Police

"Why Should Fourth Amendment Protections Be Lessened to Prevent the Destruction of Evidence?"

|

The Harlan Institute's Josh Blackman raises some interesting Fourth Amendment questions in light of the Supreme Court's controversial decision this week in Kentucky v. King, which held that police don't need a warrant to enter your home if they suspect that contraband is being destroyed inside. As Blackman writes:

I understand why threats to an officer's safety, or the safety of other's constitutes exigent circumstances that supports vitiating Fourth Amendment rights… But how does the destruction of evidence fit into that calculus? Perhaps if the destruction of evidence (by burning maybe?) poses a threat to others that fits, but what difference does it make if a suspect flushes evidence down the toilet–a plumber may be upset, but no one else is at risk of being harmed.

Now, the obvious answer is that it makes it more difficult for the state to prosecute the crime, and put the bad guy behind bars. But, so what? What "right" does the government have to evidence. I suppose destruction of evidence could be a crime, but my question, more broadly, is why a constitutional right is limited in these cases.

Read the whole thing here. Jacob Sullum commented on a similar case from Indiana earlier today.

NEXT: Reason Contributor Baylen Linnekin Talking Raw Milk Raids on Freedom Watch

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Emails show Kagan had hand in crafting legal defense for Obamacare

    Newly released documents reveal Supreme Court Justice Elena Kagan was more involved with President Obama’s health-care law than she disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.

    Specifically, the documents show that Kagan was involved with crafting the legal defense of the Affordable Care Act in her role as solicitor general, before her appointment to the bench. The Washington-based Media Research Center and Judicial Watch obtained the documents through a Freedom of Information Act (FOIA) lawsuit that was filed in February 2011.

    http://dailycaller.com/2011/05…..obamacare/

    1. They have no shame, she won’t recuse herself.

    2. the Kagan should recuse herself from future cases.

      Recuse the Kagan?

      1. RELEASE THE KAGAN!!

        1. “there can be only one!”

          The Kagen killed Juan Sanchez Philolobos Ramirez.

  2. I didn’t even think about the case from this angle. This is a good point.

    I just thought it opened the door (literally) to any officer that wanted to come into your home at any time he wished. I still can’t figure why Alito and Roberts failed on this. I can see some of the other judges, but not them. There must have been some really bad lawyers presenting their case to the Court.

    1. You seem unaware that Alito has the most prosecution friendly record on the Court and Roberts is not far behind.

      1. +1

        Why Alito and Roberts failed to counter the police? WTF?

    1. Love that link. Not once, but at least twice they call him “Ass. Chief”. LOL

  3. The answer is very simple: The State has an interest in public safety. Many criminals are known to be repeat offenders. If they’re not put behind bars, they’re likely to engage in further criminal activities that can harm the public. It shouldn’t take a lawyer to figure this out.

    1. “Why Should Fourth Amendment Protections Be Lessened to Prevent the Destruction of Evidence?”

      Because “public policy disfavors any such right,” Duh.

      1. Apparently “public policy disfavors” any sort of limitation of government or public policy.

    2. Too bad the State has no interest in due process, or in maintaining even the veneer of a free society anymore. That this power will be incredibly abused shouldn’t take a lawyer to figure out.

      1. libertarians talking about due process is a joke after frothing over summarily firing teachers w/o contractual procedure.

        1. When those teachers are subject to jail time solely as a result of their firing, get back to us about due process, okay, retard?

        2. Yeah, that’s right up there with armed men busting into your house (and potentially shooting you). U shur got me ther! HURR DURR!

        3. So you think employment at will is the same as armed government goons busting into your house. Holy shit, you really are an idiot – how the fuck do you manage to wipe your own ass?

          1. The government helps him.

          2. “how the fuck do you manage to wipe your own ass?”

            That assumes it’s ever wiped.

            1. That assumes it’s ever wiped.

              Good point – I’m probably giving him too much credit.

            2. Hey cut the guy some slack. Maybe he’s in a hurry.

              1. What is this “slack” of which you speak and how does it speed up the wiping process?

          3. due process is due process regardless of circumstance sherlocks. and stop thinking about my ass

            1. Did you get out without your helmet and fall down again?

            2. Shooting someone in the face is shooting someone in the face, regardless of circumstances.

        4. Um, I, at least, would like to see the contracts changed, not violated. Fuck you.

      2. Due process is not decided by some anonymous people posting on Reason’s web site. Due process is decided by the courts.

        1. Close enough. DRINK!

    3. No matter the level of state interest, it cannot contravene the supreme law of the land.

      OTOH, why are we even still talking about the 4th amendment as if it means anything? That beast is as much a dead letter as the 10th, and soon to be lamented 9th.

    4. I have an interest in public safety. Can I bust in to homes and go all death wish?

      1. Oops. In reply to htjyang. Squirrels, etc etc etc

    5. to htjyang-
      I fully agree. Which is why all the dope smokers I’ve known in my life who make more than I do, have better jobs than I do, and are more upright and civic-minded citizens than I am, should be summarily arrested and thrown in prison. It would make the world a better, safer place.

      1. I’m glad we understand each other. By the way, you sound like you’re about to turn yourself in to the police for something….

        1. I don’t smoke dope and I really try to obey the laws. That’s why my life has been such a failure.

          1. A simpler route is to obey the Eleventh Commandment.

    6. If cops smell marijuana coming from the White House, can they bust in without a warrant?

    7. Htjyang – then why have the fourth amendment at all?

    8. “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.”

      Where does it say “except in the interest of public safety”. The 200 years of caselaw involving hot pursuit, etc are staring to obscure a very simply concept stated quite clearly in the text. Stare decisis may have some merit, but at some point, you have to look at the original text. If you don’t like it, fine, change it! But quit watering it down with whimpy decisions!

      1. “”Where does it say “except in the interest of public safety”. “”

        Is that argument really suppose to fly in the practical sense? The 1st amendment doesn’t say either. Hell, the text out right forbids such a law, any law for that matter, yet they get away with it.

        The anti-terror crusade is mostly a public safety issue, look what they get away with there.

      2. For Christ’s sakes man, the TSA is feeling people up in the name of “public safety”.

    9. I used to smoke pot everyday. That makes me a repeat offender. When I engaged in further criminal activities far from harming the public I helped the guy who makes Reese’s Peanut Butter Cups put his kids through college.

  4. Smoking marijuana is destroying evidence. Therefore anytime an officer smells marijuana he can enter a house, even without a warrant. “They were destroying evidence, judge!”

  5. I never understood that one. Why should anybody have to contribute in any way to losing a lawsuit?

  6. Hmm. Ignoring the 4th amendment must be a theme among government d-bags these days. California is trying to pass a law for the RIAA that allows warrantless police searches of disc-replication businesses, as a way of cracking down on CD/DVD pirates.

  7. The Fifth Amendment says:

    “nor shall be compelled in any criminal case to be a witness against himself,”

    Is it that much of a stretch to say that this includes being required to keep and produce incriminating evidence against yourself?

    What’s the difference between being forced to give oral testimony against yourself, and being forced to turn over a diary that contains exactly the same thing?

    1. Because the oral testimony is compelled, while the writing in the diary was voluntary. Once the information moves from your brain into the visible world, you don’t have the right to withhold it anymore.

      The idea of that protection was to prevent the then-common practice of torturing suspects to make them confess.

    2. “”What’s the difference between being forced to give oral testimony against yourself, and being forced to turn over a diary that contains exactly the same thing?””

      A smartphone, the internet, and they way they are used are becoming a lot like a diary.

    3. I should add that if the police forced you to write testimony against yourself in a diary, that would be a violation of the 5th. It’s not a matter of the testimony being oral or written, it’s a matter of the communication of information being compelled.

      1. I suspect you’re right, Tulpa, as far as the legal reasoning goes.

        I just don’t see how being compelled to turn your diary over to the cops isn’t compelled communication on par with being compelled to talk to the cops.

  8. I guess I wouldn’t have that big of a problem if there were clear and definate proof of destruction of evidence, but what we’re really talking about is suspicion of destruction of evidence. I’d hate to have someone kick down my door just because I flush the toilet after I take a dump. Anyone involved in the drug trade constantly needs to be resupplied. Whatever might get destroyed will quickly be replaced.

  9. I did like the dissents by Ginsburg and Rucker in the two cases (both Democratic appointees btw). Powerful opinions in defense of government intrusion into the home.

    I wonder where Clarence “Most Libertarian Justice” Thomas was on this. I mean, Kyllo, Kyllo, Kyllo etc.

    1. in opposition to government intrustion into the home

    2. I wonder where Clarence “Most Libertarian Justice” Thomas was on this.

      Don’t ask me.

      1. I wonder where Clarence “Most Libertarian Justice” Thomas was on this.

        Don’t ask me.

        1. I wonder where Clarence “Most Libertarian Justice” Thomas was on this.

          Don’t ask me.

          1. I wonder where Clarence “Most Libertarian Justice” Thomas was on this.

            Don’t ask me.

            1. I wonder where Clarence “Most Libertarian Justice” Thomas was on this.

              Don’t ask me.

              1. I wonder where Clarence “Most Libertarian Justice” Thomas was on this.

                Don’t ask me.

    3. I wonder where Clarence “Most Libertarian Justice” Thomas was on this.

      Probably up Scalia’s new professional ass, where he usually resides.

      I don’t get the Thomas love either. I think any justice has an equal chance of erring on the side of liberty in any given case. Except Kagan, she seems a statist fuck of the nth degree.

      Besides, fourth amendment cases should be highest on the libertarian list to watch. If you cannot be safe from government intrusion on your person or in your home, then what good are any other freedoms?

  10. The fourth amendment doesn’t say that warrants are required for searches, only that *unreasonable* searches were forbidden. Now, in the vast majority of cases the reasonableness requirement and the requirement to get a warrant are pretty much equivalent.

    Note that we have an exception to the freedom of speech for child pornography, because if we allowed people to possess and distribute such material with no legal ramifications it would be very hard to track down who was producing it. So unless you want distribution of kiddie porn to be legal, you have to admit that the constitutional rights can be bent a minimal bit in the presence of a compelling state interest in enforcing the law.

    1. Yeah, I don’t have to admit that. I’ll go with “if it really is that important, get a constitutional amendment”. I know it is a little inconvenient to go and get an amendment for every little exception you want to the restrictions on government power, but that’s how the system is supposed to work. It says so right there in the constitution.

    2. 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.

      Then why have the bolded text? If you get rid of the bolded text the amendment is essentially meaningless, and could be discarded.(which happens to be the view of luminaries such as Rick Santorum, and Justice Scalia)

      Also, couldn’t “reasonable” be read as “cause a cop felt like it?”

  11. If someone is breaking down your door without first having knocked, shoot him in the face.

  12. Odd thought:

    How do the police establish that there is “evidence” (as opposed to just some non-evidentuary stuff) behind the door before deciding to break it down?

    I mean, in the case at point we seem to have

    (1) We set up a sting over there
    (2) The suspect came this way
    (3) We lost him

    but

    (4) we smelled something

    and

    (5) heard something

    OK. So that’s some kind of reason to believe that the suspect might have gone thataway. At least in a everyday sense.

    But in what way does it establish “evidence” in a legal sense?

    // Not a lawyer and probably babbling

    1. easy. If you didn’t open the door when police knocked, you have something to hide. Ergo, you are a criminal.

      Criminals will destroy evidence given an opportunity. Therefore, we have exigent circumstances! Works any time police knock on a door and it doesn’t get opened in a timely manner (timeliness to be determined by an officer as needed).

  13. Moats! Get your moats here!

    1. Do you have one with water, sharpened spikes and alligators?

      1. And the alligator anti-freeze kit? It gets cold in the winter ’round here.

  14. With Balko gone, who is handling the nutpunches?

    1. If it’s nutpunches you want, just go to Radley’s The Agitator site. Just make sure you have a titanium cup.

  15. This could all be solved if we just installed cameras in all sewer connections.

  16. Major league baseball has a history of more than 100 years, baseball park is one of the important promotional activities. .cheapest DC caps< /strong>Baseball park in Latin America, Europe, Australia, Japan, South Korea and Taiwan have held. This year the 2009 MLB officially started this activity in China,new york yankees hats < /strong>
    in five cities, five cities have four standing, two communities, a university and a square. May first in Shanghai in June began, in wuxi, July, August chengdu in guangzhou, September in Beijing.
    Philadelphia Phillies hats < /strong>

  17. Major league baseball has a history of more than 100 years, baseball park is one of the important promotional activities. .cheapest DC caps< /strong>Baseball park in Latin America, Europe, Australia, Japan, South Korea and Taiwan have held. This year the 2009 MLB officially started this activity in China,new york yankees hats < /strong>
    in five cities, five cities have four standing, two communities, a university and a square. May first in Shanghai in June began, in wuxi, July, August chengdu in guangzhou, September in Beijing.
    Philadelphia Phillies hats < /strong>

Please to post comments

Comments are closed.