Police, The Fourth Amendment, Qualified Immunity

Poor qi decision by District Judge James S. Moody, Jr.

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Case: DALEO v. McCRAY, Case No. 8:11-CV-2521-T-30TBM (M.D. Florida, December 28, 2012)

What happened: Police arrested plaintiff’s girlfriend and requested to go into plaintiff’s house. After police and plaintiff’s girlfriend were inside the house, police asked permission to search the house. At this point, plaintiff’s girlfriend said that he did not live at the house and would not consent to a search of the house. Allegedly, the police officers went ahead and searched anyway.

Decision: QI for the police officers because clearly established law did not indicate that the girlfriend lacked authority to permit policemen consentual permission to enter the residence.

Criticism: It is the police who do (or at least should) have the burden of establish that a person giving consent to enter a residence really has proper legal authority to give that consent. Policemen should not be assuming that anybody willing to allow them into a residence has that authority as they did in this case. I respectfully disagree with Judge Moody and think that 4a law is clear enough on this sort of thing. Hoping for reversal on appeal.

Written by Burgers Allday

December 31, 2012 at 9:15 am

Posted in Uncategorized

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