Trojan Horses and Taking Children:
New Tools of Law Enforcement Revealed
|I read a new case this week, decided by the United States
Court of Appeals for the Sixth Circuit, which decides law for Ohio, Kentucky,
Michigan and Tennessee. I also ran across a new Statute passed into law
by the Ohio Legislature last year, and hidden away in an Amendment to the
Child Endangering Statute.
Both need to experience the light of public scrutiny. First, the case of United States v. Yoon, 398 F.3d 802 (6th Cir. 2005).
The United States Court of Appeals for the Sixth Circuit adopted a line of case law from the Seventh Circuit Court of Appeals which permits a non-police officer informant, who is invited into your home and who sees evidence of anything illegal, to summon police officers inside to assist in arresting you or searching your home. This has been labeled "The Doctrine of Consent Once Removed." This doctrine allows the police to seize anything in plain view or conduct a protective sweep of the area, without a Search Warrant, but prohibits entry into areas of the home the informant was not invited to enter by you.
In this case, the civilian informant was some schmuck turned snitch who had known Mr. Yoon for a while. He dropped by to "visit" his "friend." While in Mr. Yoon's home, the informant saw bags of marijuana and cocaine. He reached in his pocket and hit a secret transmitter button sending a signal to the police waiting outside. The police burst through the door and seized the marijuana and cocaine. They arrested and charged Mr. Yoon with possession with intent to distribute. The Court has ruled the police did not need a Search Warrant because Mr. Yoon had "consented" to the search of his home when he had invited the unknown police informant inside...
So let's take a moment and look at the real life practical aspects of this new tool of oppression. Before this case, it had to be a sworn officer of the law you let into your home before it waived your 4th Amendment right to be free from unreasonable searches and seizures in the privacy of your home, without the government first establishing probable cause before an impartial judge and obtaining a Warrant to search your home. You had to be stupid enough to let a cop into your house and do or show him something illegal. Now it can be anybody, even an old friend turned informant.
So there you are on a Sunday afternoon, sitting at home playing on your computer. You've been downloading some songs. A knock comes from your front door. You get up and look through the window to see who is there. Lord have mercy, it's Larry. You haven't seen him since last year at the St. Patty's party where the two of you got wasted, hooked up with two fine looking ladies and couldn't be found for the next three days. Good party.
Now, maybe you've been picking up a little cash on the side. You know, a couple of friends stop by, and you sell them a couple of CD's. A couple of years ago you found out people like your mix. You're not warehousing them, but you keep a few extra around to sell when somebody asks. It puts a few extra bucks in your pocket and pays for software. No big deal.
But one of your neighbors is pissed off at you because your trash blew in her yard and you had words with one of her kids. So she dropped a dime on you.
A month or so after you saw Larry last year, he was busted selling stolen property. The police turned him out and now he works for them to keep from doing time. They know he knows you, and hung out with you for a while, from the debriefing they did of him to find out the people he knows and if he was worth their time to work with. When the dime was dropped, your name and his name hit as a match in the computer.
Opening the door, you invite Larry in and go to the kitchen to get him a beer. While you're gone Larry sits down and makes himself at home, looking through your CD collection. You start talking about old times and he tells you about how well he has been doing at his new job. An hour or so later he asks if you have a couple CD's he can buy. You say sure and walk over to the cabinet to get some you keep around to sell.
Larry hits the button in his pocket as you turn your back to him. When you turn back, the police are crashing through the door, you are on your face in the carpet, your hands are cuffed behind your back, and you are under arrest for pirating copyrighted songs.
A couple of months, and several thousand dollars in attorney fees later, you go to court on a Motion to Suppress the Evidence due to the Warrantless Search of your home. The Judge pulls out a copy of United States v. Yoon and informs you consent for the FBI to enter your home and search it was given by you when you invited Larry to enter your home, waiving your right to be free from unreasonable searches and seizures under the 4th Amendment. So what's wrong with this? How does it differ from sending an informant into your house to make a buy, then using the buy to get an arrest warrant, and then using your arrest to justify a Search Warrant for your home?
First, it bypasses the scrutiny by a Judge of the credibility of the informant's information supplied in the Probable Cause Affidavit required to be attached to the police request for a Search Warrant to issue, and the probable cause needed established by the 4th Amendment before your home can be invaded. See, Wong Sun v. U.S., 83 S.Ct. 407 (1963).
Second, it avoids the requirement a Probable Cause Affidavit requesting a Search Warrant be specific as to the items being searched for in the home. The "search" being conducted by the informant is more in the nature of a "General" search being conducted by proxy and prohibited by law. See, Anderson v. Maryland, 96 S.Ct. 2737 (1976); U.S. v. Mathison, 157 F.3d 541 (8th Cir. 1998) (...general, exploratory rummaging of a person's property prohibited). Anything found in your house is fair game.
Third, it places the "cart before the horse." The informant is being sent into your home to conduct a general search for illegal activity and is acting as an agent of the State. Obviously the police did not have "probable cause" to search your home before the agent was sent in, or they would have dispensed with the informant and simply obtained a Search Warrant upon presenting an Affidavit of Probable Cause. Probable Cause must exist before the search is conducted. See, Parkhurst v. Trapp, 77 F.3d 707 (3rd Cir. 1996) (Unlawful search can never-be justified by its fruits); U.S. v. Davis, 270 F.3d 977 (D.C. Cir. 2001) (Search and seizure cannot be justified on 4th Amendment challenge by its success).
Fourth, the police are prohibited from creating "exigent circumstances" to justify a warrantless search. The "exigency," in this circumstance, is the informant being in the immediate presence of the illegal evidence, which the police argue could be destroyed if the informant leaves and time is taken to have an affidavit executed in support of an application for a Search Warrant. Yet the police are responsible for placing the informant in your home and with the evidence. The police created this "exigent circumstance," which is then argued to justify the warrantless entry into the home. See, U.S. v. Flowers, 336 F.3d 1222 (l0th Cir. 2003) (Police are not free to create exigencies to justify warrantless intrusions into homes); U.S. v. Rodea, 102 F.3d 1401 (5th Cir. 1996).
Fifth, the police using a supposed friend of yours to gain entry into your home by proxy circumvents your right to make an informed decision to refuse consent to search your home, and to refuse to provide information to the police. See, Brown v. Texas, 99 S.Ct. 2637 (1979) (people are entitled to refuse to provide information to the police); Whalen v. Roe, 97 S.Ct. 869 (1977) (Constitution protects individuals against invasion of their privacy by the government).
Sixth, a police officer might actually tell the truth about which areas of your home you invited him to peruse. An informant, under pressure to provide good results, and already a Felon anyway, will be tempted to tell the police you allowed him access to more of your home than you did. This will permit the search and seizure of items from areas of the home which an undercover officer, bound by his oath, may prevent the police from searching. At least with a sworn officer of the law, acting undercover, you have a chance of getting an "honest cop." With an informant determining the parameters of the search, you have an individual with a vested interest in producing as big of a bust as he can obtain. This raises a great danger of informant initiated searches which will exceed what is allowed by law. See, Thompson v. Louisiana, 105 S.Ct. 409 (1984) (Crime evidence in one room of a home does not warrant a general search of the whole house).
By allowing "consent once removed," given by an agent of the government who is sent into your home to conduct a general search for illegal activity, and using "Larry's" call for "assistance" as "exigent circumstances" justifying a warrantless entry of your home, the police have totally circumvented the protections of the 4th Amendment intended by the Founding Fathers when they embedded the 4th Amendment in the Bill of Rights.
It is my belief, provided I am not standing in the window of my home shooting at people, the police have no right to enter my home without "probable cause" that exists before they request to enter. It is my belief the requirement that police tell arrestees of their right to remain silent, should be extended to require a warning be given to you of your right to refuse the entry into your home of the police or an informant seeking to gather information about you. The only exception to this would be if they already had an Arrest Warrant or Search Warrant in their possession, or had Probable Cause to believe someone's life is in danger in your home.
But as it stands now they can send any old friend into your home and use you inviting them into your home as a waiver of your rights under the 4th Amendment. As it stands now, you not only have to run a background check on the people you date, but any "old friend" who shows up unexpectedly. Since it is doubtful if any "Red Flag" will appear on the Internet telling you "Larry" is a police informant, you have to call Larry's friends, and any of your friends who might see him frequently, before you can let him in your door. Unless, of course, you wish to chance waving your 4th Amendment rights protecting you from Search and Seizure in the Privacy of your home.
Maybe we all need to put Drive-Up windows on the side of our house so anyone not expected or known well by us can conduct visits through a loudspeaker until we can confirm they are not pseudo government agents.
What a damn shame this country has come to using our old friends or acquaintances as Trojan Horses to circumvent our Constitutional rights.
The second part of this comment on the state of Freedom in America comes from a new law which allows the police to seize your children and charge you with Child Endangering for minding your own business.
Ohio Revised Code §2919.22(B)(6), effective August 11,2004, states:
Plain English? If you live in the projects, and someone is growing dope in their closet, or has in their apartment any one chemical that can be used to manufacture meth, within one hundred feet of your crib, the police and Children's Services can take your children and arrest you for Child Endangering. But if you own your home, and your neighbor owns his home, because you are not on the same piece of "real property," he can grow all the dope he wants to, or possess all the chemicals he wants to, without you being charged or losing your children.
The mens rea, or mental element of this crime, is "knowingly." Think about that for a moment. Have you ever tried to prove you didn't "know" something?? You have to prove a negative, which is virtually impossible, when all the State has to do is provide "circumstantial evidence" from which a "reasonable juror could conclude" you did know your neighbor was growing marijuana in his apartment, or had a chemical used in the production of meth in his apartment.
The prosecutor will parade a dozen police officers, or "Larry's," onto the witness stand to detail their investigation of your neighbor. They will make it look to the jury like only a total idiot would not have "known" your neighbor was growing marijuana, or planning to make meth, while wringing their hands because they did not have enough evidence to prosecute him, because "people like the defendant" would not come forward and give them the information they needed. Get the picture?
Now if this isn't a discriminatory law, targeted towards the poorest and least fortunate of our society, who are forced to live in large housing projects or crowded inner-city apartment complexes, I don't know what is. It is designed to force you to spy on your neighbors and force your neighbors to spy on you, but only if you live in an apartment complex or housing project. It violates the Equal Protection Clause of the 14th Amendment.
This is crazy. Because you can't afford to own your own home, the police are going to hold you responsible because your low-life neighbor is growing reefer in his apartment. And further, the police are going to hold you responsible to the point of Children's Services coming into your home and taking your children away from you--then sending you to prison!
How can the government take your children from you because they suspect someone within a 100 feet of your home has one of many different chemicals, or had a few plants in his closet, maybe, at some time while you lived in that area? (Bear in mind Felonies have a six (6) year Statute of Limitations for prosecution). The Statute doesn't even require the prosecution or conviction of a neighbor! I would assume if they were not prosecuted, that Privacy Laws would prevent the police from even telling you who they were without fear of being sued for slander, defamation of character, or libel, if they were stupid enough to put it in writing.
I can just picture the Indictment filed against someone accused of violating this law. It would read something like this:
What is on these people's mind when they pass laws like this??? This is a Third Degree Felony, for God's sake, that costs people their children! And it is a Second Degree Felony if the person charged has any prior convictions. Are they insane? How are you supposed to police your neighbors and know what they have in their closet or medicine cabinet, somewhere within 100 feet of your apartment? (Without getting shot). Do you peep in their windows? Or maybe you're supposed to pat them down or search their car once a week. ("Hey dude. What's in the bag?"). And what do you do if you suspect someone is growing dope within 100 feet of your apartment? Let the police come take your children and put you and your old man in jail? Or do you call 1-800-SNITCH, find out you're wrong, and watch the whole neighborhood fall apart with everyone suspicious that everyone else was the one who made the call? What do you do when your neighbor shoots someone else for the call you made?
Senator Jacobson sponsored this bill. If I were you I'd call Columbus and ask him if he's ever been in the projects, or has any touch with reality. Then I'd set up a picket-line in front of the Capitol. See, Ohio Senate Bill 58, 125th General Assembly. (2004).
All them "liberals" ain't looking so bad right now, are they?
Until next time, this is Jim Love reporting From The Front Line.
James Love. All Rights Reserved.
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