Thursday, August 28, 2014

U.S. v. Nora (9th Cir. - Aug. 28, 2014)

Two police officers are driving along doing their job and see three guys standing in front of a house in a high-crime area.  The officers have, I presume, a gut feeling and decide to pull up in front of the house and try to talk to the two guys.  Which is fine.  Consensual contact.

In the seconds it takes the officers to pull around and get in front of the house, two of the guys have moved to the porch of the house, and another's in its yard, which is surrounded by a fence.  Okay.  They apparently moved.

The police start chatting, and one of the guys looks nervous, and it seems like he's trying to keep his right side hidden from the cops.  Seconds into the conversation, that guy suddenly spins around and starts to run inside the house, pushing past one of the other dudes on the porch.  At which point the officers see that the guy's holding a blue-steel semiautomatic handgun in his right hand.  The officers scream "Stop, police," but the guy with the gun (and one of the guys on the porch) continue into the house and shut the door behind them.

Now what to do?

The police don't just go barging in.  But they have just seen a guy with a gun flee from the cops into a home.  That's potentially pretty serious, no?  They call for backup.  Twenty officers come.  The house is surrounded.  A police helicopter arrives as well.  Bright lights are pointed on the house, and there's a standoff for twenty to thirty minutes, as officers call for the occupants to exit with their hands up.

Which they eventually do.  The police then search one of the bad guys, find some drugs on him, and he admits he's got more drugs in the house.  Plus they run a check on the guy and find out that he's got prior convictions, including being a felon in possession of a weapon.

So the officers gets a warrant to search the house.  Find guns, cash, and drugs.  Prosecution of the defendant follows.

Seems pretty straightforward, right?  Often times these things end in shootings.  Righteous or not.  Or barging into a house without a warrant.  None of that transpires here.  So what's the problem?

According to the Ninth Circuit, it's ordering the defendant out of the house.  No probable cause, Judge Watford holds.  Lots of evidence in the house is accordingly suppressed.

There's lots to say in favor of Judge Watford's opinion.  Possessing a loaded handgun in public is only a misdemeanor, he notes.  The home is a foundationally protected place, he rightly explains.  The police could have gotten a warrant in advance.  All true.

Something nonetheless makes me uncomfortable.  Despite the validity of each and every one of these points.

At a base level, there's a guy with a gun who's fled from the police.  That seems pretty serious.  To me, anyway.  Serious enough to shoot into the house?  No.  Serious enough to blast away at the guy as he's running inside?  Not then either.

But still serious.  Serious enough, my gut tells me, to tell him to come outside.  In strong language, even.  Including but not limited to a helicopter and bright lights.  Commanding him to come out.

Could the police have gotten a warrant?  Yeah.  But are we really going to compel 'em to do so?  To repeat:  There's a guy with a gun who's fled from police.  Maybe my intuitive sentiment is wrong.  But I sort of want this situation to be resolved expeditiously.  Plus, I can't help feeling that it's somewhat "wrong" that evidence gets tossed here when the police acted in what seems to me a pretty reasonable fashion.  Certainly as contrasted to what alternatives might well have gone now (e.g., someone shot and killed -- defendant and/or the officers).

So that's my sentiment.  For whatever it's worth.

P.S. - Note to Judge Watford:  I think the contemporary way to describe the locale at issue is "South Los Angeles," not -- as the opinion does in its third paragraph -- "South Central Los Angeles."  It's the same area, of course.  And since I'm somewhat who was clerking in L.A. and drove through the intersection at Florence and Normandie six days a week between 1991 and 1992 (but who, thank goodness, took the I-10 on the afternoon of April 29), I'm quite familiar with the locale.  But I'm also pretty sure that since the L.A. riots, people deliberately started calling the place its new name.