More on U.S. v. Gould, aka “The Road to Hell…”

Via Eugene at The Volokh Conspiracy comes a link to this review of the decision by Ken Lammers of Crimlaw. Excerpt:

The court cites a number of cases which it claims support its position that protective sweeps are allowed once valid entry into the residence has been gained by an officer (I have not the time to check them but at least a couple appear to be inapposite plain view cases). Even later in the opinion it blows off the trial judge’s finding that the police created any danger to themselves by entering the trailer and not picking up Gould later (ie: in the morning when he left for work). The trial court says they can’t create a danger and then rely on it to abrogate constitutional guarantees. The appellate court says all the right things about how the officers cannot do such a thing and then makes an excuse for them doing it in this case.

—

My Opinion: The trial court had it right when it pointed toward the officers placing themselves in danger and then taking advantage of it to do a protective sweep. Herein lies the difference between Buie and it’s progeny and Gould. There is quite often danger in serving a warrant and thus the deference to officers acting under the color of one. However, if an officer is acting without a warrant, probable cause, or even a report of immediate criminal activity he cannot be allowed to choose an action which places him in danger over safer courses of action and be allowed to violate the constitution because of the choice. How hard could it have been to have someone watch Gould’s place overnight and stop him when he came out the next day? Sure it would have been inconvenient but that’s far from the primary consideration in a constitutional analysis. This is the point at which the court errs in its constitutional analysis.

There’s a lot more. Essentially he agrees with DeMoss in all the details. There are links to other legal reviews, too.