Were the Watertown searches for Marathon Bomber legal or not? Probably not!

(Worth a read. – promoted by Rob “EaBo Clipper” Eno)

I got to thinking about the searches conducted by the law enforcement teams investigating the Boston Marathon bomber in Watertown.  I had read that the authorities had executed search warrants for houses in Revere (where an unnamed Saudi lived) as well as in Cambridge where the Tsarnaev brothers lived and in New Bedford where some other acquaintances of the brothers lived.  But I had not heard of any search warrants for the numerous homes in Watertown that were searched.  It appears there were not any search warrants for the search of any homes in Watertown.  If I am wrong please let me know so…

From this very good article at Lawyers.com:

No Warrant, but Still Need a Reason

The Fourth Amendment, of course, requires police to have warrants supported by “probable cause” to conduct searches. But exceptions allow police to make emergency searches without warrants – and sometimes even without probable cause.

Read more after the jump

When can a search be conducted without a warrant?

“If they have probable cause, they can search without a warrant when taking the time to get one either would result in the destruction of evidence or present a danger to someone,”

In the article linked Professor David Rossman states:

“That was really the public safety exception, not so much the exigent circumstances exception,” says Rossman. “In the latter, they need probable cause. For the former, they don’t; they just have to have a reasonable belief that there is a potential danger to the occupants inside a dwelling.”

Certainly there was potential danger to the neighborhoods Tsarnaev was ranging through; he was thought to be armed and very dangerous, seeing as how he and his brother had allegedly just blown up the Boston Marathon and then shot and killed a campus police officer at MIT.

As for the probable cause necessary to search each home under exigent circumstances, that would have been more difficult to establish: Was there any reasonable evidence that Tsarnaev was inside any one particular home? Likely not, until the bloody tarp and boat were discovered.

So it sounds as though it is unlawful to conduct a warrantless search simply knowing that a dangerous person is in the general vicinity, and not within the actual structure or dwelling being searched.  The fact that a police chase, including dangerous criminals, ended in your neighborhood does not give law enforcement ‘carte blanche’ to extract you and your family from your home at gunpoint, and conduct a thorough search of your property and private dwellings.

My friend Bob Parks writes that this may be the new normal:

How many times have we watched cop dramas on television where the police had a pretty good idea of where the bad guys were, but as they weren’t sure, came to the door and asked permission to come inside to “have a look around”? The only time they ever bashed a door in is when they absolutely knew the bad guys were there. If there was ever any doubt, they’d have to wait… for a court order from a judge.

That did not happen here.

The police came to people’s homes, ordered them to leave immediately at the point of a gun in some cases, and then entered their place of residence. It’s never “consensual” when the person asking you for something has a gun in his hand. “Probable cause” is convenient, but in this case, very arbitrary.

If any question whether the searches were voluntary please watch the video here.

So have Massachusetts residents allowed big brother to assume total control of the state, above and beyond the matter of law, whenever the citizens can be convinced that a public matter is important?  What can of worms have we opened?

Footnote: If only Governor Deval Patrick would protect your privacy rights as dearly as he protects the privacy of the bomber’s welfare records…

Nobody can argue that this incident ended well, but do the ends justify the means?  Can we say that because they caught the bad guy it was perfectly okay to raid the home of every innocent person for 20 blocks at gunpoint thus scaring the heck out of sleeping children and invading the constitutionally protected privacy of US citizens?

Time to rethink for the next time this happens…

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