Mimesis Law
22 August 2019

For Sheriff Fewins, Snacks Are Mandatory, Warrants Not So Much

Sept. 15, 2015 (Mimesis Law) — If Sheriff Fewins is right, the State can do the following without a warrant:

  • Lob two volleys of tear gas canisters into your home.
  • Form an all-night perimeter around your house with sixty officers.
  • Flatten the tires of your car to prevent you from escaping.
  • Throw a surveillance phone, wired up with hidden microphones, through your broken window.
  • Shoot you in the head with a scoped rifle.

Officers were responding to 911 calls from Craig Carlson and his family that he was armed and suicidal, and might hurt himself if someone didn’t rush to the scene and kill him at long range with a high-powered rifle.

Carlson warned the police that if they used tear gas on him, that would be the “start of the war.” To keep trust, officers would have to respect his wishes. Naturally, they didn’t.

Police spent the whole night outside the home, shutting down Carlson’s power and water, blanketing his house with floodlights, and shooing neighbors out of the danger zone. When a sniper saw Carlson in the window with a gun in his hand, he took the shot. Not one of the 60 officers who responded to the scene ever requested a warrant.

The family sued, saying that officers had deprived Carlson of his civil rights by seizing him without a warrant. The seizure, in this case, consisted of trapping him in his home with poisonous gases, surrounding him with armed men, letting the air out of his tires, and ultimately shooting him.

Sheriff Fewins explained that none of the officers had time for a warrant—that the ongoing emergency that Carlson might shoot himself constituted “exigent circumstances.” Under the exigent circumstances doctrine, police don’t need a warrant if there is a compelling need for a search or seizure and no time to get a warrant.

There was only one problem with that claim here. While Fewins said he had not had time to get a warrant from a neutral magistrate, he did have time to “request and receive coffee, granola bars, and hot chocolate.” The trial court ruled that the Sheriff’s claim of exigency was good enough as a matter of law that no jury could disbelieve it, and Carlson’s estate appealed to the Sixth Circuit Court of Appeals.

The appellate court reversed the trial court and held that reasonable people could disagree that snacks and hot beverages are a higher priority than getting a warrant:

The Estate’s evidence suggests that in the split second of their choosing and without a warrant of any kind, the Team decided to end hours of tense, quiet waiting by taking the precise action that Carlson had described as “the start of the war.” A jury could find the totality of the circumstances made this unreasonable, not just with 20/20 hindsight, but from the perspective of any reasonable person responsible for rendering aid to an armed and obviously emotionally disturbed person and that no immediate danger exigency excused the various warrantless actions taken against Carlson while he was taking refuge in his home.

In addition to claiming exigent circumstances, Fewins also gave a pretty damning account of his reasoning:

And the other thing is, even with the warrant, it does not put us in any better of a bargaining spot or any better of a position because it was still impossible for us to enter that residence and serve that warrant on him in his state being barricaded like he was. So the warrant would have been to no avail. The only time the warrant would have been handy is if we had decided to just vacate the area, leave Mr. Carlson alone, sleep it off, hopefully [sic] that he wouldn’t go anywhere and hurt anybody or himself, and then serve the warrant at a later time.

In other words, the warrant wouldn’t have made his job easier, therefore it was unnecessary. Sad to say, he might not be wrong. Although plenty of Americans watch television programs where criminals boldly proclaim, “come back when you have a warrant,” in real life, things rarely shake out that neatly. In fact, there is very little that a knowledgeable officer can’t do without a warrant.

An officer can pull you over in your car if you’ve committed any traffic violation, or if he thinks you have. If he smells drugs, or has a dog that’s willing to scratch at your trunk for treats, he can force you to stand by the roadside while he rips through the ceiling with a knife, looking for contraband. He can pop the trunk and go through your luggage. He can handcuff you while you wait, so long as he promises you that you’re not under arrest.

If you’re on the street, you can be stopped and questioned based on any number of pretexts, from furtive movements to a heavy jacket that looks like it contains a gun. Police get double points if they say you are in a “high-crime area,” which courts pretty much take on faith. Officers can pat you down on a suspicion of dangerousness, and if you’re placed under arrest, even for a crime that carries no jail penalty, then officers can thoroughly search your person.

In your house, you’re theoretically a little safer. But officers can perform a “knock and talk, where they try to trick you (or someone they think has authority) into consenting to let them enter. If they knock and hear scurrying inside, that can be enough to bust in and search for drugs.

Or police can be in “hot pursuit,” of someone they claim just ran into your home. If anyone who has ever lived at your home has a warrant, or if officers can reasonably claim they think that person has a warrant, they can come inside to search for him.

Sprinkled on top of all these warrantless searches is the protective sweep doctrine, which lets officers search for people hiding in closets, under beds, and on top of cabinets waiting to shoot them. Anything the officer sees during the protective sweep is in “plain view,” which means that it can be used as evidence against you even if there was no danger. And officers can do this even after they’ve completed their business, to make sure that no one shoots at them on the way out.

In other words, it takes less time to list the circumstances where police do need a warrant than the circumstances where they don’t. And if an officer does make a mistake, there’s always the good faith exception to pick up the pieces.

So when Sheriff Fewins says he didn’t get a warrant because it wasn’t handy, he’s not being unreasonable. Generally speaking, officers get warrants when they think there is a risk that a court might suppress the evidence without one—and here, a federal district court was willing to just take Fewins at his word that there wasn’t time.

The fact of the matter is, courts tend to take officers at their word about split seconds. Maybe not this time, but most times. And so when, some day at a split second of his choosing, an officer is forced to decide between getting a warrant to search your home and getting a steaming cup of hot cocoa to warm his chilly hands, it won’t be a tough decision.

Main image via Flickr/David Childers

2 Comments on this post.

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  • David
    15 September 2015 at 1:47 pm - Reply

    Need to fix those hot links.

    • shg
      15 September 2015 at 2:06 pm - Reply

      Not seeing a problem link. Can you give me a hint?