Constitution Daily

Smart conversation from the National Constitution Center

Third Amendment suit questions police fridge-raiding tactics

July 29, 2013 by Amy E. Feldman


A rare Third Amendment lawsuit pits a Las Vegas-area man against police who he claims acted like a bunch of rampaging Redcoats in his apartment.


Old school Redcoats

The Third Amendment is a right so seemingly obvious, people rarely have to make a case for it, and it comes from outrage during the Colonial area over Redcoats (and Continental Army troops) who would barge into homes and live there for extended periods.


“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law,” the amendment reads.


But based on claims from Anthony Mitchell, a resident of Henderson County, Nevada, the famous nearby city should change its slogan from “What happens in Vegas stays in Vegas” to “What happens when the police want to stay in your house in Vegas is that they stay in your house in Vegas.”


Mitchell, along with his parents (who are also neighbors in a separate residence in the area), have sued the city of Henderson and several police officials for violations of their Third Amendment rights.


He says police, who were conducting a domestic violence investigation of one of Mitchell’s neighbors, asked to use his home as a stakeout location, and things went wrong when Mitchell felt free to refuse the request because he preferred not to be involved.


According to a lawsuit filed Mitchell and his parents, Henderson County police didn’t take no for an answer.


Link: Read The Lawsuit


They went to Mitchell’s home and when he refused to answer the door, they smashed his door in with a metal ram, and, guns drawn, entered his residence and arrested him for obstructing an officer.


The lawsuit claims they also entered the residence of Mitchell’s parents and escorted them out of their home.  To add insult to injury, when the Mitchells returned, they allegedly found that the officers, while inside their home, had drunk their filtered water, left the refrigerator open and left mustard and mayonnaise on the kitchen floor.


But don’t police have a right to enter a home without a warrant? The answer is yes, but probably not in this situation.


If police believe that there is evidence inside a home that they need to conduct an investigation, they are generally required to get a warrant, and to get a warrant they must go before a judge to show that they have probable cause to believe that there is specific evidence in the specific location.


Where exigent circumstances exist, such as where the police believe that waiting to get a warrant would jeopardize public safety or where evidence is in immediate danger of being destroyed, they do not need


But the Mitchells’ case is different from the exigent circumstance exception to the need to get a warrant.


The Mitchells had no evidence of a crime in their homes except a good vantage point. Their homes, instead, were chosen as a place to hole up while conducting the investigation.


And given that this is a time of peace, the police needed the consent of the owners before entering their homes and raiding their refrigerator.


Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.


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