I despair about the future of our constitutional rights

US v. Black, 482 F,3d 1044 (9th Cir. 2007)

KOZINSKI, Circuit Judge, with whom Judges REINHARDT,
KLEINFELD and BERZON join, dissenting from the order
denying the petition for rehearing en banc:

Once upon a time in the West there was a special place called
home. Solemn pronouncements from our nation’s highest
court, and our own court, protected it from warrantless police
intrusions. “With few exceptions,” the Supreme Court held,
“the question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no.” Kyllov. United States, 533 U.S. 27, 31 (2001). Such searches weredeemed “presumptively unreasonable.” Payton v. New York,
445 U.S. 573, 586 (1980). We held that the “governmentbears a heavy burden of demonstrating that exceptional circumstancesjustified departure from the warrant requirement.
The burden [could not] be satisfied by speculation about what
may or might have happened.” United States v. Howard, 828
F.2d 552, 555 (9th Cir. 1987) (emphasis added) (quoting
United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)).
Police who entered the home without a valid warrant could be
held personally liable. Groh v. Ramirez, 540 U.S. 551, 563-65
(2004).
That special place is no more. The rules haven’t changed,
at least not on paper. But legal rules are only as good as their
last application. The panel majority dutifully recites the right
standard, but guts it of all meaning by approving an intrusion
into the home that does not remotely satisfy it. If the justification
here satisfies the government’s “heavy burden” to show
non-speculative “exceptional circumstances,” it’s hard to
imagine how we can keep the police from barging into any
home anytime they please.
The majority gives the government a pass because “the exigencies
of domestic abuse cases present dangers that, in an
appropriate case, may override considerations of privacy.”
Maj. op. at 3969 (quoting United States v. Brooks, 367 F.3d
1128, 1136 (9th Cir. 2004)). The problem with this approach
is that the government has any number of such crises-du-jour:
terrorism, child pornography, child abuse, drugs, hate crimes
—the list is endless. When confronted with such serious
crimes, it is the job of the police to be suspicious; the job of
the courts is to insist that police develop evidence supporting
these suspicions before they defile the sanctity of the home.
In a particularly disturbing passage, the panel majority
opines that “[e]rring on the side of caution is exactly what we
expect of conscientious police officers.” Maj. op. at 3969.
This is entirely backwards when the cautious error involves
invasion of the home. In such circumstances, we expect police
to err on the other side of caution by staying out unless and
until they obtain a warrant or satisfy the demanding constitutional
standard for a warrantless search. The majority’s unfortunate
phrase will be widely seen as a green light for the
police to “err on the side of caution” by breaking into people’s
homes based on half-baked suspicions.
When a panel of our court can find that the facts here satisfy
the government’s “heavy burden” for invading the home
without a warrant, I despair about the future of our constitutional
rights. If the right accorded the greatest protection by
the Fourth Amendment—the right to privacy of the home—
can be so casually brushed aside, no right is safe. Because my
colleagues do not similarly view this issue as one of exceptional
importance, I sorrowfully dissent.