Police officers are human beings, charged with the important, difficult, and "often competitive enterprise of ferreting out crime." (Johnson v. United States (1948) 333 U.S. 10, 14 [92 L. Ed. 436, 68 S. Ct. 367].) Individual mistakes and overreaching will occur despite the best efforts of departments, supervisors, and officers acting in good faith.
A neutral, detached magistrate—not law enforcement—must decide whether probable cause supports a warrant. Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948). So the magistrate must be sure what the triggering event is and that it will establish probable cause.
Id. (citing Johnson v. United States, 333 U.S. 10, 13-14 (1948)). It follows that, “a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show … the presence of exigent circumstances.”
The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.Johnson v. United States, 333 U.S. 10, 13-14 (1948).Every search or seizure is a conflict between competing interests.
But the Fourth Amendment requires that “those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14 (1948).The factor we find most important in this case that weighs against finding recklessness is the plausibility of Parkinson’s understanding of his affidavit.
In Dimaya v. Lynch, the Ninth Circuit held that 18 U.S.C. 16(b) was void for vagueness as incorporated into the immigration laws. The Ninth Circuit relied heavily on the Supreme Court decision in Johnson v. United States, 333 U.S. 10 (2015) [PDF version]. The instant case discusses the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1 (2004) [PDF version], wherein the Supreme Court briefly discussed 18 U.S.C. 16(b) and explained that “burglary” may be the classic crime that would fall under the provision [see article].
Bivens, 403 U.S. at 392. The search of a home is presumptively unreasonable unless authorized by a warrant, Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006), which must be issued by a neutral judicial officer, see Johnson v. United States, 333 U.S. 10, 13-14 (1948). Unlike rules of criminal procedure and other sub-constitutional bodies of law, violations of which may be unlawful but are not necessarily unconstitutional, see Virginia v. Moore, 553 U.S. 164, 176 (2008) (“[W]hile States are free to regulate … arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections”), compliance with the limitations of a warrant is required by the Constitution itself, Bivens, 403 U.S. at 394-95 n.7 (“[T]he Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant”).
See, Brown v. Town of Greenfield, 2002 WL 467130, at *3 (D.N.H. Mar. 26, 2002) (stating that “unsupported claim that the officer seeking an arrest warrant and the Magistrate issuing the warrant are ‘friends’ is wholly insufficient to support the conclusion that the arrest warrant was invalid”). In short, Lovett was not engaged in “the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 14 (1948), when he issued the warrant in this case.That said, Lovett may want to reconsider some of his affiliations and his involvement with social media. As Defendant points out, the Canons of the Judicial Code of Conduct requires that judges “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”; “not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment”; “not convey or permit others to convey the impression that an person organization is in a position to influence the judge”; and “not … participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”
Here’s the problem with the trial court’s position: binding case law that the odor of marijuana does not, by itself, show exigent circumstances. (¶17 (citingHughes, ¶¶27-28, Johnson v. United States, 333 U.S. 10 (1948), and State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997))). The state tries to get around this obstacle by positing that “other factors” support exigency here.The problem with that argument is that these “other factors” either lack any basis in the officer’s observations or consist of speculation based solely on the presence of the marijuana odor.
There were no exigent circumstances that required the police to demand entry into the apartment. See Johnson v. United States, 333 U.S. 10 (1948) (smell of drugs in house does not create exigency justifying warrantless entry). Butsee Kentucky v. King, noted above, which expressly abrogates this opinion.United States v. Collins, 510 F.3d 697 (7th Cir. 2007)The police (who did not have a search warrant) knocked on the defendant’s door and after 20 seconds, heard someone inside say, “The police are at the door.”