Path: utzoo!utgpu!news-server.csri.toronto.edu!bonnie.concordia.ca!nstn.ns.ca!news.cs.indiana.edu!att!att!mcdchg!ddsw1!igloo!learn
From: learn@igloo.scum.com (Bill HMRP Vajk)
Newsgroups: comp.org.eff.talk
Subject: Forced Entry
Message-ID: <3326@igloo.scum.com>
Date: 8 Feb 91 15:21:08 GMT
Reply-To: learn@igloo.scum.com (Bill HMRP Vajk)
Organization: igloo, Northbrook, IL
Lines: 44



Gail Thackery in EFF News #102 is quoted:

> As to last comment, I can't think offhand what is meant by "forced 
> entry" -- most search warrants permit that if all else fails, but since 
> we usually try to find/get someone home first, it's rare -especially in 
> the kind of cases we're especially interested in here.  If by "forced 
> entry" is meant the "sorry, don't want any" reaction to salesmen, then I 
> guess we'd have to call most of them that.  The only truly "reliable" 
> accounts of anything are those tested in court & passed on by the trier 
> of fact (jury, judge) -- in legalsystem terms. (Within that system, 
> until it's been so tested, it's only opinion, no matter whose.)

The following is taken from a handbook entitled "Proving Federal Crimes"
written by James C. Cissell, U.S. Attorney (1980.)

"An officer serving a search warrant on a house, absent exigent circumstances, 
must announce: (1) the authority under which he is acting, and (2) the purpose 
of his call. If he is refused admittance after such an announcement, he may
enter forcibly. 18 USC ~3109; U.S. v. Woodring, 44 F.2d 749 (9th Cir 1971).
Merely opening an unlocked door is a forced entry. Sabbath v. U.S., 391 U.S.
585 (1968). In Miller v. U.S., 357 U.S. 301, 304 (1958), because '[t]hey did
not expressly demand admission or state their purpose for their presence,' an
arrest was held unlawful when officers responded 'police' in a low voice to
the defendant's inquiry, 'Who's there', and then broke into his home when
the defendant attempted to close the door. All evidence seized as the result
of unlawful arrest was inadmissible."

I note with mild amusement the mindset of the author of the text. It is
obvious who the defendant in Miller v. U.S. was. It wasn't Miller.

Another question which has been raised in recent days has to do with the
"legality" of conducting a search without a signed warrant in hand. The
referenced handbook defines circumstances under which a search warrant may be
issued by a magistrate by telephone. Given the proliferation of fax machines
in recent years, I would hope that modern practices incorporate concurrent
paperwork. It would seem, nonetheless, that the minimum legalities for a
search require only the permission of a judge or magistrate. 

Bill Vajk   |    Experience should teach us to be most on our guard
            |    to protect liberty when the government's purposes 
            |    are beneficent.
            |                     -  Louis Brandeis