Legal News

Pass on warrant squeaks by in Ninth Circuit

By Richard Binder

An en banc court ruled 6-5 Wednesday that San Jose cops didn't need a warrant to arrest plaintiff Steven Fisher in his home, after Fisher had holed up there for 12 hours and threatened to shoot the police with his collection of Great War-era bolt action rifles.

"Implicit in Fisher's argument is the following premise: In an armed standoff, once a suspect is seized by virtue of being surrounded and ordered to surrender," Judge Richard Tallman wrote in Fisher v. City of San Jose, 08 C.D.O.S. 3010, "the passage of time may operate to liberate that suspect, rekindle the arrest warrant requirement and require police to assess with each passing minute whether the circumstances remain exigent. We reject this premise."

In dissent, Judge Stephen Reinhardt protested the majority's "lack of respect" for the Fourth Amendment. Chief Judge Alex Kozinski joined Reinhardt, as did Judges Harry Pregerson, Sidney Thomas and Richard Paez.

"I reject the majority's unprecedented conclusion that, once a police action is initiated without a warrant because there is insufficient time to obtain the approval of a magistrate, that action may be substantially expanded and continued indefinitely without a warrant," Reinhardt wrote, "even though the police have every opportunity to obtain one."

Read the full story at The Recorder.

Full post as published by Legal Pad | LA on March 12, 2009 (boomark / email).