finding that detention of forty-two hours violated arrestee’s Fourth Amendment rights, where officers learned early in the detention that arrestee would not be charged and the only reason for delay was that police were trying to build a ease against arrestee, and reversing jury verdict in favor of defendants and directing verdict in arrestee’s favor
How later courts described this case
- finding that detention of forty-two hours violated arrestee’s Fourth Amendment rights, where officers learned early in the detention that arrestee would not be charged and the only reason for delay was that police were trying to build a ease against arrestee, and reversing jury verdict in favor of defendants and directing verdict in arrestee’s favor
- observing “that civil rights actions often pit unsympathetic plaintiffs—criminals, or members of the criminal class ... —against the guardians of the community’s safety, yet serve an essential deterrent function”
- finding probable cause a jury question when difference of opinion exists
- noting that sealing off the house would have been difficult in part because it was nighttime
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by County of Riverside v. McLaughlin, 500 U.S. 44 (1991)
763 F.2d 1560, 1565 (7th Cir. 1985), abrogated on other grounds by Cty. of Riverside v. McLaughlin, 500 U.S. 44
The opinion
HARLINGTON WOOD, Jr., Circuit Judge,
with whom
CUMMINGS, Chief Judge, and CUDAHY and FLAUM, Circuit Judges, join, dissenting in part and concurring in part.
The essence of Judge Posner’s opinion, as I read it, is simply that when you are short on probable cause you can make up that shortage by adding exigent circumstances. I cannot accept that dangerous, unnecessary, and indefinable blending of two separate and useful traditional concepts in order to justify a warrantless search of a private home at night. The bad factual circumstances in this case are leading us to bad law for future cases.
To build the issue into even a “close line” jury question between reasonable and unreasonable police behavior the opinion indulges in one obvious speculation after another with even a little help from Chekhov. If this court is to indulge in that kind of speculation as a basis for an opinion we are setting a bad precedent for the police whose exigent circumstance imaginations to avoid magistrates will now be given free rein; and juries will be invited to do the same when it is their turn.
If, as the opinion holds, exigencies can substitute for probable cause, we are in effect sanctioning warrantless nighttime home entries for which no warrant would have been issued if one had been sought from a judicial officer. This is clearly an anomalous and untoward result. It seems to me that you have to concede that probable cause in the traditional sense is lacking in this case, and that a magistrate would not have authorized the search warrant. This is why the majority needs to invent *1579 this new blended warrantless search concept.
There is no dispute about the actual hard facts. On that factual basis I believe as the original majority did that the issue is ripe for a legal finding of no probable cause. If a jury were to find otherwise, the verdict should be set aside. Perhaps if we were just sending this case back to a jury to make the probable cause decision properly instructed in traditional search terms I would not object so strongly. However, the jury will now have to be instructed with this new “mix-it-all-up-together” rule invented in this case. We will be headed into trackless legal underbrush. A person should be more secure in his home than that.
I had not thought it necessary until now to defend the revered privacy of a person’s home from warrantless nighttime police searches. To cross another person’s threshold at night without a warrant should still require sufficient showing of both probable cause and exigent circumstances. This view finds support in Payton v. New York, 445 U.S. 573, 587-88 , 100 S.Ct. 1371, 1380-1381 , 63 L.Ed.2d 639 (1980) and its progeny Welsh v. Wisconsin, — U.S. -, 104 S.Ct. 2091, 2097 , 80 L.Ed.2d 732 (1984). Payton established that probable cause to believe a felony suspect was in a private residence is not sufficient to justify a warrantless, in-home entry. Exigent circumstances are also necessary. There is no intimation in Payton , in its progeny Welsh , or in any other case I have found involving in-home, warrantless entries that exigencies can substitute for, or allow the relaxation of, the probable cause requirement. As the Court said in Whiteley v. Warden, 401 U.S. 560, 566 , 91 S.Ct. 1031, 1035-36 , 28 L.Ed.2d 306 (1971), “[l]ess stringent standards for reviewing the officer’s discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus the standards applicable to the factual basis supporting the officer’s probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate’s assessment.”
However, all that aside, even if I were to embrace this new probable cause-exigent circumstances mix, which I do not, I would find the circumstances in this case, as bad as this murderous rampage was, to be somewhat less urgent than the opinion pictures them. After all a magistrate was in fact available. That is not unusual in metropolitan areas where police crises are common at night. The policemen who drove back to their headquarters to pick up the shotgun and the sledgehammer to force their way into the home would have been better advised to have gone to see the magistrate and let some other policemen, of which there was no shortage, pick up that equipment in case it might be needed. When the police rushed through the front door of the home with drawn guns and herded together all ten occupants, including children, there were at least six officers already at the scene, and others could have been summoned. It can be argued that a little calmer approach might have been advisable. The home could have been watched and a safe strategy devised while a magistrate was consulted. If the felon was actually in the home there was no reason to believe he would take his own family hostage and sacrifice them. Experience has demonstrated negotiations are possible and often successful even in extreme situations. Sometimes the macho urge to charge is more dangerous and ill-advised than a more thoughtful consideration of the situation. The police were still in the home when the missing felon was apprehended elsewhere. The whole bad home scene could have been avoided. The judgment of a judicial officer was needed and there was time and reason to do it right. The fight against crime will be aided, not deterred, by holding fast to traditional democratic and common law principles. To do otherwise is to sanction vigilantes in blue.
Therefore, I respectfully dissent from Judge Posner’s disposition of the unlawful entry charge, but I concur in the disposi *1580 tion of David Llaguno’s unlawful detention charge.