CASES SHOW 4TH AMENDMENT'S LIMITS, POWER

Two recent decisions illustrate restraints that the Fourth Amendment places
on local police.

A reaction to the freedom with which British authorities entered and
searched colonists' homes, the Fourth Amendment is still a bulwark against
arbitrary police stops and searches. It says:

"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."

Interpreting those 18th century phrases can be vexing for officers and
second-guessing courts.

One of the most recent cases involved a "chop shop" probe by Kentucky State
Police in London.

Officers suspected proprietors were dismantling stolen vehicles and
reassembling them into "new" vehicles for sale with phony identification
numbers.

Faced with damning evidence, the defendants said the searches were
unconstitutional, and U.S. District Judge Jennifer B. Coffman agreed. She
said prosecutors could not use the evidence because all three search
warrants — issued by a state judge based on police affidavits — lacked
probable cause:

- - The first warrant relied on insufficient independent police investigation
and an anonymous informant whose reliability was not established.

- - The second warrant was short on facts, and the second and third warrants
were tainted because each relied on the first and its invalidated search.

In a 3-0 opinion, Judges Gilbert S. Merritt, Eugene E. Siler Jr. and Sandra
S. Beckwith reversed Judge Coffman's decision.

They said prosecutors could use the evidence "because the information
provided by the confidential informant was corroborated by other
information which together was sufficient to establish probable cause."

The second case arose from what 6th Circuit Judge Nathaniel R. Jones called
"a battle in the "war on drugs' that the government lost because it failed
to abide by one of the key rules of engagement."

In that encounter in southeastern Ohio, deputies violated the
"knock-and-announce" rule that judges have derived from the Fourth Amendment.

That confrontation began when a confidential informant told John R. Hull,
Pike County chief deputy, that Robert Dice was using lots of electricity at
his house to grow marijuana.

Subpoenaed records showed that Mr. Dice's utility bills were 10 times the
average of nearby residences, and Deputy Hull saw nine roof vents and two
guard dogs when he checked out the house.

An agent of the federal Drug Enforcement Administration produced a thermal
image of the home using an infrared sensor, and it was consistent with
marijuana grow lights.

A Pike County judge heard all of that and issued a search warrant.

That same day, deputies raided Mr. Dice's home. One knocked, announced his
purpose, waited a "few" seconds, and broke down the door.

Deputies seized more than 1,900 marijuana plants and equipment and
fertilizer needed for indoor cultivation.

Mr. Dice invoked the Fourth Amendment and asked U.S. District Judge John
Holschuh to bar the evidence from court.

The judge agreed, saying the search warrant was valid, but deputies did not
give Mr. Dice a reasonable opportunity to respond before breaking into his
home.

Exceptions to the knock-and-announce rule allow that kind of rush, but none
was present, Judge Holschuh said. There was no suspicion Mr. Dice was
armed, deputies knew or suspected there was too much evidence to destroy,
and hearing Mr. Dice's movements in the house and barking dogs did not
create probable cause.

On appeal, the Justice Department conceded the "scant amount of time
between its knock and entry rendered the entry unreasonable under the
Fourth Amendment."

However, government lawyers said that error should not deny them the
evidence in an otherwise valid search with a valid warrant.

Put another way, the Justice Department asked the 6th Circuit to create a
new policy, one saying that the exclusionary rule should not apply when
officers have a valid warrant, knock and announce their presence, but fail
to wait a reasonable time before breaking into a residence.

Judges Jones, R. Guy Cole Jr. and Ronald Lee Gilman rejected the government
argument, saying deputies' rush ruined the prosecution.

Writing for the court, Judge Jones recalled the virtues of the
knock-and-announce rule: It reduces the potential for violence to officers
and occupants of a home being raided, it curbs needless property
destruction and it protects individuals' right to privacy at home.

Judge Jones also expanded on Judge Holschuh's review of exceptions that
relieve officers of the knock-and-announce requirement:

- - People inside the home know the officers' authority and purpose.

- - Officers have a justified belief that someone inside the home is in
imminent peril of bodily injury.

- - Officers have a justified belief that people inside know it's a raid and
are trying to escape or destroy evidence.

When none of those exceptions is present, officers must wait a "reasonable"
time before kicking in a door. Generally, that means giving the resident
time to open the door.

"The government's argument here is no more than an attempt to circumvent
this clear and binding precedent that knock-and-announce violations require
suppression," Judge Jones wrote.

The evidence may not be used.