3rd Circuit Court Puts Some Brakes On Warrantless Actions

3rd Circuit Weighs In on Warrantless Searches
Shannon P. Duffy
The Legal Intelligencer 02-15-2006

"Police may not "manufacture" an emergency situation to justify the warrantless search of a hotel room, a divided panel of the 3rd U.S. Circuit Court of Appeals has ruled."

Can we apply this to the NSA? Can we argue that the federal government, led by George W. Bush, cannot manufacture a continual environment of fear to justify NSA spying programs that do not produce results but does invade the privacy and rights of over 325,000 people?

"The decision in United States v. Coles overturns a conviction for possession of crack cocaine and sharpens a split among the federal circuits in cases where police claim that a warrantless search was justified by 'exigent circumstances.'"
We have had many judicial scholars ask the question, "How do we assure that exigent circumstances exist except to take the word of the police?" For decades we have had panels investigating police misconduct. Those of us old enough can remember the Knapp Commission. A Yahoo! or Google search on "police corruption" and "United States" will result in over 220 thousand hits.

"Prosecutors argued that the search of Terrence Coles' hotel room was valid because police heard rustling sounds and a flushing toilet soon after they announced their presence and therefore feared that evidence was being destroyed. But defense attorney Jeffrey M. Lindy urged the court to focus on earlier events and argued that the police had no excuse for failing to obtain a warrant prior to approaching the hotel door in the first place."

A warrant? What a concept!

"Voting 2-1, the court agreed with Lindy and held that the investigative tactics used by the officers had 'impermissibly manufactured the exigency.' Senior U.S. Circuit Judge Leonard I. Garth noted that the agents at first used 'subterfuge' to gain entry to the hotel room by falsely claiming they were 'room service,' and later that they were maintenance workers sent to fix a leak. It was only after those two attempts failed, Garth noted, that the officers identified themselves as police and then heard the toilet flushing."

So, basically the court is saying that the police have to have probable cause, submit evidence for a warrant and follow due process. I just wonder what the grounds were for the dissenting vote.

"But in dissent, 3rd Circuit Judge Jane R. Roth complained that the majority was misreading a U.S. Supreme Court decision and that its holding 'imposes a standard for police behavior that is not derived from the Constitution.'"

Judge Roth is a Republican (not surprising) appointed to the bench by George H.W. Bush. She is also no stranger to ruling against civil rights:

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Judge Roth, in the Rhenquist tradition, is no in favor of recusing herself due to conflicts of interest:

"Judge Rendell is not the only Third Circuit judge who is the spouse of a former politician. The Third Circuit's Web site does not indicate whether Circuit Judge Jane R. Roth follows a similar recusal policy with respect to parties and law firms that contributed to the campaign of former U.S. Senator William V. Roth, Jr. The identities of contributors to federal senatorial campaigns are available over the Internet from the Federal Election Commission (http://www.fec.gov/)."

"Roth said she would have upheld the search because none of the actions by police had violated the Fourth Amendment prior to their hearing the flushing toilet."

But doesn't barging into the privacy of a hotel room without compelling interest, probable cause or genuine exigent circumstances breach the Fourth Amendment? Anyone want to bet that this lady has dinner with Justices Scalia, Thomas and Alito often?

The argument that rustling papers and a flushing toilet doesn't cut it. This caxse also rests on the doctrine called the "fruit of the poisonous tree".

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