution is the compact of the government. The government's power is derived from the will of the People of the United States and of the State of California. The Constitutions of those governments protect all people, innocent and guilty, from unreasonable searches and unreasonable seizures. A search conducted without a warrant is unreasonable. Nowhere does the law say that a general search cannot be allowed unless it is for marijuana gardens. Nor does the law allow governmental agents to agree to disregard the law in order to ferret out criminals in Humboldt County or elsewhere.

"A judge, prosecutor and a law enforcement officer are all agents of the government. Each takes an oath of office to uphold the law. When officers agree to disobey the law they act contrary to their sworn duties... Here, the officers clearly knew... they needed some means, or method, to be able to drive up to and inspect the areas around residences. They concluded that they could claim they were conducting law enforcement functions which caused them to "search" for a person or a location... It is clear that the claims of MET, as to legal law enforcement activity, were ruses or pretexts, intended to allow general searches. The agreements to make such claims, the agreements to conduct general, exploratory searches which they know to be illegal, were agreements to violate the Fourth Amendment. As such, they are by definition a conspiracy."

Judge Buffington ended the last ruling with the following: "When law enforcement officers conduct a search without a warrant, pursuant to an arrest or an exigent circumstance, courts will often attempt to justify the result, as long as the officers do not unreasonably stretch the scope of their task. But here, there is no arrest, there is no exigency, there is only the festering knowledge that there are 'dope growers' in Humboldt County, and that there is cool calculation, by government agents familiar with the laws of search and seizure, on how to avoid the Fourth Amendment's restrictions. It is that avoidant conduct which is so fundamentally wrong, so blatantly illegal. All of these searches were the products of unlawful acts and all the fruits must be suppressed."

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