Nov
05

New Haven's Aborted Assault on Fourth Amendment

At the end of a long day, the last face I expect to see, tucking me in and whispering endearments, is that of New Haven Police Chief Dean Esserman. But perhaps that will change some day. Dean cares about me, you see. He cares about all of us. He cares so much about us he wanted to permit officers to steal from us in the name of community safety.

NYou read that right.

New Haven municipal spokesman Laurence Grotheer was all smiles earlier this week. He announced that police officers spotting an unlocked car on city streets just might open the car to check for valuables. If they found something, a laptop computer, for example, they’d take it out of the car, and leave you a note telling you which police property room you can go to in order to retrieve it.

Fourth Amendment be damned.

No sooner was the new pilot policy announced, than the city’s lawyer squashed it. That Chief Esserman, who prides himself on his law degree, ever thought this was a good idea is terrifying.

Grotheer justified this rape of privacy by stating it would be good for the community. Why, there’s a spike in car burglaries during the holidays. Officers will be combatting crime, removing temptation from cars before criminals can strike.

Seriously? Sometimes the criminals wear badges, it seems.

Once upon a time we took seriously limitations on the power of the government to search our property. The founders thought the topic so serious, so grave, that our federal constitution — the fundamental law of the land — prohibited “unreasonable searches and seizures.” Blood was shed in the colonies over the reach of governmental power.

Of course, “reasonable” is one of the law’s favorite weasel words. To Tories like Dean Esserman, there’s nothing unreasonable about a caretaker government. I’m betting he just loves to hum the old fundamentalist Christian camp tune “Trust and Obey,” too.

But for those of us unaccustomed to molestation as a form of governance, these new searches and seizures are an outrage. Once upon a time, the courts would also have been outraged.

There is a general presumption in the law that a search of person, a person’s home, a person’s car is unreasonable unless police officers have a warrant, signed by a judge, describing with particularity the area to be searched and the items searched for. These limitations were important to the framers of our Constitution. They were intended to counter Britain’s use of general warrants, permitting the king’s men to ransack at will and seemingly without limitation through homes.

Without the benefit of any constitutional amendment, without consulting lawmakers, the federal judiciary has carved out a series of exceptions to the warrant requirement that tend to emasculate the Fourth Amendment.

The rule of law requires umpires, but when the umpires suspend the rules, the game is rigged. In the case of the law of search and seizure, police officers win most of the time.

One exception to the search warrant requirement involves “community caretaking.” It is a close cousin to another exception, the so-called “exigent circumstances” exception.

Consider the following: A police officer walks down your street and sees your front door ajar. He sees a wisp of suspicious smoke snaking its way out the doorway; the smoke smells like an electrical fire. Can he enter without a warrant to see what is going on?

The presumption against warrantless entries would suggest not. But that might require him to stand by while your house burns down. Perhaps you are in the house, overcome by smoke, or ill health. 

The courts have determined that officers can enter without a warrant. There is probable cause, or good reason, to believe a potentially dangerous fire is at work. This exigent circumstance permits entry without a warrant.

But suppose the door is simply ajar? There is no smoke, no suspicious smell. What result?

Arguably, the community caretaking function might permit entry just to make sure everything is all right. A front door ajar in a densely populated urban area is sufficiently unusual to warrant a closer look. The result might be different in a rural community.

Does the community caretaking function justify entry into an unlocked car on a city street?

There is another exception to the warrant requirement: the “automobile exception.” Our courts have concluded that we have a diminished expectation of privacy in our cars. But for this exception to apply, police officers must have good reason to believe the car contains evidence of a crime. Among the reasons for permitting warrantless searches of cars is their mobility. The courts reason that the time it takes to get a search warrant signed by a judge might easily mean the car’s driver drives off, thus frustrating the officer’s efforts to collect evidence and combat crime.

New Haven’s aborted policy authorizing officers to check the inside of unlocked cars without any suspicion that the cars contain contraband or other evidence of a crime represents a troubling new hybrid exception to the warrant requirement: call it the “crime prevention” exception, a marriage of convenience of the community caretaking function and the automobile exceptio 

It is a shocking example of Tory paternalism. Police officers would have entered your unlocked car, rummaged around for valuables, removed the valuable from your car, stored the material in a police evidence room, and required you to come and get it. All this is the name of preventing crimes that have not yet occurred.

If this does not make your blood boil, you probably thought what was depicted in Steven Speilberg’s “Minority Report” was a good idea: arrest folks before they commit a crime.

This prophylactic enterprise by the New Haven police would certainly have spawned litigation. Why isn’t the chief checking in with the city’s lawyer before announcing half-baked new policies? Wake up, Dean. 

Dean Esserman tucking me in. The thought is chilling. So is the notion of a cop rifling through my car to protect me from myself.

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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