(CN) – “Plain view is killing the Fourth Amendment,” Chief Judge Alex Kozinski wrote in his forceful dissent from the 9th Circuit’s refusal to reconsider its decision backing the warrantless search of a man’s home after officers spotted a gun tucked in couch cushions. “Welcome to the fishbowl,” the judge added.
The decision not to take up the case irked Kozinski so profoundly that he wrote a nine-page dissent, calling the search “a fishing expedition by four officers” that was approved “based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.”
“Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency-in other words with nothing at all,” Kozinski wrote.
Juan Lemus was in his yard one day when two officers pulled up to arrest him. Lemus was trying to walk into his living room when the officers handcuffed him in his doorway.
A three-judge panel of the 9th Circuit ruled that the officers could enter and search the home without suspicion, because they claimed they could see a gun in plain view on Lemus’ couch. The gun was found in couch cushions.
“Did I mention that this was an entry into somebody’s home, a place where the protections of the Fourth Amendment are supposedly at their zenith?” Kozinski wrote.
He said the “evisceration of this crucial constitutional protector of the sanctity and privacy of what American’s consider their castles is pretty much complete.”
“Welcome to the fishbowl.”