nice way of saying, "Get a life.") If the 0./. Simpson case was like the 95% of all murder cases tried in America, the pretrial rulings on the admissibility of evidence and the legality of the search would go unnoticed by the media, the case would be tried in an empty courtroom, and the public would never know. The lawyers would file their briefs, the trial court would rule against the defendant (as trial courts aJways do; it is, after all, an unwritten rule of criminal procedure), and the trial would go on inexorably to its conclusion. "The court is taking a rrcfss during this important testimony, ~o now we utili hear a word from our spenser: Ginsu kniIlfS." Sometime in 1996, a panel of the California Court of Appeals will rule on the legality In its mind of the search, and, about two years after that, the California Supreme Court will rule, if it bothers to take the case. Right or wrong, the legal outcome does not matter to anyone else in this country; it only matters to the parties, the criminal law buffs who are addicted to COURT TV and O/NN, and the media persons who need to write about something to justify their existence and the ever-increasing desire for the public about everything Simpson that they have created. The media has created a feeding frenzy over the O.J. Simpson case. The motion to sequester the jury includes the results of a Nexis search showing over 15,000 print articles about the case. "Kllock, kllock." "Wlto's tltere?" "0./." "0./. wlto?" "Yollitave befll selecled for jury dllty. " In playing to the prurient interest of the public in the potential downfall of the rich and famous, the banal has been supplanted by the trivial. 'This is Roblll Uaclt fur 'Lifestyles of tile Riel! alld Famolls.' Today we are m tlte day room all tile fiftlt floor of the Los Angeles County Jail wah Heismanll Troplry and FL H1l11 of Farner 0./. Simpsoll wlrere 0./. is learnillg to Ileedlepoillt wilh his spirilual advisor alld close jriflld, fellow Hall of Farner Rosy Greer. 0./., wllfCe did YO" gel tire idea for Ihal picillre of tire Sail Quellt", gas clramber III your design?" Only in the Simpson case would COURT TV handicap which of the L.A. County Superior Court judges would be assigned the case. Judge Ito was a 3-2 favorite in the Las Vegas and London betting parlors. Only in a country where the public is force fed anything and everything Simpson from the tabloids, the networks, and O/NN would the public care. In a swift preemptive strike, the media has created job security by the Simpson case. Even the not-so-vulnerable
NatIOnal EnquITer scooped the legitimate media by five days on the Phoenix mock trial that produced a mock acquittal. How did the prosecutors expect the mock jurors to keep quiet, anyway? Everybody but the networks, Time, and Newsweek have been buying information about the case. Even the guys who sold the knife imagined by the prosecution to be the murder weapon gol 512,500 to lalk about it in National Enquirer. If you believe the tabloids (print and television). the prosecutors are buying information, too. The defense offered 5500,000 for information through its 800 number. That
Comparing tbe facts of tbe case at hand to tbose of tbe aforementioned cases, the entry of tbe officers onto Simpson's property and tbe seizure of el'idence is easily justified, as "exigent circumstances" clearly existed. will certainly be a ,'aluable source of reliable leads and information. Oliver Stone's "Natural Born Killers" is too close to reality for comfort. This orgy of information about the Simpson case has extended to the trial court's rulings, So what about the search of his house and Bronco? Are they legal? What about this "exigent circumstances" exception to the requirement that searches of home only be conducted with a search warrant? Who cares? What I think about the search does not matter because I am not one of the judges of the case. I proffer to you some observations about the legality of the search under the settled principles of the Fourth Amendment. YOli can take it for what it is worth.
Fourth Amendment Protection of the Home from Warrantless Searches One of the core values of the Fourth Amendment is to protect the home from unreasonable searches and seizures. Payloll v. New York, 445 U.s. 573, 584-B5 (1980). "IPlhysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States 1I. Ullited States Dist. Court for the Easlern DISI., 407 U.s. 297, 313 (1972). Thus, warrantless entries into the home are presumptively unreasonable, and the government has a heavy burden to sustain them. Paytall, +15 U.s. at 586-87 & n.25; Ullited Siaies I'. Karo, 468 U.s. 705, 717 (1984). The protection of the home also extends to the curtilage, which is defined as "the area ... so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." United States {I, DUIIIl,4 0 U.S. 294,301 (1987). The functional test of curtilage is: (1) proximity to the home; (2) whether there is a fence; (3) the nature of the uses of the area; (4) the steps taken to protect the area from observation by passersby. No one factor is controlling. Id. An additional factor is whether the area is "intimately linked to the home, both physically and psychologically, where privacy expectations are heightened." Califomia v. Ciraolo, 476 U.S. 207,212-13 (1986). A fence does not make something within the curtilage, but it certainly evidences an effort to heighten one's expectation of privacy. OliI"r v. Ullited siales, 466 U.S. 170,182 (1984). The yard of a private residence is normally considered a part of the curtilage. People v. Thompsoll, 221 Cal.App.3d 923,970 Cal.Rptr. 863 (2d DisI.199O).
Simpson's compound certainly had complete Fourth Amendment protection from an unjustified or overintense warrantless intrusion. Can the prosecution sustain its burden of proof to justify this search on exigent circumstances? I think nol Exigent Circumslances Exceptions One catchall exception to the warrant requirement is "exigent circumstances," something never specifically defined, but we know it when we see it. All exigentbased exceptions apply in "those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." Arkansas v. SaNders, 442 U.S. 753, 759 (1979), oI"rntled 011 oillfr 35 ARKANSAS LAWYER
FALL 1994