The Supreme Court's Advice About the Fourth Amendment: Use It or Lose It

Writing about last week's 8-to-1 Supreme Court decision in Kentucky v. King—which held that police may break into a home without a warrant if they fear that evidence is being destroyed, even when their presence precipitates the evidence destruction—Linda Greenhouse focuses on the majority's contention that the defendant challenging the search, Hollis King, could have avoided it if only he had asserted his Fourth Amendment rights. "Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence," wrote Justice Samuel Alito, "have only themselves to blame for the warrantless exigent-circumstances search that may ensue."

Here is the situation in which Alito thinks King should have firmly but politely reminded the cops at his door about the Fourth Amendment: The police had been chasing a suspected crack dealer at a Lexington, Kentucky, apartment complex and mistakenly believed he had ducked into King's unit because of the "very strong odor of burnt marijuana" emanating from it. They banged on the door and shouted, "Police!Police! Police!" According to the official account, the cops heard people moving inside and feared that evidence was being destroyed, so they decided to break down the door. "Respondent argues that the officers 'demanded' entry to the apartment," Alito wrote, "but he has not pointed to any evidence in the record that supports this assertion."

How much evidence do we need? Since the officers thought they had cornered a crack dealer, it is quite plausible that their demeanor suggested to King he had no choice about letting them in. The distinction between a request and a demand is crucial because the Court agreed the search would have been illegal if the police had threatened to break down the door from the beginning, instead of doing so after allegedly becoming concerned about the destruction of evidence. But as Greenhouse notes, this distinction is often hard to draw, given the coercive overtones of interactions in which an armed agent of the state "requests" something he has no authority to demand:

I don't know about other people, but I have never found an uninvited encounter with the police to be a source of comfort. Once, driving through a quiet residential neighborhood in Washington on the way home from a theater performance, my husband and I were unaccountably pulled over by a police officer in a squad car. The officer asked my husband (a lawyer) for his license and registration. Did he comply? Of course. It occurred to neither of us to say: "Officer, I invoke the Fourth Amendment and request that you articulate the suspicion that has caused you to pull us over." We had not been drinking or using drugs, we had nothing to hide, and we had broken no law. But the incident was nonetheless unnerving, and my blood pressure goes up as I recall it years later.

Greenhouse observes that the Court tends to minimize the pressure to cooperate in situations like this. It has, for example, upheld ostensibly consensual searches of people on buses by armed and uniformed police officers even when the passengers are not informed of their right to refuse. According to Justice Anthony Kennedy, who wrote the majority opinion in that case, the challenged search, which discovered nearly two pounds of cocaine hidden in the underwear of two men, clearly was voluntary because there was "no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice." The fact that such "consensual" searches routinely turn up contraband speaks volumes about the gap between the Court's view of police interactions and the intimidating reality. The Court has even described the situation of an illegal immigrant caught in an INS workplace raid as a "classic consensual encounter," since employees theoretically are free to leave the premises.

It is by no means clear, by the way, that anyone was in fact trying to destroy evidence in Hollis King's apartment, since plenty of it was found after the police broke in. Among other things, the officers discovered "a guest who was smoking marijuana" and "marijuana and powder cocaine in plain view," which suggests (to be charitable) that they misinterpreted the sounds they heard through the door. (It also suggests that if King had followed Alito's advice and answered the door, the cops could have said the search was justified by the contraband they glimpsed through the opening.) Although the Court assumed for the sake of argument that "exigent circumstances" existed, it directed the Kentucky Supreme Court to decide whether sounds of movement—which you might expect to hear in any apartment containing people—were enough to suggest the destruction of evidence and therefore justify the forcible entry and warrantless search. Assuming they were, the Supreme Court essentially has created a new "sniff, knock, listen, and kick" rule, under which police can retroactively validate a warrantless search simply by claiming they smelled something funny and heard something suspicious.

More on Kentucky v. King here. I discussed "consensual" bus searches in a 2002 column.