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At what point do provisions of registration laws violate the 4th Amendment?
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1-3-2006 National:
U.S. Constitution: Amendment IV (and State Equivalents) |
.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 upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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: From Findlaw.com
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.Registration laws are evolving to a point that they are encroaching into lives of those registered and their family, more and more as each day passes.
Accordingly, we are starting a focused probe into how various constitutional provisions are violated (by an existing law) or might be violated (by a proposed law); registration laws or laws that flow from them. ex: residency laws flow from registration laws, or from a prior sex conviction.
We thought the 4th Amendment might be a good place to start. I have always likened this Amendment to a bubble around a person preventing the government from coming any closer without probable cause.
So, in the context of our probe, are their provisions of registration laws that permit authorities, in some way, to penetrate the bubble without that registrant's prior knowledge and approval?
Describe the scenario (the set of circumstances) that takes place (under a current law), or that would likely take place (for a newly proposed law), to show how the 4th is likely violated without the registrant's prior knowledge and approval.
Obviously, if the registrant is committing, or has committed, some crime that allows authorities entry, such a scenario would be excluded from our discussion. i.e., if a registrant is holding a hostage inside the registrant's home and a SWAT team is waiting to get in, they are going to bust in at first opportunity and such would be legal and excluded from our probe.
Unfortunately if a RSO is on parole, probation or supervised release the authorities are permitted access to the bubble to some extent by virtue of that supervision. These folks MAY still have issues. However, we would have to analyze each scenario to see if a violation exists, but that is what this probe is for.
So, we are asking readers to begin thinking about the 4th amendment (underlined portion) and any provision of a registration law, state or federal, which forces the RSO to do something that would then allow authorities to bypass probable cause requirements, and allows authorities access to the RSO's person, house, papers, or effects.
Lets see what readers come up with, and we will post any actual, or possible (for proposed laws) violations on a new page dedicated to this probe. We will not post who said what, the state, or cite specific facts that would reveal the reader's name, to preserve anonymity. Hopefully we can provoke lawyers with new ways to attack registration laws.
So, e-mail me with your comments, and thanks for participating.
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UPDATE: Readers have submitted excellent examples below! |
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Scenario: |
Police performing an address verification at a registered sex offender's home |
Readers Experiences: I was surprised how many folks mentioned many of these facts even before I began the "Probing the Limits" series. I have combined facts from more than one report into this one scenario. I do want readers to know every fact didn't occur in each case reported, however, there does appear to be a violation in each reader's report.
Accordingly, the police appear at the RSO's home and ask to come in to verify the registration information. Once inside the home, apartment or house, if there are other persons present the police begin to ask who they are and ask them for some form of ID. Police have even asked juveniles present if their parents are present or know they are there.
The RSO is usually asked for some form of identification to prove who s/he is and usually it is a driver's license or state ID. The police then procede to verify the registration information, and if anyone else is within earshot they get to hear everything.
Example: The facts here come directly from readers' experiences. I doubt I will be able to find a news report but will keep looking for something, there was one in Florida which had two of the facts above but right now I cannot find it.
eAdvocate's Comments:
The very first point to keep in mind is, the police come to a RSO's home to do one thing "Verify the address listed on the registry," and nothing else. The laws which permit actually require police to verify addresses, only permit that specific function: verify address. I have not seen any law which permits verifying anything else that the RSO has submitted when registering. Police may interpret that law differently, but in court they would have to prove doing anything beyond that.
First it must be pointed out that, once the RSO gives the police permission to enter the home, many 4th Amend. rights disappear. Further concerns are, once the police are in the home, what else could they see and construe to be a crime, a risk RSOs take if they permit police to enter home. Simple address verification can take place outside the home.
Next is the questioning of other folks the police see in the home, the police have no right to do that and it violates rights of those folks. Remember, these people are inside a home, a place where police lose many of their rights excepting if they see a crime (or alleged crime) in progress or construe something as being criminal.
Now a subtle issue about what RSO information the police want to verify, simple address then there is no issue. However, if the police attempt to verify other information which the RSO has provided when s/he registered, there may be a serious problem. First, if their purpose is address verification there is no need to go further.
Some of the registration information is PRIVATE and the law prevents it from being disclosed. Should the police attempt verbal verification within earshot of another person/s then they have violated the RSO's guaranteed PRIVACY rights under the registration laws.
While I do think address verification should take place outside of the home, I also realize that there it may be within earshot of neighbors, say in an apartment complex, etc. So, the RSO must find a way to maintain his privacy and keep the police at bay. What is good for the goose may not be good for the gander.
Time of Address Verification: Here is a sticky issue because the registration laws make no mention of time as to time of day. We have reports that police are doing this at -middle of the night hours- which clearly is harassment. Where that is happening RSOs need to file complaints with supervisors. If it continues then it clearly could be construed to be stalking under federal laws, hence a 1983 court action (a whole other issue).
It has also been reported that police are making appointments and requiring folks to stay home until they come which could be hours after the appointment. Again, a form of harassment, and costs the RSO both financially and possibly loss of job. These are actionable points for a 1983 federal court lawsuit.
Finally, the intent of this project is to identify issues and try to show it is occurring, not to resolve reported violations, that is for the courts.
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Scenario: |
A child is reported missing in the general vicinity of registered sex offenders' homes. |
Our Reader's Experience: Following a report of a missing child the police appeared at the door of a registered sex offender's (RSO) home in Gestapho fashion asking to search the home. When told that the person answering the door (a RSO who was not under any form of state supervision) could not give them authority to do so, verbal Gestapho like tactics then ensued. Reluctantly the Gestapho was admitted, which amounted to consent -err coerced consent--, and of course nothing was found. What occurred when they left was more interesting, they never went to any other home except another RSO's home. Clearly they were targeting RSOs only.
Example: California: "Stockton girl, 12, missing" "... Police searched nearby fields, train tracks and parks looking for Elia. They asked about friends in the area and checked the homes of registered sex offenders in the area. ... Her disappearance did not fit the conditions for issuing an Amber Alert, a state and nationwide program for notifying law enforcement and the public about a child abduction. To qualify for an Amber Alert, someone has to see a child being abducted or have reason to believe the child is in immediate danger, Smith said."
"Back at home, fifth-grader shares details of 35-hour disappearance" "Fifth-grader Elia Sarah Nuñez said she was feeling "stress" when she decided to take a walk that turned into a 35-hour odyssey this week. She said she kept thinking she could find her own way home but walked at least 20 miles over nearly two days through Stockton neighborhoods before she found help. ... She felt exhilarated at first, she said, in time realizing she was lost. As time passed and she could not find her way home, she became scared and started asking people for directions. "People seemed dumbfounded or something. They were too much in a hurry" to talk, she said. ... When it got dark and cold, she found an abandoned house. She does not know where it was but remembers little "moats" around it. ..."
Example: Wisconsin: "Search for missing boys intensifies" "... As the families asked the public for help, Angela Virginia asked why police didn't activate an Amber Alert. Schwartz explained to reporters earlier that the situation did not qualify for an alert under state guidelines that say police must believe a child is in imminent danger and have a suspect or vehicle description to broadcast.
When they didn't surface, a door-to-door canvass was done late Monday and early Tuesday, he said. More steps were taken throughout Tuesday, including locating all registered sex offenders in the area and searching their homes. The department frequently gets reports of missing children. Last year, there were 4,625 reports of missing children and 962 so far this year, Schwartz said. The overwhelming majority of them return home safely."
"Two missing Wis. boys apparently drowned" "The families of Purvis Virginia Parker and Quadrevion Henning finally know what happened to the boys, nearly a month after they disappeared. It was neither the nightmare of evil suffering they had feared, nor anything close to a fully answered prayer. The bodies of Purvis, 11, and Quadrevion, 12, were found in a park lagoon on an unseasonably warm evening Friday. They weren’t far from the basketball court they had been headed for on the icy afternoon March 19 when they were last seen. Police said Saturday that the boys accidentally drowned. They speculate that Purvis, who could not swim, somehow fell in and that Quadrevion, a strong swimmer, jumped in to try to save his good friend. ..."
U.S. Supreme Court on Searches: "Bill of Rights puts limits on searches" "After the news that Destiny Norton's body was found at a neighbor's residence, anger and questions by close friends of her parents boiled over: Why didn't the police look harder? One local law professor said, simply put, the law was not entirely on the side of police to allow them to seek a search warrant when Craig Roger Gregerson reportedly denied a police request to further search his place for signs of Destiny.
University of Utah law professor Erik Luna said the U.S. Supreme Court has yet to address the issue of just how far police can cite "exigent" or emergency circumstances to skirt the Fourth Amendment right against unlawful search and seizure in the quest to find a missing child. While public criticism directed at police has suggested officers should have searched through "every inch" of each house in the area — regardless of consent — the risk is that any evidence that was found would have been thrown out of court later.
Luna said the biggest tool police had was asking residents to consent voluntarily to a search of their homes. "Consent is kind of this grand exception to the Fourth Amendment," Luna said. "You can consent to anything as long as it's knowing." But if a person declines to consent to a search, the law states that cannot be used as sole probable cause to get a warrant. "If a person says 'no,' does that provide you with a basis to do what he says you can't do?" Luna asked.
Normally no, but Luna said in the context of a missing child, time can be of the essence to the point that police could have sought a search warrant from a judge to search Gregerson's residence. Statistics show that the survival rate of an abducted child after the first 24 hours is about 1 percent.
eAdvocate's Comments:
There is no doubt that every RSO cringes when they hear of a missing child knowing full well they become the "FIRST TARGET of SUSPICION." Accordingly, RSOs want these kids found, and whoever the cause is to be prosecuted. Those perpetrators are causing the infringment into the lives of RSOs and their families!
The issue is, are RSO's 4th Amend rights being violated? It certainly appears to be the case at least as reported by the examples, and there are others. So, do RSOs have a choice, yes, say no. That is the only way to stop the wholesale violations that are occuring. Saying no will cause police to develop another method.
What concerns me most is, once the police are in the home of a RSO, what else could they see which could be construed to be a crime, a risk RSOs take if they consent to a home search.
However, the intent of this project is to identify the issue and show it is occurring, not to resolve reported violations that is for the courts. I doubt anyone can claim that rights are not being violated, unless they ignore facts shown in the examples.
Never forget the essence of the following article when police come to your door:
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8-18-2006 Kentucky:
Ky. court will consider if police can lie |
.When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he'd heard drugs were being sold, he knew the occupants probably wouldn't consent to a search if he said he was looking for narcotics. So he lied.
He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave. Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl "Fritz" Krause III. "I was outraged," recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. "You would think you could trust authorities to tell you the truth."
Police can lie and deceive suspects as long as their deceit doesn't "shock the conscience of the court or the community," based on "the totality of the circumstances," the U.S. Supreme Court has said. Court rulings have found, for example, that police can:
Falsely tell a homicide suspect that an accomplice already has been implicated in the killing. (U.S. Supreme Court, 1969). Pretend to be a jail inmate to get a prisoner to confess to a homicide. But state and federal appeals courts have placed some restrictions on some police ruses and said that police cannot:
Fabricate an audiotape from a witness to induce a confession. (New Jersey Supreme Court, 2003). Say they want a blood sample to determine its alcohol content, for use in a drunken driving case, then use it to prosecute another crime. (5th U.S. Circuit Court of Appeals, 1970) Say they need to come into an apartment to investigate a gas leak, making it appear that a refusal would put life and property in great danger. (New York State Court of Appeals, 1973)
NOTE: Decisions from other states and circuits are not binding in Kentucky
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Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia -- but on the condition he could challenge the legality of the search. Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant's consent to a search can ever be "voluntary" -- as required for a search without a warrant -- when it is the product of a police officer's deceit and misrepresentation. Courts have long held that police may try to trick suspects during interrogations -- by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.
But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive. "Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself," said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures. Ruse raises questions. In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.
But Clymer said the ruse raised "serious constitutional questions" and was "not an appropriate police practice." Dissenting from a 2-1 decision affirming Clymer's decision, Chief Court of Appeals Judge Sara Combs called the deception "a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures." Manar, who acknowledged in court that he made up the story to get into Krause's home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn't comment on the court case, citing bureau policy. A state police spokesman, Sgt. Phil Crumpton, said the department also couldn't comment, because of the appeal.
But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that "ruses are a sometimes necessary element of police work." In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter -- and a self-addressed, stamped envelope -- from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample. "You kind of wince a bit and it's not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes," said Louisville Metro Louisville Police Detective Larry Duncan. "I refer to it as a little white lie."
But police commanders say deception can backfire. "If you tell a suspect you've got his prints and he knows he wore gloves" when committing the crime, "he knows you're lying, and you lose any rapport you've build up with him" said metro police Capt. Donald Burbrink. Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking -- because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible. Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don't do it.
Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given "freely and voluntarily." FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, "our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house." Searching for drugs the events leading to Krause's conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause's roommate, Joe Yamada.
Manar knew he didn't have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar -- he wasn't sure which -- that a girl claimed she had been assaulted and that the assault took place at their house. "I thought that would ease his mind a little more than confronting him with the drugs," Manar said. Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room. Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn't join the appeal, was placed on probation for three years, and Krause for 2½.
Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because "the right to be secure in your own home has gone out the window." His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians. "If the court upholds this decision," he said, "the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there."
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: by Andrew Wolfson awolfson@courier-journal.com
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