By Alan Bean
The Supreme Court of the United States just gave police officers permission to evade the fourth amendment at will. Eight justices signed off on this deal; Justice Ruth Bader Ginsburg dissented forcefully.
At issue is the meaning of the Fourth Amendment:
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 Supreme Court has traditionally concluded that “searches and seizures inside a home without a warrant are presumptively unreasonable.” The only exception to this rule is when police are dealing with “exigent circumstances”.
What is an exigent circumstance? Risk of death of serious bodily injury qualifies as exigent. The likely escape of a criminal suspect makes the grade. Finally, police officers can smash open your door if they have reason to believe that evidence is being destroyed.
But there used to be a catch. Police officers were not allowed to create an exigent circumstance by banging on the door or shouting. If signs that evidence was being destroyed inside a private dwelling existed when the police arrived at the scene, they could enter the home without a warrant; but they could not stimulate the destruction of evidence by announcing their presence.
Now that has changed.
The Supreme Court’s recent decision was sparked by Kentucky v. King, a case in which police officers witnessed a drug deal and followed the suspect to an apartment building with doors opening to the left and right. They heard a door close but arrived too late to determine if their man had entered the door on the right or the door on the left. The smell marijuana coming from under one of the doors made their choice for them. After pounding on the door and announcing their presence, the officers say they heard the sounds of moving furniture and determined that evidence was being destroyed. They then kicked in the door and discovered three people, (one of them smoking marijuana) and a variety of illegal drugs “in plain sight.”
It turns out the man the police were chasing was hiding in the apartment across the hall.
The Kentucky Supreme Court concluded that the evidence obtained from the search was not admissible in court because the officers, by knocking loudly and announcing their presence, had created an exigency that would not otherwise have existed.
“The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases” Ruth Bader Ginsburg wrote in a blistering dissent. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.”
In Justice Ginsburg’s view, everything came down to a simple question: “May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.”
Ginsburg believes the issue was settled by the 1948 case Johnson v. United States in which a similar scenario involving opium, a locked door, and the sound of shifting furniture led police officers to enter a home without a warrant. As Justice Robert H. Jackson (the last Supreme Court Justice who never graduated from law school) observed at the time, the warrant requirement is one of the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”
This is the key issue; are the police under the law or are they free to do as they will?
As the court noted in 1948, if the police can escape the warrant requirement by creating an exigent circumstance, “it is difficult to think of [any] case in which [a warrant] should be required.”
Ginsburg, correctly, noted that the police in the Kentucky case could easily have posted an officer at the door while they went in search of a warrant.
There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, ‘persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.’ Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.
Then Ginsburg asked the question that should concern every American citizen:
How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?
Who decides the basis for a “reasonable” search, an officer in the heat of the chase, or an objective magistrate? After the court’s ruling in Kentucky v. King it appears the police are free to make the difficult calls without recourse to a judge.
If Justice Ginsburg is so upset, why do the other eight justices not share her concern?
I’m not sure, but I can make an educated guess. So long as police officers continue to honor the sanctity of the American home in the suburbs, no one is going to worry too much about what’s going down in the hood. There has always been two sets of rules for police officers; one for “good neighborhoods” and a second for “bad neighborhoods”. The Supreme Court’s disastrous ruling in King v. Kentucky simply formalizes the prevailing viewpoint. The eight justices who signed off on this ruling don’t live in good neighborhoods, they live in great neighborhoods. Hence, they have no reason to fear the knock on the door in the dead of night. In their world, the police are still under the law, so who cares if, on the poor side of town, the police are the law.