Justice Roach and Justice Wintersheimer would weaken 4Th. Amendment and support police lying to bypass search warrant requirements of the Bill of Rights.

    LawReader Editorial by Senior Editor Stan Billingsley-


  Justice Roach (and Wintersheimer) issued a dissent Thursday in Krause v. Commonwealth which supports the right of the police to lie in order to avoid the 4th. Amendment prohibition against searches without a search warrant. 

    This ruling shows the Commonwealth Attorneys Association knew what they were doing when they  recently endorsed  Justice Roach in his bid to hold on to the Supreme Court seat to which Gov. Fletcher appointed him in the Nov. 7th.

election.  He is being opposed by  Fayette Circuit Judge Mary Noble.

    This McCracken County case involved the issue of how far the police could go in lying to a citizen in order to obtain entry into their home.  The police officer, instead of seeking a search warrant, made up a story involving the rape of a child in order to gain entry to a suspects residence.  The story was a complete fabrication.  Once inside, the officer took advantage of the plain view exception to the Fourth Amendment to obtain evidence against the drug suspect whom he was investigating.
The Commonwealth took the position that it is alright for the police to lie and that the citizen waived their 4th. Amendment rights.  While the court found this particular lie to be a violation of the 4th. Amendment, it cautiously preserved the right of the police to use ruses in proper situations.

  In Krause the majority of the Court held that:

 -the Fourth and Fourteenth Amendments require that a consent (to search) not be coerced, by explicit or implicit means . . .for, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed .-

 The majority quoted a U.S. Supreme Court decision which described other police ruses:


-widespread use of this type of tactic could quickly undermine “the set of values reflecting society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness-

 The majority in this decision consisted of:  Chief Justice Lambert, Justice Graves, Justice McAnulty, Justice Minton, and Justice Scott.

     The balancing of the interests of the police versus those of the public are important issues, and how a judge weighs these interests is a matter of valid public concern.  We have noted over the years that almost all of the trial judges we have seen defeated for re-election have strongly supported the prosecutorial view that all police actions are okay and that any recognition of defendants rights is a sign of weakness. 

 Those trial judges that try to fairly balance the rights of the public against the power of the government seem to get a lot of flak from the press, the police and from prosecutors, but in the end the public seems to value their fairness and more often than not returns them to office.

 The appellate judges are so far removed from public scrutiny, that their positions on such issues are rarely are affected by the voting public.  Justice Wintersheimer, who is retiring in January, has built a reputation that is best stated by Judge Keller who is quoted in the Courier Journal as having said, that- Wintersheimer rules for one defendant each year just so it cannot be said that he never rules for a defendant.  

 While one ruling may not be sufficient to predict a whole career, this particular ruling in the face of the contrary ruling by the majority of the court, would seem to indicate that Justice Roach is nominating himself as the heir-apparent for the Wintersheimer anti-Bill of Rights philosophy.  We believe that Justice Roach, who brings impressive legal credentials to the bench, would have benefited from a tour of duty in the real world by having sat for a few years on the trial bench.

We believe that the truly conservative judge is the one who upholds the Bill of Rights as it is written, and does not contenance lying by the police or the government.


  1. Bill Adkins
    8:37 am on October 22nd, 2006

    Is anyone surprised? Has Wintersheimer EVER found a police act he considered unconstitutional? If we continue down this road we become N. Korea.