Supreme Court

"Our Homes Are Supposed To Be Our Castles"

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The Cato Institute's Tim Lynch explains what the Supreme Court got wrong today in its 8-1 decision in Kentucky v. King:

In this case, the police were after a drug dealer after he fled from a controlled-buy transaction.  The dealer entered some apartment but the police were unsure of the unit number.  As the police got closer, they could smell marijuana coming from a nearby apartment.  Instead of posting an officer nearby and applying for a warrant, they decided to bang on the door, shouting "Police!"  Hearing some rustling inside, the police broke down the door so evidence could not be destroyed.  The occupants were arrested on drug charges and they later challenged the legality of the police entry and search.  (As it happens, the dealer the police were trying to capture was found in another apartment.)

The lower courts have generally frowned on what they describe as exigencies manufactured by police conduct, but the Supreme Court has now overturned those lower court precedents by a 8-1 vote.  In dissent, Justice Ginsburg asked the right question: "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?"

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133 responses to “"Our Homes Are Supposed To Be Our Castles"

  1. That is a disastrous ruling.

  2. I’m actually surprised Thomas was one of the 8.

    1. So am I, he usually is more sensible than this.

      1. Ditto, very disappointing.

        1. ON second review, see here:
          http://volokh.com/2011/05/16/k…..umstances/

          the case was remanded. note:
          “Finally, it’s worth noting that the Court’s opinion is quite narrow. In particular, the Court did not conclude that the entry was lawful. Whether the police had exigent circumstances was not before the Court: The only issue was the test for police-created exigent circumstances. So now the case is remanded back to the Kentucky courts for more proceedings in light of the Court’s new test.”

          Still not great, but better than the initial Cato post would make you think.

          1. The ruling still seems to give the police the ability to create “exigent circumstances” pretty easily.

  3. So you are now presumed guilty for (a) living near pot smokers and (b) making noise in your apartment?

    Wow.

    1. Yes! We’re living in a police state!

      1. Oh, don’t be so silly. If it were a police state, I’m sure the major news outlets would be letting us know.

        1. If it was a police state, the media would be doing their business, by not making it obvious so we could argue about it. 😉

    2. Move away from all libertarians

      1. Does North Korea accept immigrants?

      2. Some of us are in it for the guns, not the pot.

        1. And others… for the porn.

          1. well, I’m not a saint. You can stay where you are

  4. That’s just plain depressing.

  5. Something tells me that if this had been related to a non-drug crime more justices would have taken the position that Ginsberg took. If it had been, for example, stolen televisions the issue would have been more clear for these people. What we have in America, are too many judges who are “on drugs”. What I mean by this is they feel a need to be “tough on drugs” even if that means running rough-shod over the 4th Amendment. Apparently it even impacts judges who have no term limits.

    1. I was just going to post something to that effect.

    2. You mean, if the police had smelled stolen televisions in the apartment?

      Committing a crime that produces a distinct odor is obviously going to make you much more vulnerable to being caught. You don’t like that fact, don’t break the law.

      1. If you have nothing to hide you don’t have to worry about living in a police state.

  6. Well, any respect I had for Thomas just went out the door. I’m not looking forward to when the Indiana case about resisting unlawful entry by police makes its way to the SCOTUS. Bye bye Fourth Amendment when that happens.

    1. For realsies. My bf was being way more pessimistic on that case than even I was, but I’m now certain he was right. We are so fucked.

  7. the police were after a drug dealer after he fled from a controlled-buy transaction. The dealer entered some apartment but the police were unsure of the unit number. As the police got closer, they could smell marijuana coming from a nearby apartment.

    ODORS DO NOT WORK THAT WAY LINDA!

    1. IIRC, didn’t the SC rule years ago that the “odor” of marijuana coming from an apt. (house, trailer) was not probable cause to enter since other legal substances smell quite similar to burning marijuana?

      1. Googling shows that MA and WA state courts have ruled thus, but no word on SCOTUS.

        more here

        In [United States v.] Humphries the court acknowledged that “[w]hile smelling marijuana does not assure that marijuana is still present, the odor certainly provides probable cause to believe that it is.”6 But this probable cause, or even knowledge of the presence of marijuana, does not in itself authorize the police to search any place or arrest any person in the area. The police must have additional factors to “localize” or “particularize” the placement of the marijuana to justify a search or arrest.7

        To substantiate a warrantless search, “the question is whether the totality of the circumstances is sufficient to warrant a reasonable person to believe that contraband or evidence of a crime will be found in a particular place.”8 When considering the legality of a warrantless arrest, one considers “whether the totality of the circumstances indicate to a reasonable person that a ‘suspect has committed, is committing, or is about to commit’ a crime.”9 But in either instance, the “quantum of facts required for the officer to search or seize is probable cause” for either a search or seizure.10

        The officer had probable cause to arrest Humphries because he recognized the odor of marijuana and was able to “localize its source,” namely, Humphries. In addition, there were other factors that strengthened the officer’s conclusion that probable cause existed, including Humphries’s evasive conduct, his apparent check for a weapon, and the fact that the encounter took place in an area known for drug trafficking.

      2. The MA court ruled that the odor of marijuana was not probable cause to search a passenger in a vehicle because smoking pot and possession of less than an ounce are not crimes in MA. It was a pretty narrow ruling, since it doesn’t rule out searching the driver, because driving under the influence is a crime, nor does it rule out searches based on the smell of, say, crack smoke.

    2. I guess police can see “stink lines” like you see in cartoons.

  8. So cops are like wild animals now? You have to remain completely silent and motionless if you come accross one or else it will attack you?

    1. Nothing has changed in that regard.

    2. I’ve felt that way for a long time now (maybe that simile appeals to me because I spend a lot of time in the woods doing nature photography) but it’s depressing to hear the USSC make it official and sanctioned.

    3. Ummm, not exactly. Remember, it didn’t say the police had to actually hear something. It said the police had to say they heard something. Pretty much, this ruling allows the cops to enter any home/apartment/business they wish simply by saying they heard something questionable inside.

      Question: is it illegal to build a punji trap inside your door as a security device?

      1. Hey Now!

        They said they smelled something too!

        That is quite a bit higher burden of proof than just saying they heard something!

      2. “Question: is it illegal to build a punji trap inside your door as a security device?”

        If it is intended to hurt poor wittle storm troopers, yes. If it is intended to capture evil cancer patients who are using medical marijuana it is just fine.

        1. Actually, there were some cases on this in Florida quite a while back. Yes, it is illegal. I think both cases had to do with thieves entering via the roof – so you could never have a legitimate purpose for using that entry. “yes officer, I was lost and climbed on this roof and pried my way into the skylight by mistake.”

          1. Interesting, so I can’t booby trap my house against criminals whether or not they are wearing costumes?

            1. That’s part of the answer right there. I seem to remember after there were two incidents in a very short period there was much discussion on TV about the topic. The answer for “why is it illegal” came back to “what if it isn’t a thief?” They added the example of “what if it is a firefighter responding to a call?”

          2. I think I remember a civil suit where some thief was electrocuted when he rappelled into a warehouse and the owner had chicken-wire hooked up to cook an intruder. IIRC, the thief’s family sued the owner and won a pretty large judgement because there was not a danger sign at the skylight.

            Going to Crackerty’s comment, perhaps there’s a “multiple-senses” threshold the cops will have to meet in the future. They must “observe” possible action with two senses before they have PC?

            1. chicken-wire hooked up to cook an intruder.

              So, the motion-activated 5kw Propety Defense Tesla Coil is right out then. Damn.

              How about some Skynet-ish robots? I mean, they just need the capability to feel threatened bodily, and then they can legally defend themselves in the course of securing your property, right?

            2. What if it was someone parachuting from a downed plane?

              1. What if it was someone parachuting from a downed plane?

                So true.

                Booby traps do not discriminate between intruders and guests. I do support findings of liabilities against homeowners for this narrow reason, even if the plaintiff was a burglar.

                I do, of course, not support extending this principle to active resistance against a home invader by an occupant.

    4. Are you kidding? If you succumb to the instinct to freeze like the prey the cops think you are, they’ll force their way in regardless because the residence suddenly became “suspiciously silent”. Please.

  9. Between the laws in the People’s Republic of Illinois, this shit from Kentuckistan and the the recent ruling by the Supreme Court of Indianus, the midwest is going to hell in a bucket. Pretty much all they have left now is Skyline Chili.

    1. Skyline Chili?

      Where’s barfman?

      1. FUCK YOU!!! That’s the food of the gods.

        1. You’re gonna OD on all that cheese, man.

          1. only until Mooshelle outlaws the glory that is a five-way. Now, where did I leave my oyster crackers and Crystal?

        2. amen. sing it brother.

      2. That stuff is not chili. Chili has peppers, onions, and meat. No beans, it isn’t soup, and it sure as hell ain’t that stuff.

        1. Sounds like spicy sloppy joe’s. Chili has beans, which is why I don’t really care for chili. Unless you are putting it on your dog or burger, in which case they leave out the beans. Hey, I don’t make the rules, I just ignorantly parrot them on internet forums..

          Ever had a chili slaw dog at The Varsity in Atlanta. It’s a gawdawful mess, but it is an experience to be enjoyed at least once.

          1. You infidels. That’s the beauty of Cincinnati chili. Don’t like beans? Get a three way. Want beans? Get a four or five way. The permutations are endless! (Well, actually, there are only about 4-5 of them, but whatever.)

            Want a coney? the beans are cooked separately so as not to fuck up the dog. Same with the (raw) onions.

            Oh, and I’ve had a chili slaw dog at The Varsity. It. Was. Awesome.

            1. Guys, save your time and just go read the same arguments from this weekend’s chili thread on fark.

              1. [hangs head in shame for jacking thread]

                1. Don’t be ashamed, sloopy. I make my own Skyline and it is indeed the food of the gods.

          2. I haven’t been to the Varisty since ’76 or so.

          3. Chili has beans.

            What chili does not have (and why Skyline is not “chili”) is fucking chocolate and brown sugar. That stuff is for pies and Rolling Stones songs.

            1. Chili has chocolate when I make it, and I make the best Chili ever made by anyone anywhere. It shouldn’t be sweet or taste like chocolate, but some chocolate is essential. Chocolate or cocoa is often used as a spice with meat in Mexico and Central America.

              1. I would also like to add that beans are an acceptable ingredient, but not an essential ingredient in Chili.

                That is all and no more discussion on the subject will be tolerated.

                1. My entirely unsophisticated and unscientific opinion is that mole pablano sauce is a crime against humanity which should be punishable by death. Or having to eat mole pablano.

            2. There is not brown sugar in Skyline chili (at least not in the recipe I have). The chocolate in it is baking chocolate, entirely unsweetened.

        2. Chili consists of the following:

          Chili.
          Salt.
          Cumin.
          Garlic.
          Water.
          Meat (preferably pork).

          All other ingredients can only detract from the magnificence that is New-Mex chili.

          1. More than one meat is better.

            And I usual put it a little onion sauted in bacon fat. Call me a heretic if you must, but there it is.

            Oh, and cracked pepper.

            Beans are only for when you don’t have enough of the above to serve everybody who’s coming to the table.

    2. So true. I was thinking about selling my house in IL and moving to IN, where I work, or not too far away in KY, but I’m pretty sure I’m screwed regardless of where I live in this area. Yes, yes, I know I can move to another area of the country, but my kids live here with my ex.

      1. Galt’s Gulch is about the only option left.

    3. Pretty much all they have left now is Skyline Chili.

      “I have you know, day Cincinnati is da cheeli capital of da wer-yuld.”
      “Oh yeah, well I don’t think you let the Mexican boys know you were having a contest. A Mexican would ride up here on goat with an onion and kick your ass. Of course, he’d need a ride home. ‘Can’t ride home on a bowl of goat,’ I always say.”

  10. So can we declare the 4th as much of a dead letter as the 10th, and just stop worrying about it?

    1. 4th? 4th what? Get back in line, drop your pants and bend over. No, I don’t have any lube.

    2. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

      1. Yeah, well don’t forget, T.J., that you also wrote, “all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed,” and that to change it requires that we pledge our lives, our fortunes and our sacred honor. Most people aren’t quite up for that yet.

        1. “Most people aren’t quite up for that yet.” Or have any honor to pledge, it seems. The founders would be rebelling* for less.

          *I usually call it “The American Rebellion”. I likes me some rebels. Go UNLV!

  11. Hmm…reading the police reports that the local newspaper publishes, they routinely mention occupants cited for drugs after officers smell marijuana in the hallways (yes, ‘routinely’ as it happens with astonishing frequency).

    The reports never mention how they gain entry.

    I’m not at all surprised by the ruling…

    1. The door was unlocked.

    2. They say “let us in now, or we’ll come back with a warrant”.
      Sometimes they manage to get people out of their apartments and refuse to let them back in until they get a warrant (I’m not sure how that is legal, but it does seem to happen, probably something about destroying evidence.).

      A friend of mine had this happen to him because he told the truth about what he saw when a local state cop shot and killed someone.

      1. What did he say? Details, man. Details!

  12. So how would the Supreme Court have ruled if the case was from Massachusetts?

    SJC: Odor of marijuana not enough to order suspect out of car.

    1. The MA ruling is a result of the fact that you can no longer be arrested for possessing marijuana in MA.

      Therefore the odor of marijuana is no longer probable cause.

      1. So different standards of probable cause can coexist across the country, just because something is legal in one state, but not in another?

        1. Actually…yes. In some states, a visible firearm in an auto is probable cause. In others, it is the way you are required to carry it if you don’t have a CCW. Same goes for open liquor containers.

        2. Of course.

        3. So different standards of probable cause can coexist across the country, just because something is legal in one state, but not in another?

          Well, duh, yes. Unless you want to have one world government with the exact same laws everywhere, in which case you can expect the concept of “probable cause” to go bye-bye.

          Competition between jurisdictions is a GOOD thing.

  13. Depressing. That’s all there is to say about it.

  14. It’s not as if it’s a verifiable fact that the cops smelled pot; we are expected to take their word for it.

    1. It’s not a verifiable fact that the cop heard moaning from the trunk in which the kidnapping victim was bound and gagged; we are expected to take their word for it.

      1. It is, however, a verifiable fact that we saw Tulpa’s strawman hitchhiking on this thread and we collectively refused to give him a ride and flipped him the bird as we drove past.

      2. Perhaps you believe that giving the police carte blanche to search whereever and whenever they please is an expedient way to promote the public safety.

        Not only is this unprincipled; it is incorrect. Individual rights and the protections of the common law did not spring up out of a vacuum; they’re based on the REAL experience that unconstrained authority is regularly abused. The fact that the cops will occasionally catch a real bad guy that way does not justify the damage done to all by unrestrained arbitrary authority. The cops become just another gang.

  15. “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?”
    About as secure as a homeowner whose house the local government wants to seize and give it to a richer person so the government will get more tax money.
    BTW Ginsburg, how did you vote in that case?
    About as secure in right to free speech, sixtly days before an election.
    BTW Ginsburg, how did you vote in that case?

    If someone else voted against the majority, Ginsburg would have voted with the majority. She just voted in dissent to stand out.
    She is a woman, very old, but a woman nevertheless, and thus, vanity is everything.

    1. But she’s not the only member of the Supreme Court Vaginal Caucus, so I don’t know about that.

      Perhaps she just had a moment of clarity for a change? Maybe the cancer drugs are causing schizophrenia, meaning we can hope for more opinions like this in the future?

      Either way, I hope she stays on the bench and then dies of cancer the day after Obama is voted out of office.

      1. Perhaps she just had a moment of clarity for a change?

        Reverse Alzheimer’s?

  16. What i find troubling is that, from a cursory reading of the opinion, is that these were state pigs. Whether they were state or federal pigs, IMHO, makes a difference. I can see SCOTUS telling Kentucky that they can’t limit what federal pigs can do. And I wouldn’t expect SCOTUS to put any limitation on the behavior of federal pigs.

    But these were state pigs. And I think Kentucky should have the authority to draw the lines of their own pigs. Otherwise, the 10th amendment is meaningless. Pluss I remember a case about how the federal constitution was a floor, not a ceiling. That states can invoke more stringent rules to reign in the executive. Maybe Kentucky doesn’t want pigs to just barge into someone’s house if they smell weed. Of course we know SCOTUS will rarely reign in the executive. I firmly believe that if Dred Scott, Hirybyahsi, Korematsu, Plessy were to be before SCOTUS again, they’d rule exactly the same way. They used Wickard, for example. And everyone knows what a crock of shit opinion that is.

    1. I firmly believe that if Dred Scott, Hirybyahsi, Korematsu, Plessy were to be before SCOTUS again, they’d rule exactly the same way.

      They would definitely do so with respect to Korematsu if the government were relocating sex offenders and no-fly list members to an internment camp near Lone Pine, California and they filed a class action lawsuit for injunctive relief.

  17. That’s awesome – it’s good to know that if my next door neighbor smokes some weed, the cops can bust down my door and shoot my dogs.

    1. And don’t you DARE try to defend yourself! You can be arrested for not showing proper deference to people who are violating the U.S. Constitution.

      1. Yeah, Indiana just ruled that it is unlawful to resist the cops making an unlawful entry of your home.

        1. About a year and a half ago I started learning Spanish so I could have more options in case this country turned into a police state.

          We are now there. Should I stay and fight or go Galt in a Spanish-speaking country?

          1. Should I stay and fight or go Galt in a Spanish-speaking country?

            Yes.

          2. A coworker and I were just talking about going Galt. He says the tipping point is going to be when the feds go after retirement accounts. I say stay and fight.

            1. Who’s retirement account?

              Treasury to tap pensions to help fund government

              http://www.washingtonpost.com/…..ml?hpid=z1

          3. Saw Red Dawn (the original) recently. I think Rand’s Riflemen would be an awesome name for a resistance group, from foreign or domestic communists.

            I need to copyright that.

            1. Beat you to it.

          4. El Oso hangs out in Colombia.

          5. I can recommend Panama.

            1. Used to be Colombia until the gringos showed up. Hey, this shit has been going on for a long time.

        2. I find that bat-shit insane. It is nothing more than a license to kill.

  18. That 8-1 bit is disturbing. More proof that both leftists and rightists are bad about drugs.

  19. MJ-flavored incense! Get your MJ-flavored incense now!

    1. why would I want anything that smelled like #23?

  20. Shit, Virginia recently made the FAKE pot (“spice”) illegal. Just a a couple weeks ago, they were reporting the first arrest under the new law.

  21. To quote Judge Robert Bork: “America is quickly becoming a country I no longer recognize.”

  22. “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?”

    About as secure as they are when urban planners can pound a notice on your door with the words “eviction”, “blight” and “public purpose” on it.

    You don’t own your home, you rent temporary space from the government.

    1. Don’t forget eminent domain.

  23. Compare this ruling to the other post today about Baghdad decor. When it comes to the right to be secure in one’s home, Iraq is more libertarian than America.

  24. “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.”

    I don’t even have the energy to make a joke about that.

  25. Ah it takes me back to the case where a cop knew what pot sounded like in a trunk of a car.

    Drug war trumps the Constution.

    1. Well, the Constitution.

  26. If you don’t smoke pot, you have nothing to worry about. Is that Thomas’s line of thinking?

    1. If you don’t smoke pot, you have nothing to worry about. Is that Thomas’s line of thinking?

      I think that’s pretty much everyone’s line of thinking, from the cops, up through state and federal legislative branches and to the supreme court and the executives.

      Did I forget anyone?

      1. The Supreme Court minus Ginsburg.

      2. “”Did I forget anyone?””

        Federal prosecutors? Or where you covering that in cops?

      3. You left out “vast majority of the American public”.

  27. Just heard Nina Totenberg report this story on NPR’s “All Things Considered.”

    Their website says the audio will be available at 7:00 p.m.

  28. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

    As if the only reason to move around in your apartment is to destroy evidence. What if what I’m doing is putting the dog in its crate to prevent it from getting gunned down by some roid case with a badge?

    Aren’t they really just saying that moving around in your apartment, which in and of itself gives no reason to believe you are destroying evidence, is a waiver of your 4th Amendment rights?

    “Stop moving” just joined “stop resisting” on the list of cop get-out-of-the-Constitution-free cards.

    1. Welcome to the new America. Get out now before they build a fence.

      That sad thing is that’s not as trollish of a comment as it once was.

    2. In general, you are correct that that is a fallacious justification…but of course in this case, they almost certainly were trying to destroy evidence as they were doing precisely what the cops thought they were doing.

    3. Next it will also be considered probable cause if things are too quiet.

  29. Here is a hoot from the actual opinion: This holding provides ample protection for the privacy rights that the [4th] Amendment protects.

    What is sad is that fuck Alito could actually read that opinion, read that sentence, and keep a straight face.

    1. As if “Strip Search” Sammy every met a police action he didn’t approve of.

  30. “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?”

    Better question: What exactly does marijuana “sound” like?

    1. One hand clapping from beneath a fallen tree in a lonely forest.

    2. “”Better question: What exactly does marijuana “sound” like?””

      The answer is something other than what the cops create in their own heads, according to the ruling.

  31. Who knew that Joseph Heller wrote Supreme Court Opinions?

  32. I am waiting for the Thomas-Scalia apologists to tell me yet again how wonderful these beautiful juridical motherfuckers are in defense of Originalist, Constitutionalist thinking.

    Yeah, that’s what I fucking thought.

    And Volokh’s second reading opinion can blow me, for all the reasons discussed above. It’s all well and good to say that police actions that don’t violate the Fourth Amendment cannot create exigencies, but the bottom line is that the police are given broad latitude to determine what is an exigency, which broad latitude exists nowhere in the plain text of the Fourth Amendment. Scalitomas had the power to weigh in hard on this as an abomination and chose to suck the big throbbing cock of statism.

    1. Scalitomas

      Recently discovered variety of tumor.

  33. One of Clinton’s appointees has some sense. The Bush/Obama/Clinton/Reagan rest of them — what the fuck?

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