This has to be the single most brilliant opinion I’ve ever read. Judge Jeffrey Sutton proceeds to eviscerate the Memphis Police Department and a district court judge who has annoyed me (in fairness, judges probably annoy every lawyer when they rule against that lawyer – it doesn’t mean that the judge is stupid or even wrong). I have tremendous respect for the district court judge in this case, but I have to admit that seeing him get jerked up short by the Sixth Circuit gave me a delicious sense of schadenfreude, seeing how he’s wagged his finger at me before.
And don’t get me wrong; being declared to be wrong by two circuit judges (okay, a circuit judge and a district judge sitting by designation) isn’t a big deal. But the opinion Judge Sutton wrote is hilarious, and you should read it too.
Briefly: Memphis PD attempts to serve an arrest warrant at a particular address. When they arrive, no house is marked with the number they have, but there are two houses (on opposite sides of the street) with the same (preceding) number. To make this example concrete: instead of there being a 101 Main and a 102 Main, on opposite sides of the street, there are instead two houses marked 101 Main (on opposite sides). Make sense? No? Welcome to Memphis.
Anyway, so the officers decide, rather than conducting any sort of independent investigation, simply to knock on one of the doors. A woman answers (incidentally, the arrest warrant was for a woman). She shuts the door on them, then about eight minutes later comes back to the door. The officers assert that they have a search warrant for that house, and she lets them in. At some point, the officers are asked what house they’re supposed to be at, and name the number that is attached to the house (using the example above, they say the warrant is for 101 Main). They’re then told that they’re standing in the house where the warrant was supposed to be served. They find a massive amount of cocaine and arrest the owner of the house.
So far, so good. Defendant moves to suppress the cocaine seized in his arrest. The district court denies the motion and sentences him (on plea subject to appeal) to 126 months. What does Judge Sutton do?
Here’s where it becomes truly beautiful: he proceeds to mock the Memphis PD for seven pages. My favorite example (please note that the arrest warrant was for criminal trespass):
The officers had an arrest warrant for criminal trespassing, not drug dealing or something else that an occupant might wish to hide from the officer’s view. The most law-abiding place for criminal trespassers to be is at home, on their property. The only people apparently trespassing that day were the officers.
And then there’s this, which acknowledges that yes, the cops can lie to you, but seriously there are limits:
Law-enforcement work is not easy, and no one doubts the correlation between preserving public safety and preserving a free society. Nor does anyone doubt the imperative of allowing officers to use ruses and lies in the course of this essential work, particularly if the tools of indirection ensure police safety. Think of an undercover officer asked what he does for a living. But none of this permits officers to tell an occupant that they have a warrant to make an arrest at a given address when they do not. The officers took a knowing roll of the dice, and perhaps it would have worked had they been right as a matter of chance about the address. But when they were wrong, that was their problem, leaving them with having obtained entry into the wrong house based on a false pretense. An officer may not falsely tell a homeowner that he has an arrest warrant for a house, then use that falsity as the basis for obtaining entry into the house.
I also love this passage, where Judge Sutton can almost be seen beating his head against the chambers wall in despair for humanity:
The officers saw five people in the front room, and one officer asked who lived there and who owned the property. The still-unidentified woman at the front door said she lived there, and so did one of the men. One of the occupants then asked, “
[W]hat address y’all looking for?” R.52 at 36. An officer responded, “3170 Hendricks.” False again. The apparent justification for this answer was the risk that, if the officers told them the truth—they had an arrest warrant for 3171 Hendricks—the occupants would “lie” and say that this was 3170 Hendricks. The officers were right about one thing—the proclivity for lying that day—as the occupants answered, falsely, that “this is 3171 Hendricks.” Seizing on the answer, the officers claim that it gave them a definitive right to stay in the house. But the officers misjudged the impact of a false response to a false statement, what you might say was being too deceptive by half. The two falsities still left the officers with a false premise—that this was 3171 Hendricks. It was not.He ultimately points out that all of these people are too dumb to breed, saying, “Had it not occurred to anyone to ask, straightforwardly, which house is 3171 Hendricks and which house is 3170 Hendricks?” Look, I’m not the smartest tool in the shed (hell’s bells, I’m probably not the smartest person who’s posted to the Cocklebur in the last month), and I mix metaphors viciously (“smartest tool in the shed”? Really? Whatever, we’ll roll with it). But even I can figure out how to ask a question so that there’s no room for a deception to cause me a problem (that is to say, ask it in such a way that whether the answer is true or false, I can still proceed). Apparently, the Memphis Police Department does not train their folks to do that.
And then, the money quote:
No custom of law-enforcement training of which we are aware, and certainly no custom of Fourth Amendment law, allows an officer to give a false answer to the question “What right do you have to be here?” as a basis for staying put. Just as a lie about an address cannot supply the basis for entering a house, it cannot supply the basis for staying in a home once an occupant asks the officers what right they have to be there. Otherwise, an officer, when challenged over his right to enter a house, could say he had an arrest warrant when he did not. Or these officers, when asked to show the arrest warrant, could have produced a false arrest warrant, one with the wrong address. No one plausibly thinks that is permissible. See Bumper, 391 U.S. at 549–50. Why was this law-enforcement encounter any different? The government offers no good reason, and we cannot think of one on our own.
Be still my heart. This George W. Bush appointee has secured the dubious opportunity to review my resume for a clerkship. The case is United States v. Shaw, no. 11-6433 (6th Cir. February 21, 2013), and the slip opinion can be found here.