5th Circuit gives police new power in searches - Warrant unneeded in some instances

Associated Press
Houston Chronicle


NEW ORLEANS -- A federal appeals court has opened the door for police in Texas and two other states to search residences and buildings for evidence without a warrant -- a ruling strongly criticized by two dissenting justices.

The 5th U.S. Circuit Court of Appeals ruled police do not need an arrest or search warrant to conduct a swift sweep of private property to ensure their safety.

Evidence found in that search is admissible if the search is a "cursory inspection" and if police entered for a legitimate purpose and believed it may be dangerous.

The 11-4 ruling affects Louisiana, Texas and Mississippi and replaces a standard set in 1994, when the 5th Circuit held that police can make a so-called protective sweep only if officers are there to arrest someone. In the majority opinion, Judge William Lockhart Garwood wrote that any in-home encounter poses a risk to police officers, even if it is simply to interview someone.

Houston Police Chief Harold Hurtt wasn't available for comment, department spokeswoman Sandra Aponte said.

The opinion noted that a similar standard has been adopted by four other federal circuit courts of appeals.

The American Civil Liberties Union called the decision dangerous.

"This decision is the latest rollback of safeguards to protect the people from being at the mercy of a police state," said Joe Cook, executive director of the ACLU of Louisiana. "Allowing law enforcement to search homes without probable cause or any warrant makes a dramatic and dangerous departure from one of our most fundamental American freedoms."

The decision came in the case of Kelly Donald Gould, a Denham Springs, La., man arrested in October 2000 on federal gun charges and accused of threatening to kill judges and police.

Deputies went to Gould's trailer with no warrant but were invited in by another resident, who told them Gould was in the bedroom.

Because of the threats and Gould's criminal history, the deputies said, they looked for him under the bed and in two closets, where they found three rifles. They later found Gould in the woods and seized the weapons after they got him to sign a permission for the search.

U.S. District Judge James Brady ruled the guns could not be evidence because they were obtained illegally. A three-judge panel of the 5th Circuit upheld that decision but told prosecutors to request a hearing before the court to reconsider the precedent on which it was based.

Dissenters said the ruling makes an exception to constitutional protections against unlawful search and seizure.

"I have no doubt that the deputy sheriffs believed they were acting reasonably and with good intentions," Judges Harold DeMoss Jr. and Carl E. Stewart wrote. "But the old adage warns us that `The road to hell is paved with good intentions.' "

U.S. Attorney David Dugas of Baton Rouge said the case illustrates the "difficult situations" officers often face.

"They're expected to make split-second decisions in potentially dangerous situations involving constitutional issues that the courts and legal scholars can spend years debating," Dugas said.

But Mike Walsh, a defense attorney, said the 5th Circuit decision "grossly expands" the definition of lawful searches and erodes constitutional rights.



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