Lawyer talk off the record, on the air. Check us out@LawyerTalkPodcast.com by the way, appreciate the comments. Lots of interaction on Facebook and on YouTube. We're going to keep it coming today with another installment of what we call what the bastards can't do to you series or what they can't do to you series. Meaning what are our rights vis a vis the government? When can the government enter our house? What are our rights when the police interact with us on the side of the road or on a sidewalk or wherever. And today, in the midst of all this turmoil, we're going to talk about a case that the U.S. supreme Court came out with I think just last week. And it's called Case vs. Montana. And it talks about the kind of stuff that we're dealing with here, you know, when it was a police entry of a home for emergency purposes. And the court sort of is taking apart how that fits within the fourth amendment context. You got the facts ready? Yep.

So chronologically from the beginning, Case has an ex girlfriend who is scared for Case's well being. She decides to call the police and say that he's suicidal. So the cops go and do a wellness check on Case. When they're doing the wellness check, you know, they knock on the door, yell inside, no answer from Case. They start looking through the windows and they see what they believe is a note next to an empty holster and a bunch of beer cans. Looks like something.

Looks like a suicide situation.

Yeah, yeah. So look, looks, looks. So they decide to go inside the house without a warrant. They go in and they eventually find Case in a closet. And when they open the closet, Case basically pops out and he has something in his hands that the cops, you know, think is a gun. And so the cops shoot him and Case survives, but they like, they charge him with, I believe it's like assaulting an officer, something along those lines. And so at trial, Case tries suppressing the evidence because.

Suppressing, yes. He says, all right, this violated the fourth Amendment.

Yes.

And therefore, court, we've talked about this, this is the exclusionary rule. Throw all the evidence out. Yes, find me. And if you have no evidence, you can't.

Yeah, yeah, because it was, I mean, he was, he was said, you know, you guys entered my house without warrant. You just can't do that. And ultimately he lost a suppression hearing, went all the way up to the Montana Supreme Court where they affirmed that his conviction that the evidence shouldn't have been suppressed. And then he made it all the.

Way to the big house, the US Supreme Court and the US Supreme Court affirmed.

And it's a little tricky.

The US Supreme Court upheld the search, but not necessarily for the reasons that Montana did. So let's break this down. Montana has a standard that they called their caretaker doctrine. And, you know, and under the. Under the Montana caretaker doctrine, the police can go in to take care of things or, you know, to protect the community from these kind of dangers. Right. And Montana is grappling with this over the years, over the last several years, because the U.S. supreme Court has been grappling with it. And it goes back to a case called Brigham v. Stewart, which I think was. We'll have to get the date on that. But it goes Back to Bringham vs. Stewart, where the U.S. supreme Court held that police officers can enter home without a warrant if they have an objectively reasonable basis for believing that someone inside needs emergency assistance.

So that's 2006, by the way.

That's 2006. And I think in that case, the police are either called to the scene by neighbor, or somebody calls the police to the scene. They look through a screen window, and they see, like, a teenage kid decking somebody else, and there's blood and there's danger, and, you know, the police go in and basically break up the fight. And that was in the Brigham case. So the police create. Or the U.S. supreme Court creates, this objectively reasonable basis for believing standard that somebody needs emergency aid. Yeah. All right. What could possibly go wrong with that? I mean, who knows? Now, this is a little bit different, though. And here's where the court eventually goes with this. Our U.S. supreme Court goes with it. So we have a situation where the police say, take a situation where the police are called out to investigate a crime. And generally speaking, you can't go into somebody's house without a warrant.

Yeah.

And in order to get a warrant, you have to have probable cause. There are exceptions to the warrant requirement. One is called exigent circumstances.

Yep.

They teach you that in law school?

Yes. Whenever we first read this, the first thing I thought of was the emergency aid, where somebody's screaming inside. Or you're like, see, that's what. That's what I thought of.

Or if the police are afoot chasing somebody.

Yes, yes.

And that's. Say you tried to rip off the. Or you knocked off the bank and you did it with. At least you acted like you had a gun. The police are on foot chasing you. You run into a house, the police. You know, that's an exigency situation. That's exigent circumstances that in theory would justify the police going into that house without a warrant. Because you can imagine. Hold on a second, guys. We got to go down to the old magistrate, knock on his door on Sunday at 10pm and. Or you know, if it's a bank robbery, it's during business hours. But go, go rouse the magistrate and get a warrant to go in this house to find it. Well, by then the guy's gone.

A bank robber's gonna be really upset on Sunday when he tries to go do his job.

That's right. Right. So you know, exigent circumstances have. It's sort of evolved with different things or another one would be effervance and evidence. So if you have evidence, it's likely to be destroyed.

Flushing some dope.

So flushing dope or you know, if there's blood on, on the ground and it's over somebody's fence and it's raining. You know, you could just see how there might be some exceptions that have evolved over the years, but this is a little bit different. This is not investigating a crime, although at least that's what they're hinging it on. It sort of is though, you know, because suicide is a crime.

Yeah.

In most places. Nonetheless, the police are going in because they want to stop a suicide. Now let's just sort of take a time out because you've got this. You've got the rigors of our Constitution and the fourth Amendment and. And then you've got the reality of life.

Yes.

Let's just say that. Take it for instance, that the police come in and they're able as the guys law school. We do this in law school all the time. You take the facts and you twist them around it to push the bounds of the rule that we're trying to create. So what about a situation where would it be different if the police went in case is literally squeezing the trigger, the police managed to knock his hand away at the last second, they saved his life. Would anybody have a problem with that? At least not the outcome?

No, I don't believe so. I think everybody would like, thank God, saved a life.

He saved a life.

Yes.

And should the fourth Amendment prohibit that as a matter of practicality?

No, it shouldn't.

But this is the kind of crap you deal with in law school. It's a harder question because on the one hand everybody wants to say, yes, we'd much rather save the guy's life than worry about the fourth Amendment. And maybe the police would say that too and say, look, fourth Amendment be damned. I'm going in. I'm going to save this guy's life. I'll deal with the consequences later. I think it's worth it. It's a worthwhile risk. And maybe, just maybe, we want you legislate down to such a narrow legislative. I use that term generically. But you regulate down to such a narrow thing that you have no discretion. So who knows? Yeah. So maybe it's worth it to violate the fourth Amendment to save a life. Who would argue with that? But what's happened is when police do that, then the Supreme Court has to respond and they carve out exceptions or they don't here. Maybe they did save this guy's life. Maybe he was in the closet and maybe he was about to pull the trigger. He was, you know, in mental desperation, ready to kill himself. And, you know, I'm sure people are going to be saying, well, then why'd the police shoot him? You know, look, it happens.

Yeah.

So I don't. I can't. I'm not gonna comment on whether they should have shot this guy or not. It happened and that those are the facts and charge them with crimes. So let's get back to what the Supreme Court says about this. Basically going back to their decision in 2006 in Brigham vs Stewart. They review what they said. What the court said in that case, which is the teenage punching, the guy in the face case, please. Police were permitted to go in. And the court has sort of rejected. What the court grappled with is, do we call this probable cause? Because case was saying, look, I don't care about Montana standard. I don't care about this objectively reasonableness nonsense. The police are coming to the house. This is probable cause. You have to have a warrant, or you have to have probable cause, or you have to have a warrant. At a minimum, probable cause, even under exigence or emergency situation like this. And the court says, no, no, no, no, no, no. Based on our Brigham decision, we just have to have a reasonable, objectively reasonable emergency that the police can identify and they can go in. So the court says, no, we're going to uphold this and we're not going to suppress the evidence. So now forevermore, in theory, we have this standard where if the police have an objectively reasonable belief that that somebody needs emergency assistance, they can go into a house.

I don't think I'm too much on board with this. I think it opens the door. I think it's a little dangerous. I think this should be only allowed in very rare circumstances. I like the facts in case. Case makes sense. I'm just worried that now this is going to get taken advantage of.

Well, that's why I say what could possibly go wrong? And what you're saying is it could get taken advantage of. Look, I support the police. I always have. My entire career, people ask me all the time, how possibly could you be friends with police officers, support police officers when tomorrow you're in court banging away at a cop on the witness stand, trying to impeach him, and sometimes effectively, a lot of times effectively, and pointing out where they screw up and don't do their job. I think both things can be true. I think you can support the police, but you also have to recognize that the police are human and they're subject to the same human frailties as the rest of us. And to think I don't agree with those who are just always go, blue, go, blue book, go, blue book, go. You know, whatever. I do agree that the police have a very difficult job and they ought to be commended for doing it. I also believe that we need to monitor police activity in this country is because we want to make sure that we protect our rights. And the police are human. And like I said, they're subject to the same human frailties. That's why we have these amendments. That's why we have the Fourth Amendment. Our founders recognized as much and wrote it down. So, you know, I think it is true that we want to support the police. It is also true that they could possibly abuse this. Yeah, how would that be?

In my head, they're just doing a community. Maybe they just have some policy. Hey, we're just doing community checks in, like, this area. We went up, we looked through the window. We saw a lot of alcohol and some guns next to it. Nobody was touching the guns or anything. We're just worried that people are messing around with guns while they're drunk and they might hurt themselves.

Might be a reasonable basis to declare an emergency and go in without a search warrant or without an exception.

You go in and all of a sudden now there's a bunch of dope in there too. And now you're charging with trafficking and all this.

Or let's say this, the police are working a trap house or they're working a dope house, and they've got this under surveillance for a few weeks, and they see the comings and goings of what they think is probably drug dealing, but maybe they're a little worried. They don't have quite enough to go get a search warrant to go into the house. So they start poking around and they see some dangerous situation that maybe objectively could be declared an emergency, they use that as a means to enter the house without a warrant. So this, this is the danger of these kind of things. And it's not to say that there's not an answer to this and it's not to say that this won't come up. It likely will.

Yes.

So let me give you an analogous situation. There is another exception to the search warrant requirement called the inventory exception. If the police are going to impound your car.

Yes.

For instance, or if.

They take your backpack, you're wrestling with a backpack on it.

They take your backpack for whatever reason, maybe even a non criminal reason, and they're going to go hold it into the property room. The police have what's called an inventory exception that permits them to inventory or take stock of what's in the bag, what's in the car, write it all down on a form. And usually in the old days it was a carbon form, it probably still is. And they'd give you one, they'd put one there. Well, let's say in the course of inventorying the bag, they find a kilo of cocaine. Well, that's interesting.

Yeah. What a shame.

It just so happens there was a kilo of cocaine here, but we only got it by inventorying the bag and we didn't have a search warrant. But there's an exception that lets us conduct an inventory search. Very analogous to this. What could go wrong? Well, the police could use the inventory exception as a quote, mere ruse for a general rummaging for evidence of criminal behavior. So they use, they use a pre, they create an inventory purpose as a pretext to search the bag and therefore, or thereby rather circumvent the fourth Amendment warrant requirement. I didn't make that language up. It was a mere ruse for general rummaging for a search of criminal behavior or criminal activity. That's probably close to the quote. I can't remember the case. The point of that is that initially, at some point along the way, the U.S. supreme Court permitted an inventory. But then in another case, as that evolved, as our law does, another case came up where the cops used the inventory exception and as a pretext to go search somebody's stuff. Well, the court revisited, it said, well look, you can do an inventory search, but you can't do it as a mere ruse to search for other evidence. So how do we determine what's a mere ruse? Well, you look at all the totality of circumstances. Inventory exceptions now have to be conducted in accordance with strict or not strict, but in accordance with written, typically written police policies. So we get somebody that their car is inventoried. I get this all the time. Well, we conducted an inventory search on the side of the road, like, all right, well, let's see the inventory policy that you have written down. Police department. And you get it and says, you know, it may not match.

Yeah.

You know, most inventories aren't conducted on the side of the road. I had a great case. It was a dope house case. And the police were watching the comings and goings, just like we were talking about. And there was radio chatter that says, a red Cadillac pulling out. Stop that car for whatever reason you can.

Bold strategy.

Bold strategy. I think they said, stop the car and inventory it.

Oh, bolder strategy.

And it was on tape. You know, we had it on back in the days. It was on tape or maybe in a report. They didn't even realize what they were doing was wrong. Well, they stopped the car for a traffic violation, a red light violation or something, which was legitimate, but they did it only for the purposes of conducting an inventory search. And we were able to get the dope suppressed. Agree or not agree. Fourth amendment is what it is. Yeah. My point being, this is not the last time we're going to see this. As we talked about now, the third time or fourth time, what could possibly go wrong? Well, the police are going to use this as a mere ruse to go search for evidence of criminal behavior, and the court's going to have to grapple with that. And I suspect that there's going to have. It's already baked into it, but it's going to have to be expounded upon. What is baked in is the objectively reasonable belief. And somewhere along the way, the court's going to have to grapple with dual intent, where there's a subjective intent by the cop for a little something more like your scenario, where, well, there must be an emergency here. Well, objectively, the court's going to say, look, objectively, we don't think that that was enough to declare an emergency. And this, by the way, was. I believe one of the concurring opinions talks about this. I forget who wrote it, talks about this, like, wait a minute, we're going to leave this to the hands of our justices of what's objectively reasonable? Well, you know, our response would be, we sort of do that anyway. Yeah. But, yeah, we're gonna. We're gonna get more. And. And I think when the police officer's subjective intent becomes apparent from the circumstances. That is a mere ruse to go search for evidence of criminal activity that they couldn't otherwise get to. Because of that pesky Fourth Amendment, we're going to see searches like this rejected or suppression motions sustained. So, anyway, that's our take on case versus Montana. Hope it was insightful. Let us know your thoughts on this, because, look, this is one of those things that affects us all. Yeah. You know, on the one hand, I want the police to be able to come in and save people's lives. On the other hand, we want to keep them at bay. And there's that constant give and take on how the Fourth Amendment evolves. So lawyer talk off the record, on the air. Check us out. LawyerTalkPodcast.com Leave us a question, leave us a comment in the socials, and we'll get back to you.