5th Circuit v. Fourth Amendment

The federal appeals court gives law enforcement broad leeway for searches

In a March 24 ruling, a majority of the full bench of the U.S. 5th Circuit Court of Appeals ruled that police do not need an arrest or search warrant to conduct a search when it is intended as a "protective sweep," designed to ensure the safety of law enforcement officers. The controversial ruling comes from the case of Donald Gould, arrested in Louisiana in October 2000 on federal firearms charges after one of his employees contacted local sheriff's deputies to warn them that Gould had threatened to kill judges and police and that he had a cache of firearms.

The cops checked Gould's record, found he had a violent history, and went to his trailer, without a warrant, to talk to him. Someone invited them inside and told them that Gould was in his bedroom. But Gould was not there and, saying they feared for their safety, the deputies conducted a search of the trailer, where they found three rifles in a closet. The deputies later arrested Gould outside in some woods behind the trailer. Gould was charged and convicted as a felon in possession of a firearm, based on the rifles the deputies found in their search.

Although Gould argued successfully, in both federal district court and before a three-judge panel of the 5th Circuit (which handles cases from Texas, Louisiana, Mississippi, and Oklahoma), that his conviction was based on the fruits of an illegal search, that decision was overturned last month after prosecutors secured review by the full appellate court. In 1990, the U.S. Supreme Court ruled that so-called protective sweeps can be compatible with the Fourth Amendment – if they intended to protect an officer during an arrest. The latest decision, however, allows officers to conduct a "cursory inspection" without a warrant and without any intention of effecting an arrest. According to the majority opinion, "a protective sweep ... need not always be incident to an arrest."

But the sweeping decision sparked forceful dissent from several justices. "Take away the Fourth Amendment and the right of privacy disappears," wrote Justice Harold DeMoss Jr. "I have no doubt that the [police in the Gould case] believed that they were acting reasonably and with good intentions. But the old adage warns us that 'the road to hell is paved with good intentions.' In my view the gambit of getting permission to enter a citizen's home in order to talk to someone and then conducting a protective sweep search under the guise of sensing danger to the investigating officer will effectively eliminate the need for complying with the Fourth Amendment and at that point we will all be, literally and figuratively, on the road to hell."

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Fifth Circuit, Donald Gould, protective sweep, Harold deMoss, Fourth Amendment

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