Dan Casey is The Roanoke Times' metro columnist.

dan.casey
@roanoke.com
981-3423

Dan Casey

Recent columns

• 82 years of food fit for the King
• At work, on floor, in life: Rick Schmitt had all the right moves
• Murder Hole's reputation built on underground lore

• Column archive

Read Dan's blog

• Sunday’s column: Did Elvis’ last meal come from the Texas Tavern?
• Delegate: ‘Do you agree choices have consequences?’
• The wide OPEN yonder on the Saturday thread

The image that's hard to shake is of the 10-year-old girl soundly sleeping in her bed, in her home, in the Apple Tree Village subdivision in Cloverdale.

With a civilian beside him, a Botetourt County sheriff's deputy shined a flashlight into her slumbering face and wrestled the 10-year-old's bedcovers away.

The startled girl roused her sleeping parents, who found the deputy and a civilian in their home, after midnight, without a warrant.

They were looking for the civilian's 16-year-old stepdaughter.

Does that sound reasonable you?

As you may have read in reporter Mike Gangloff's front page story Wednesday, it did to a slim majority of the 4th U.S. Circuit Court of Appeals in Richmond.

And that is why, unless the U.S. Supreme Court takes the case, Mark and Cheryl Hunsberger's $10 million lawsuit against the Botetourt County Sheriff's Office stands as dismissed.

I am no lawyer. Maybe that's why it's hard for me to comprehend why this wasn't a grievous violation of the Fourth Amendment's protections against unreasonable search and seizure.

This is what happened at the Hunsberger home, early one morning in February 2007:

A neighbor who wrongly assumed the Hunsbergers were away called the sheriff after seeing cars going to and from their home.

When police arrived, nobody answered the Hunsbergers' door. The deputy called the owners of cars parked outside the house.

One of them was the wayward teenage girl's stepfather, who thought she was staying elsewhere. The deputy and the stepfather heard noises in the house, so they entered it and searched it, winding up in the sleeping 10-year-old's room.

The older girl was hiding elsewhere in the house, where she and some others had been drinking beer with the Hunsbergers' older children.

A subsequent state police investigation found no criminal violation by the Botetourt sheriff's deputy or the civilian.

That's understandable. It was a mistake, that's all. But it doesn't mean the Hunsbergers' rights hadn't been trampled upon.

U.S. District Court Judge Samuel Wilson thought the case should go to a jury.

In reaching the opposite conclusion, five judges on the 4th U.S. Circuit Court of Appeals cited case law that supports warrantless searches under something called "exigent circumstances."

In layman's terms, that means, "in an emergency."

But remember, this was no terrorism investigation, nor were the police in pursuit of a mad killer.

They were looking for a teenage girl who had lied to her parents about where she was staying that night.

Does that sound like any kind of emergency?

The dissenting four judges thought not, and they were less than politic in expressing it. In writing, they more or less accused the majority of twisting previous court decisions to support the legality of the search.

"If the sanctity of the home is to mean anything, then the police must understand that they cannot use the narrow doctrine of exigency as a crowbar to pry open our homes to unnecessary intrusions," they wrote.

Now, $10 million seems like an awful lot of compensation for whatever harm the Hunsbergers suffered.

But if they don't deserve anything -- even an apology -- you've got to wonder whether the Fourth Amendment is real.

And when it doesn't protect a sleeping 10-year-old from the warrantless actions of police during no great emergency, that raises another question:

Who does it protect?