Tuesday, September 07, 2010

This Just In!!!!! Sixth Circuit finds police CANNOT enter private residence without permission or probable cause!!!

On September 2, 2010, the Court found suppressible evidence obtained where police officers, without a warrant, probable cause, or permission entered a private building by kicking in the back door. In United States v. Kimber, 10a0583n.06, officers, on routine patrol, came upon a private apartment building, which they knew in general was a "hot spot" for criminal activity. The building was protected by a keyed entry system. Officers did not have key access; however, undeterred, officers forced the back door of the property open. After entering the lobby area, the defendant, Mr. Kimber, entered the building, using a valid key. Upon seeing the officers, he turned around to leave; however, officers detained him, frisked him, and found a weapon.

In attempting to rationalize their breaking and entering of the building, officers contended that they had received from the owner of the building a "trespassing letter", which allowed them permission to be on the property. Unfortunately, the letter was dated two months after the defendant's arrest, and the letter did not cover forcible entry. Thus, the Court found this argument to be unavailing. The court also found unimpressive a letter dated two years previous to the arrest, as it was issued by a former owner of the property.

The Government also argued that because the rear door of the building was easily accessible by shoving or kicking the door, that the defendant (and presumably other tenants of the building) had no real reasonable expectation of privacy. The court disagreed with this position, finding "
the appropriate inquiry was not whether it was physically possible for an officer to gain entry, but rather, whether the tenant would have expected him to do so and whether society would regard such expectation as reasonable." The Court therefore reversed the decision of the district court, vacated the conditional plea, and remanded the case for suppression of the evidence as the entry to the property violative of the Fourth Amendment.

Nice to see that the Court still provides reasonable restrictions on police intrusions onto private property. Kudos to AFPD Jim Maus (Southern District of Ohio) on a job well done!

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