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CA9: Officers lacked PC to arrest and search defendant as a potential burglar in his own backyard

By John Wesley Hall, Jr.

The police received a 911 call that a man with a backpack climbed over a neighbor’s fence and might be a burglar. The police came, kicked open the gate and stopped the defendant, who matched the description and had a backpack in hand. They searched the backpack finding a gun, and he was a former felon. It turned out he lived there. The officers lacked probable cause to believe that he was committing a burglary because he had not attempted to enter the house. Viewing his presence as at least a trespass, the police were doing what we objectively expect of them. They did have at least reasonable suspicion, but not probable cause, and they could have asked him his name since he was posing no threat when they drew down on him. The government’s stretch to apply exigent circumstances to their conduct was rejected...continue to full post

Full post as published by Fourth Amendment on May 06, 2010 (boomark / email).