Today, we mourn the death of the Fourth Amendment

The US Supreme Court today has essentially eviscerated the Constitution’s Fourth Amendment protection against warrantless searches of people’s homes. Not surprisingly, it was yet another consequence of the ongoing failure that is the government’s War on (Some) Drugs.

Remember, the Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The case is a somewhat odd one. The police encounter with the defendant, King, was accidental. After witnessing a controlled drug buy, the suspect went into an apartment building and the police lost track of him. There were two apartments he could have entered, and the police first chose to knock on King’s door – the wrong one – because they could smell marijuana outside the door. No one answered, and the police claim the heard sounds that made them think “someone was destroying evidence inside”, so they broke down the door. Once inside they found King, some marijuana, cocaine, and drug paraphernalia… and no trace of the suspect they were pursuing.

In court, the police claimed “exigent circumstances” – their belief that evidence was being destroyed – allowed them to enter and search without a warrant. After the lower courts accepted this explanation and rejected King’s challenge to the search, he was sentenced to 11 years in prison. The Kentucky Supreme Court then rejected the officers’ claim of exigent circumstances and overturned the conviction.

First, the court held, police cannot “deliberately creat[e] the exigent circumstances with the bad faithintent to avoid the warrant requirement.” (internal quotation marks omitted). Second, even absent bad faith, the court concluded, police may not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” (internal quotation marks omitted). Although the court found no evidence of bad faith, it held that exigent circumstances could not justify the search because it was reasonably foreseeable that the occupants would destroy evidence when thepolice knocked on the door and announced their presence.

     Kentucky v. King, 563 U.S. _____ , 4(2011), [PDF p. 7] (internal citations omitted)

Today’s SCOTUS opinion [PDF warning] reverses the Kentucky opinion, holding that the smell, knocking on the door, and undefined sounds are enough for the police to claim “exigent circumstances” and justify a warrantless entry. Even more disturbing, however, is the Court’s overruling of stricter protections imposed by the courts of some states:

But others, including the Kentucky Supreme Court, have imposed additional requirements that are unsound and that we now reject. (Id. pp. 10-14 [PDF pp. 13-17], for the full arguments).

The decision in this case was 8-1. Justice Ginsburg, in her lone dissent, hits the key issue of this decision with her very first paragraph:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement indrug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.

Id., Dissent, p. 1 [PDF p. 23]

As noted in the article I linked to at the beginning of this post, “Up until this decision, the Supreme Court’s interpretation of the Fourth Amendment has drawn a firm line at the entrance to a home. Warrantless entry has been allowed to a house for the eminently reasonable purposes of rendering emergency assistance to an injured occupant, to protect the well being of an endangered occupant, or the “hot pursuit” of a fleeing felon. In some limited instances, protection of evidence has been allowed, but generally more has been required than happened in this case.” The Court has traditionally imposed a strong burden on police in justifying warrantless searches of a person’s home.

The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctionsbetween our form of government, where officers are under the law, and the police-state where they are the law.” The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” “[T]he police bear a heavy burden,” the Court has cautioned, “when attempting to demonstrate an urgent need that might justify warrantless searches.”

That heavy burden has not been carried here.

King, dissent, p. 2 [PDF p. 24] (internal citations omitted)

Police may now break down your door without having to obtain a warrant, and based on only their claims of subjective things like “a smell” and “hearing sounds”. This is, effectively, no restriction on warrantless searches, since police are rarely (if ever) punished if their statements of subjective impressions are wrong. Moreover, once they have gained entry, anything they find is allowable as evidence against you, even if it has nothing to do with the reason they entered in the first place.

The Fourth Amendment is dead, though I expect the death throes will last for a little while yet.

And in a strong example of irony, for some reason the charges against the suspect the police were originally after were dropped.

END OF LINE.

[Source: Suite101.com article, retrieved 5/17/11]
[Source: Kentucky v. King, 563 U.S. _____ (U.S. Supreme Court slip opinion)(PDF warning), retrieved 5/17/11]

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