N.B. Reversed: Stanton v. Sims, 2013 WL 5878007. See p.2

At the inception of Supreme Court jurisprudence and in the ensuing years the Justices have repeatedly stated the exclusionary rule in the Fourth Amendment is a judicial remedy to deter unlawful conduct by law enforcement officials.  The Ninth Circuit has never endorsed this rationale and attempts to stretch the Fourth  Amendment into unreality.

Foreclosed by the Supreme Court from reviewing state court decisions on search and seizure in the venerable case of Stone v. Powell, 428 U.S. 465 (1976) the Ninth Circuit uses 42 U.S.C. 1983 to in civil cases to evade limitations on its jurisdiction.  

In Sims v. Stanton a Ninth Circuit panel decided a case on Fourth Amendment grounds irrelevant to the rationale of the exclusionary rule intended to deter officer misconduct. Police officers responding to a radio call at 1:00 a.m. reporting a disturbance in a known gang related area observed three men walking in the street. The officers saw two of the men turn into a nearby apartment complex but the third man continued walking. Ordered by police to halt, he refused, fled without responding, and entered the grounds of a house through a closed gate. The officer in pursuit kicked the gate open but inadvertenly struck and injured a woman, Drendolyn Sims, standing behind the door. Sims, alleging her injuries, sued the officer on 42 U.S.C.1983 grounds. The U.S. District Court dismissed all federal and state claims. Sims appealed.

According to the Ninth Circuit panel, this accident to the woman violated the Fourth Amendment despite the fact no one was searched or arrested. Instead, the court held forced entry through the gate onto the grounds of a residence constituted a constitutional violation. The court first launched into a discussion of curtilage to legally qualify the gate and grounds protected by the Fourth Amendment; then discussed whether an emergency or exigency justified entry to the yard in the absence of a warrant; and finally, whether the officer was entitled to qualified immunity. Concluding this warrantless entry unjustified by any emergency or exigency, and denying qualified immunity, the majority panel concluded the officer had violated the Fourth Amendment.

None of the cases cited by the Ninth Circuit panel in support of its ruling remotely resemble the facts in the Sims case. The author of the Sims opinion cited Rayburn v. Ruff, 132 S.Ct. 987 @992 (2012), another Ninth Circuit case reversed by the Supreme Court. In Rayburn the Justices had approved a warrantless entry to a house – not the grounds – without a warrant.

The panel in Sims could not help but note that officers cannot forcibly enter a fenced yard in pursuit of a misdemeanant, as distinguished from a felon, who refused to obey an officer’s demand. Undoubtedly this legal distinction did not cross the officer’s mind. No evidence established the officers harassed, searched or arrested Sims, nor engaging in misconduct. The officers were responding to a radio call in a gang area and merely wanted to talk to a man in the vicinity who was walking with two other men on the street at 1:00 a.m. Presumably someone walking at that hour may have some information about the reported disturbance, and officers wanted to inquire. The man refused to stop and entered the gate to a house whose occupants, if any, were unknown to the officer. No member of the panel dissented in a case devoid of any legal constitutional consequence, and with only the possible exception of ordinary negligence.