I ate my wafer...


Jake has requested an analysis of U.S. v. Gould:

Quick Recap:

One of Mr. Gould's employees goes to the police to snitch on his boss for plotting to murder judges and police offices, (and destroy power transformers). The threat appears to be collarborated. The police run a quick computer search and discover that Mr. Gould is a repeat violent felon...so they send two officers to his trailer to interview him (w/o a warrant). A housemate answers the door, says that he was probably asleep in the trailer. The police ask the housemate if they can go inside and look for him, he agrees, so the officers go inside, and start looking for Gould. They decide that given the situation, they will do a protective sweep (they look around for both Gould, and anything dangerous to them). They don't find him, but notice three guns in a closet, and hear someone outside yell that Gould snuck out the back. The police officers then grab him, and put him in the police cruiser, at which point they ask him about the guns, and ask if he will consent to a search. He not only verbally consents, but SIGNS A WAIVER. They search the house thoroughly, and indict Gould for 18 U.S.C. ยง 922(g)(1) (Convicted Felon in Possesion of a Firearm). The district court throws out the evidence...then on appeal, the appellate court rules that the District court screwed up by using dicta (stuff a court says that isn't binding) from a previous case where, in the dicta, it is said that only protective searches during an arrest are admissible.

What I think:

Well, in this case, Gould royally screwed himself by signing the waiver. Without it, the officers would have had great cause to get a warrant...even if they hadn't seen the guns, since the man is a convicted violent felon and he tried to run away, in combination with the snitch's collaborated testimony , they would have gotten a warrant. But, they would have had to get it for everything to be Kosher. Even after this ruling, they still need a warrant in that situation.

Certainly, on the face, the decision leaves open opportunities for abuse of the "officer safety" exceptions. I'm not horribly afraid of that, as I think that trial courts will continue to interpret the exception narrowly. In a case such as this, where the police officers had about enough material for an arrest warrant anyway, and they likely did feel a legit safety issue, it doesn't bother me to allow a quick sweep. If the trial courts start interpreting the exception too loosely, it would be a different matter, but as I read this case, they would be reaching to do so.

This, in case anyone hasn't noticed is yet another example of why I advise everyone, no matter what the situation, to refuse permission for searches. I frankly wish that it was a Miranda-type warning that was given during traffic stops.

In a perfect world, it would read something like this:

"I would like to ask you to consent to a voluntary search of your car/house/business/shed/truck/camel, you must be made aware that you can refuse permission, and your refusal cannot be held against you. In fact, if you do not refuse, nothing about this search can be contested later, and your attorney will likely wish to cause you intense pain."