"What Planet Is Alito Living On?"

National Review's Michael Walsh has some surprisingly harsh words in today's New York Post for Justice Samuel Alito's controversial ruling this week in Kentucky v. King, which held that the Fourth Amendment does not prevent the police from entering your home without a warrant if they suspect that evidence is being destroyed inside:

What planet is Alito living on? The whole point of the Bill of Rights is to restrict authority. The Founders, who suffered under the British system of "general warrants" and "writs of assistance" -- i.e., fishing expeditions -- wished to ensure that no American home could be searched without probable cause and a duly issued warrant specifying exactly what police are looking for….

All good citizens support the cops, who have a tough job to do. But our courts, in the name of law and order, are giving them far too much leeway -- and endangering our freedom.

Comments

[Bad Citizen]

All good citizens support the cops...

Maybe not so surprisingly harsh words.

[Sudden]

Proud to be a bad citizen

[Mongo]

Not 'Michael Jackson Bad' I hope.

[Juanita]

All good citizens support the cops, who have a tough job to do.

This is, uhg...a little much, oog...even for *pant pant*...me... *baaaaarf

[Aresen]

All good citizens support the cops...

Up to that point, he was doing fine.

[dunphy]

Orin Kerr has a great review of what this case REALLY means over at scotusblog.com

like Citizen's United, it is being spun by ideologues

[Hugh Akston]

The money shot from Kerr:

Instead the Court opts for the following rule: the police can rely on exigent circumstances as long as they did not "engag[e] or threaten[] to engage in conduct that violates the Fourth Amendment." Under this test, the police can go up to a house or apartment and knock and announce their presence, just as any private citizen can do. If a suspect inside reacts by starting to destroy evidence, and the police outside hear it, that sound of destroying evidence is not a police-created exigency. On the other hand, the police can't threaten to break in if the person won't open the door: Breaking in would be a Fourth Amendment violation, so they can't create exigent circumstances by threatening to break in. In the Court's view, that's the best test that balances the competing concerns.

Nowhere does he explain why destroying evidence of drug possession constitutes an emergency situation.

I guess we're just supposed to understand that the rights of individuals to be free from warrantless search and seizure must be balanced with the cops' arrest quotas and federal drug interdiction budgets.

But I'm probably just an ideologue.

[John Thacker]

Sadly, the incredible idiocy of drug possession laws was not actually at consideration in the ruling. Those laws were, perversely, treated the same as things that are malum in se.

[dunphy]

it should not be at consideration. it's not the job of the scotus. if you don't believe in seperation of powers, you recognize that. otherwise, it truly is judicial activism. judges ruling on what they think the law SHOULD be, not what it is

look at lily ledbetter. they weren't saying "we agree with the law". they were saying the law as written did not allow her recompense. it's CONGREsS' job to change the law

and congress did

given that congress (iow it's THEIR fault) makes possession of mj etc. illegal, then by definition... mj is EVIDENCE, and they have to rule on exigency with that understanding

amazes me that all sorts of people actually support judicial activism as long as it's for THEIR cause

note that juries, UNLIKE judges CAN rule on the idiocy of law.. see: jury nullification

[Doktor Kapitalism]

I can see you have capslock even if you don't have shift. Use caplocks to capitalize the first letter, then go back to lowercase. Same applies for cellphone.

[dunphy]

this is fascinating stuff. i learn a lot here!

[Luther Bliss]

Dear Doktor Kapitalism,

Both doctor and capitalism are properly spelled with c's not k's. OK?

[dunphy]

there is no right to be free from warrantless search and seizure. i suggest you read the 4th amendment again

there is a right to be free from unreasonable search and seizure. the 4th does not say a warrant is required for either. read it... again

[Jim]

What, in your estimation, constitutes unreasonable? Without a clearly delineated process like obtaining a warrant, isn't asking the gov't to decide what is unreasonable asking the fox to guard the henhouse?

[dunphy]

that is, like it or not, the decision of... wait for it... the courts.

my constitution (WA state) sets a HIGHER burden on the state than the feds do.

my constitution establishes a right to privacy. under an independent reading then, state LEO's are MUCH more restricted in both search and seizure than federal agents ( the latter are not bound by the state constitution if thye charge federally)

but imagine the contrary : no searches or seizures without a warrant

that would mean if an officer witnesses a bank robbery, he could not arrest the perpetrator (w/o a warrant). that's a seizure.

he also couldn't shoot him. that's ALSO a seizure.

[John]

NO but the common law does. And as Walsh points out above, the 4th Amendment was passed partially in response to general writs. You have always needed a warrent to search a house minus exigent circumstances with used to mean life and limb. Now it means "destroy evidence". Well there is and was always the possibility evidence will be destroyed during the delay. And further, just what does "destroying evidence" sound like exactly? Flushing a toilet? Turning on a facet? There is no way for the police to tell with any degree of certainty that what they hear is actually destruction of evidence and not innocent activity.

The reality is that with this decision cops can now search anytime they please under the pretext of "destroying evidence". Virtually sound coming from a house can be spun by a well prepared cop to establish exigent circumstances.

These are the practical effects of this ruling that Alito and Scalia and the rest of the court, sans Ginsburg, don't or won't understand because they are elists morons who have never actually practiced law or experienced the law outside of the conlaw priesthood. They just destroyed the warrent requirement for our homes. Thanks Alito, you ignorant slut.

[wylie]

There is no way for the police to tell with any degree of certainty that what they hear is actually destruction of evidence and not innocent activity.

Dogs have superior hearing, right? Yeah, you know where I'm going with this, and it ain't good...

[John]

Always with the dogs man. Always with the dogs. 🙂

[wylie]

They're an essential component to Unleashing The Dogs Of War.

[R C Dean]

There is no way for the police to tell with any degree of certainty that what they hear is actually destruction of evidence and not innocent activity.

So, tie goes to the cops, and not to civil liberties?

[Pro Libertate]

Dude, civil liberties isn't even allowed in the dugout.

[dunphy]

sure there is. among other things, if the cops hear "john, go flush the drugs" that gives you a pretty high certainty that ... wait for it... drugs are about to be destroyed

and yes, criminals will say stuff like that.

and in fact, there have been exigent warrantless entries based on such statements being overheard

[dunphy]

meth-heads are actually notorious for this. it's pretty funny. well represented in the movie "spun" with a spracked out brittany murphy

i know dope cops who will knock loudly on a door and yell "we're coming in !" at known dope houses once in a while because the sprackers will run around feverishly disposing of their drugs.

or (and yes, this happened) dump a whole bunch out the rear window. ounces of meth... into the wind

[Russ 2000]

meth-heads are actually notorious for this. it's pretty funny.

So what? There should be no such thing as illegal meth or illegal dope in the first place.

[Apogee]

among other things, if the cops hear "john, go flush the drugs" that gives you a pretty high certainty that ... wait for it... drugs are about to be destroyed

You must not read much Balko. I'm not ready to trust my civil liberties to what Officers say they heard, or to what they suspect.

I'm sure there's a lot of drug cash floating around Tennessee - in fact, it's probably any cash anywhere that's 'suspected' of being drug cash. Of course it's able to be seized and applied to police budgets - after all, someone suspects something.

I'm sure profit and power would never corrupt a group of people who are increasingly completely unaccountable.

The worse this gets, the less many Americans side with the Police.

[Amakudari]

They heard rustling.

Clearly any noise at all -- or perhaps silence, if they think someone's hiding and consuming evidence -- now constitutes an exigent circumstance.

[PapayaSF]

The reality is that with this decision cops can now search anytime they please under the pretext of "destroying evidence".

Really? Does anything prevent the states (or even Congress) from writing laws that limit the police in this way?

[dunphy]

the common law does not

what the common law establishes is that searches (*or seizures) w/o a warrant are PRESUMPTIVELY unreasonable. it is up to the courts to establish when that burden is overcome

for example, many states allow all misdemeanors to be arrested if they occur in an officer's presence and some to be arrested on probable cause.

[TrickyVic]

"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."

By a strict reading, they didn't say when or what type of searches a warrant was needed. So by a strict reading of the constution, they never need a warrant for any seach since non is specified.

So what would an "unreasonble" search be?

[TrickyVic]

Pardon me while I search for a few missing letters. 😉

[Pro Libertate]

A search without a warrant, usually.

[Pro Libertate]

Just a reminder, the requirement to get a warrant was an intentional check on executive authority. At every level of government. Without the warrant requirement, there is no check.

No opinion about this case in particular, as I haven't read it, but handing over too much discretion along with removing any checks on the power, is a bad idea.

[TrickyVic]

I'm sure there is zero case law to support that which Dunphy could read. 😉

[Pro Libertate]

With all of these exceptions and justifications, it's easy to lose sight of why we built in these protections in the first place. Warrants and other checks on executive power were intentionally placed with the full knowledge that they would make law enforcement harder. Because protecting all of us from government overreach was considered more important than making the collection of evidence easy.

For the same reason, we make it quite difficult to convict people of crimes.

[TrickyVic]

My interpetation is that the 4th does not mention that it applies to searches because it applies to all searches. They didn't need to specify. For the reason you mention.

[dunphy]

they mention searches and seizures. if it applied to all seizures then cops wouldn't even be able to detain an axe murderer in the process of murdering somebody, because that would be a seizure w/o a warrant

any interpretation that thus leads to such absurd results is automatically wrong

this is a common method in legal analysis btw

[Apogee]

cops wouldn't even be able to detain an axe murderer in the process of murdering somebody,

Yes they would, because murdering someone with an axe is unambiguously a violation of the victims right to live, requires immediate action, and, most tellingly, involves an actual victim.

None of those apply to the drug/prison/LEO/Court System Industrial Complex involving the possession of a substance that another citizen willingly purchases.

Your inability to parse these two decidedly different scenarios is exactly why these restrictions exist.

[dunphy]

and both our reasonable doubt standard and our restrictions on state power are very good things

i'm GLAD i live in a state that restricts police/LEO's MORE than the federal constitution chose to.

it's about rule of law.

it would be great if mj etc. were legal

but again, that's up to the legislators. blame them.

[Scruffy Nerd Herder]

If its up to the legislators, why did it take a constitutional amendment to outlaw alcohol?

[Chris Mallory]

The people who enforce the law are equally to blame. "Just doing my job" is never an excuse for doing evil.

[Apogee]

I think the term is "Just following orders"

[Invisible Finger]

it would be great if mj etc. were legal

but again, that's up to the legislators. blame them.

AH! The Eichmann defense, the last word of a scoundrel.

A cop can smell mj and it's his choice whether or not he goes after the guy or not.

[dunphy]

that is... wait for it... up to the courts. which is one of the duties of the courts

[Doktor Kapitalism]

"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."

That's pretty clear, is it not?

[dunphy]

yes, and you will find NO legal scholar i am aware of (or no person w/ common sense... not necessarily the same thing) who will parse that as ALL searches and seizures require a warrant

ALL arrests are seizures. if ALL arrests required a warrant, no officer could arrest somebody even if they were raping a 5 yr old right in front of them

nor could ANY form of force be used, w/o a warrant, since using force (almost always) is a seizure.

get it?

[Apogee]

no officer could arrest somebody even if they were raping a 5 yr old right in front of them

You're really having a hard time with this, aren't you?

The term "right in front of them" is decidedly different than "In their own house and not involving any victim"

Oh yes, there are victims of drug abuse.

You incarcerate them, as well.

[Al Wayswright]

Removing the interrupting phrases, in essence this is the 4th amendment:

The right of the people to be secure in their persons, houses, papers, and effects shall not be violated.

No Warrants shall issue, but upon probable cause particularly describing the place to be searched, and the persons or things to be seized.

In short, it's unreasonable for police to come to anyone's door say, before 9 A.M. and after say 5 P.M.

It's unreasonable ever to believe that the police merely coming to someone's door, the person on the other side of the door must to let in police under obligation.

It's only reasonable for police to search by eyesight and at distance a person in public. Only what police can see by the plain eye that is exterior to the body of a person can get deemed reasonable.

The only other reasonable kind of search is one that demands a search warrant for an exact item fully described, the exact spaces within a house to be searched and the exact persons whom shall submit to a pat down.

If cops can come to one's house at all hours of the day and night, without invitation or warrant and barge in under any pretense, how can anyone be secure in their persons, houses, papers?

Reasonable means "having sound judgment, sane, rational."

For police to have reasonable cause to burst into a house means they have thought through long and hard that only that person on the other side could possibly be the sought for criminal who has in her or his possession in an exact place the exact piece of evidence needed to substantiate the reasoning under which police suspected her or him as the criminal in the first place.

Thus, if police are going to be reasonable, they ought to get a search warrant first, unless they, themselves, are eyewitnesses to ongoing crimes, like stumbling upon a bank robbery or a shootout.

[Bill]

That's usable in court, right?

I swear I heard them destroying evidence of something .....

[zoltan]

Where are the words "exigent circumstances" in the Constitution?

[dunphy]

they aren't. that's been established by judicial review.

the constitution DOES NOT SAY when arrests or SEARCHES ARE reasonable. the courts have established a body of case law.

for example, arrests require probable cause

seizure requires reasonable suspicion and/or a couple of other exceptions - like community caretaking (i used this once to make forced entry to a residence to get medical care for a kid who had .40 BAC and was passed out etc.

[Apogee]

the courts have established a body of case law.

You and Tony should get together - he also believes in the superiority of case law over the written Constitution.

That's really convenient - for the gubmint.

[oncogenesis]

What is the sound of evidence being destroyed?

[Jim]

If evidence is destroyed in the forest and no one hears it, does it make a sound?

[wylie]

Fucking hippies.

[Santa Commerce Clause]

If inactivity is regluable, silence is testimony.

[Santa Commerce Clause]

regulable, even

[Jim]

Good tie-in, I didn't even think about that.

[wylie]

All good citizens support the cops...

comments

Hey, I support the ones who get railroaded when they blow a whistle on their department. Takes surprisingly little time to provide that support, but hey.

[Rich]

All good citizens support the cops, who have a tough job to do.

FTFY

[joshua corning]

I am more pissed at Thomas then Alito.

Alito is expected to be a scum bag when it comes police powers...

[dunphy]

excellent analysis of this case...

http://www.scotusblog.com/2011.....rulemaking

[T]

Bullshit. It completely skips over the central issue. Any noise from the interior can and will be interpreted by the cops as "destroying evidence". Even with no exigency or other valid reason to enter the home the mere suspicion that someone inside is destroying evidence is enough justification to piss on the 4th amendment?

I'm sorry, when did making your job easier mean the 4th amendment became a nullity?

[dunphy]

except that's not the "central issue". it's false speculation on your part. in 20 yrs of police work, I can count the # of times we broke in for EXIGENCY in a drug (or any type of case).

your prediction doesn't match reality.

the 4th amendment did not become a nullity. this case IS consistent with the 4th

setting aside the fact that there shouldn't BE a war on drugs in the first place.

fwiw, i had to get a warrant to enter a house the other day when i was refused entry. we did so. we arrested the felony assault suspect... and the homeowner who refused entry and claimed he wasn't there

we got a WARRANT

because there was no EXIGENCY

[Auric Demonocles]

So we should rely on your professionalism?

[TrickyVic]

""we got a WARRANT""

Why? As a technicality? You've already claim the 4th would require you to get one.

[TrickyVic]

You've already claim the 4th would NOT require you to get one.

Fixed.

[dunphy]

no, i didn't. that's a logic fail

i claimed (as any legal scholar knows) the 4th does not require a warrant for ALL searches and seizures. an arrest is a SEIZURE. if it required a warrant for all arrests, a guy could commit bank robbery in front of me and i couldn't arrest him

get it?

what I said is that it does not require a warrant for ALL seizures and ALL searches.

thus, a body of case law and legal precedent rules.

and of course since i am lucky enough to live in a state with a greater restriction on state power, cops in my state are more likely to need a warrant to arrest/search than under the federal standard.

for example, in my state, we cannot search trash on the corner (outside the curtilage) w/o a warrant. under the federal standard (and in most states) a cop can

since the 4th amendment only says searches and seizures must be REASONABLE a body of case law establishes the boundaries, Terry v. Ohio being one famous example

so, in brief, your claim was wrong

[dunphy]

the body of case law DOES require us to get a arrest warrant/search warrant to enter a private residence when we have a party inside whom we have probable cause committed a violent felony

however, if the felony was on-going and there was danger to others, it would not

etc.

see: case law.

the 4th does not say all searches or seizures require a warrant.

again, read it

[pmains]

Fine. Let's stipulate for the sake of civility that you, personally would not abuse such power.

That said, aren't we talking about people using their imaginations to fill in the blanks of what they think might be happening on the other side of the door? Do we real want to use the imagination test as the basis for an unwarranted search?

[dunphy]

this is the typical argument in the reason blog. police power is always viewed with the "what if they lie/abuse it" standard?

by the same logic, citizens should not be allowed to report crimes. after all, some could lie ... thus abusing this power.

therefore, they should not be able to report assaults, robberies, etc. because then some of them could abuse it.

what is important is that cops who abuse this stuff get punished, and the same goes for citizens, such as crystal mangum..

[Scruffy Nerd Herder]

Forgive my disbelief that state officials who abuse their powers get punished, when the Supreme Court has relieved prosecutors of liability for misconduct.

[Jim]

Your analogy fails, because citizens do not have the force of law to compel others, and LEOs do. Therefore there is a much greater burden on LEOs than there is on citizens.

Also, I have seen no evidence (both from media and my own personal experiences) that suggests that most LEOs who lie / abuse their position ever pay any real price for it.

[Butts Wagner]

citizens do not have the force of law to compel others, and LEOs do

it must be repeated.

[Apogee]

what is important is that cops who abuse this stuff get punished,

HAAHAHAHAHAHAHAHAHA!

[Cyto]

I think the more salient quote was from Alito leading in to the quote from the summary:

"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 . . . search that may ensue."

He's arguing from the ivory tower. "Just trust in us legal types and everything will be fine." He's saying they would have been fine to silently not answer the door (so there's no 'destruction of evidence' sounds) or answer the door and refuse to answer any questions... but attempting to destroy evidence allows for unwarranted searches. That's just mindbogglingly stupid.

Under this regime any sound at all, or even no sound, can be used as evidence that you are destroying evidence rather than answering the door. So he's made a legal framework where failure to answer the door within a requisite time period (to be determined by the police at the scene) is prima facia evidence of destruction of evidence and therefore exigent circumstances for a warrant-less search exist.

Of course, answer the door and then "plain sight" comes into play. And we all know that "plain sight" can mean "anything that I find can always end up on the coffee table after the fact". And depending on your state of residence, they can enter without permission and you are powerless to stop them - so good luck with that "it wasn't in plain sight, they moved it" defense.

[dunphy]

except that's not what happens IN THE REAL WORLD

as i can attest to personally, and you could if you review cases.

[oncogenesis]

Shorter cop: Just trust us.

[Jim]

Seriously Dunphy; just because you and the people you know are honest, we're supposed to take it that all cops will always defer to warrants instead of inventing circumstances and "hearing" evidence being destroyed? No offense, but I'd rather not trust to that.

[Coeus]

You'd be braindead if you did.

[dunphy]

then citizens shouldn't have the authority to report crimes. SOME could invent crimes and get people arrested who were entirely innocent

thus, no citizens should have the power to report crimes

same exact logic

the correct remedy is to punish those who abuse the system, whether cop or fake crime reporting citizen e.g. crystal mangum

[Coeus]

then citizens shouldn't have the authority to report crimes. SOME could invent crimes and get people arrested who were entirely innocent

The difference is when a cop lies, he is believed by default. And then evidence which would not be admissible is now going to be used to send that person to prison. When a citizen lies, the same is not true.

[dunphy]

i never claimed that. some cops will abuse this just like some citizens will abuse their ability to report crimes.

citizens who make false reports of crimes get people arrested ... or worse.

the remedy is not - NO CITIZENS are allowed to report crimes

you investigate with vigor and you punish the liars (like crystal mangum)

same thing with cops

i have been 100% consistent on this. cops who commit perjury should be punished

[Jim]

And yet, since you're so into the "REAL WORLD", then lets face facts: cops who commit perjury, or who abuse their positions, most often are NOT punished. That's the "real world". So what now?

[mad libertarian guy]

Because no cop would beat the shit out of an elderly man who called the police to report a crime.

[Ballchinian]

Your assurances are worthless.

[dunphy]

they are backed with actual experience (both in case law and amongst my own cases)... iow, they are based on reality, not hysterical false speculation

[Coeus]

If a power can be abused by police it will be. Case in point, the recent Indiana Supreme court decision. An Indiana sheriff has already gone on record as to how he intends to do so:

http://www.mikechurch.com/Toda.....-will.html

[tarran]

yeah, that's why the word "testilying" is only the product of libertarian's fevered minds.

Oh wait:

Testilying may have taken off after a 1961 Supreme Court decision boosted the exclusionary rule by requiring state courts to exclude -- or throw out -- some evidence seized in illegal searches, such as when police frisk people without probable cause or search a residence without a warrant.

Immediately after the decision, Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. -- most cases are prosecuted in state court -- didn't change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. "Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs," says John Kleinig, a professor at John Jay College of Criminal Justice.

dunphy, you make a large number of assertion on every thread about police power (until someone mentions LEAP - then you disappear faster than Count Dracula when he sees that Yasmine Bleeth's bed was liberally detailed with cloves of garlic).

Given the fact you guys lie so frequently, I honestly don't believe you any more than I believe Geroge Bush or Obama.

Do yourself a favor and give up your immoral and dishonorable trade. Not only will you gain a measure of self respect, but the world will be a better place once you start earning an honest living.

[joshua corning]

All good citizens support the cops

Why is it this part that is pissing people off?

It is not the Cops that are the problem. Courts, the war on drugs, our statist government and squishy politicians are the problem.

[Hugh Akston]

Cops don't make laws, but they choose to enforce them.

[Cop]

"Do you know why I pulled you over?"

[wylie]

"Oooooooo, I love 20 Questions!"

[My Favorite Response]

Because you didn't do well in high school?

[FlyoverCountry]

+10 (and a taser to the neck..)

[kiddclass]

That answer sounds funny, but it's really sad - because in most cases the cop can just smile and tell you how much he's making in salary+overtime+bennies and how early he's going to retire.

Then you'll feel stupid for bothering with that PHD that's getting you 75k/year.

[dunphy]

true dat. i make 6 figures and get great bennies.

granted, i went to grad school, but i only know one cop with a PhD

[dunphy]

that's incorrect meow...

[Pro Libertate]

A major part of constitutional law is not letting government agents have too much discretion. Give them that, and there isn't much point in talking about limited government.

[Hugh Akston]

The problem isn't letting government agents use discretion. I've gotten out of some potentially monstrous fines because a cop declined to ticket me for driving an unregistered vehicle. The problem is what kind of discretion the law gives them.

Most people violate the letter of the law in the course of their day. Cops could probably find an illegal substance or situation in just about any car or home in the country. There needs to be a serious reckoning about the number and scope of laws governing personal behavior, so cops can focus on actually protecting and serving people instead of acting as racial gatekeepers and municipal revenue collectors.

[TrickyVic]

""The problem isn't letting government agents use discretion.""

In your example no. But giving agents the discretion to enter you home was one of the reasons we fought the American Revolution.

[dunphy]

except agents don't have "discretion" to enter your home. there are very tight rules about when they may do so... w/o a warrant

[Apogee]

there are very tight rules about when they may do so... w/o a warrant

An opinion does not constitute a 'tight' rule.

[joshua corning]

The problem is what kind of discretion the law gives them.

Then why the fuck did you argue with me above!??!

[dunphy]

which is entirely up to legislatures. they could legalize drugs TOMORROW

and juries are always free to nullify prosecutions based on bad laws

[Coeus]

and juries are always free to nullify prosecutions based on bad laws

Yep. Maybe someone should remind the cops who keep arresting the people that inform jurrors about that right.

[joshua corning]

Cops don't make laws, but they choose to enforce them.

Even in libertopia a good cop would be defined as one that does not choose to enforce the law, but one that is compelled by duty and contract of their employment to enforce them.

A cop that chooses to enforce some laws some of the time and not enforce some laws some of the time is by definition a bad cop.

The "choice" part of the enforcement action is what makes a bad cop a bad cop.

[Invisible Finger]

Even in libertopia a good cop would be defined as one that does not choose to enforce the law, but one that is compelled by duty and contract of their employment to enforce them.

Then Eichmann was the most honorable man who ever put on a government uniform.

[John Thacker]

Dunphy is correct in this situation that Damon is exaggerating the decision. It did not hold "that the Fourth Amendment does not prevent the police from entering your home without a warrant if they suspect that evidence is being destroyed inside."

What it held-- though unlike dunphy I still disagree with this-- is that when the courts consider exigent circumstances, while they must throw out police-induced exigent circumstances that are the result of illegal police activity (such as violations of the Fourth Amendment), they must not throw out police-induced exigent circumstances that are the result of legal, Fourth Amendment compliant police activity.

It was remanded for the Kentucky Supreme Court to reach a decision on the Fourth Amendment grounds again, but with a different weighting as to the exigent circumstances. The SCOTUS reached no conclusion as to whether the invasion violated the Fourth Amendment, just that the precise test used by the KY Supreme Court was wrong.

However, that said, I still think I disagree with the decision.

[T]

they must not throw out police-induced exigent circumstances that are the result of legal, Fourth Amendment compliant police activity.

So, the cops can create a reason to enter your house without a warrant as long as their created reason is on the approved list? That makes it so much better.

[Hugh Akston]

SCOTUS prefers to think of it as professional courtesy.

[wylie]

*Courteous Professionalism.

[mad libertarian guy]

How long until we start to see "we thought we heard evidence being destroyed" as a reason on unwarranted searches?

The rise will be sudden and drastic.

[Cyto]

Right. So let me spin a yarn for you.

Under the "registered sex offender law" the Authoritus County Sheriff's office is going door-to-door to notify residents of the identity of the sex offenders living in the area. During this official, legal police activity LaKishia Lopez doesn't answer the deputy's knocks at the front door.

He can see that she's home because the TV is on - therefore she must be destroying evidence. He kicks the door in and conducts a sweep of the premises, finding $65 worth of crack cocaine in her nightstand. Per Alito's ruling, this is a good search. Never mind that LaKishia was in the bath at the time the officer kicked the door in...

[pmains]

She has a TV in the bathroom?

[Cyto]

Or in the bedroom. It's her house, she can put it where she damn well pleases. If she likes to listen to Oprah while rubbing one out in the tub, that's her affair, and no rightful interest of the state.

[wylie]

*insert screencap from The Royal Tennebaums.*

[jacob]

+1 for reference to awesome movie

[Zeb]

No, I don't think that would be a good search according to this ruling. I think that this is being exaggerated (though I still don't like the decision). In the case in question, the police were pursuing a suspect, so they had some reason to think that a crime was going on in one of the nearby apartments. In your hypothetical about the sex offender notifications, there is no reason for the cop to believe that any crime is happening and thus no reason for him to believe that there is any evidence to destroy. I think that the fact that the police were investigating a specific crime is key here.

I'm not wild about the ruling, but I think that people are making too much of it. The bigger problem is that destroying drug evidence can be considered exigent circumstances (and of course that drugs are illegal at all).

[dunphy]

destroying ANY evidence is an exigent circumstance, it just so happened this came up in a drug case.

again, the remedy - legalize drugs

and jury nullification

both of which are not in the hands of police

[Coeus]

again, the remedy - legalize drugs

and jury nullification

both of which are not in the hands of police

Except the police unions keep spending insane amounts of money to further the war on drugs. And cops keep arresting those who try to inform jurrors about nullification.

[mad libertarian guy]

both of which are not in the hands of police

Because the police have shown great restraint with what is in the hands of the police.

[Al Wayswright]

dunphy says:

destroying ANY evidence is an exigent circumstance

Except cops are incapable of determining what constitutes evidence until after the fact, unless standing as eyewitness to action ongoing in front of their naked eye and external to the body of another.

It is unknowable if someone has flushed evidence for no one knows if what is flushed is going to get weighed as evidence by the process of a court.

Only in legal prosecution does material collected gain the status of evidence.

On this basis of legal fact, Alito's ruling falls on its face.

When police collect bullet casings or drugs or anything else at what police deem is a crime scene, police might believe such material to stand as evidence.

However, not until a story gets told in court and those collected materials get presented to the court, does any of that material ascending to the standing of evidence.

[Al Wayswright]

In short, potential evidence is not evidence regardless of how hard someone wants to usher into the realm of truth such falsehood.

Even kicking in the door of a house because coppers believe a potential felon awaits on the other side is wrong, however allowed by disingenuous case law.

For such case law permissibility has eroded the exact reason for having such a stringent supreme rule as the 4th Amendment.

In true Orwellian fashion, through time, the many have accepted one case law ruling built upon another, all of which have led down a slippery slope of neutering the purpose and force of a Constitution and especially the Bill of Rights.

[Apogee]

through time, the many have accepted one case law ruling built upon another, all of which have led down a slippery slope of neutering the purpose and force of a Constitution and especially the Bill of Rights.

Which is why you don't prioritize case law over Constitutional protections.

[dunphy]

to be more precise, the police cannot create the exigency.

iow, if the cops say "police, we are going to break down the door if you don't answer it in 10 seconds" that would CREATE the exigency, and since the claim would be a 4th amendment violation if they did it, the exigency won't justify the search

the case didn't address a command such as "police, open the door" but as Orin points out it may be that this is also creating an exigency.

what they can do is say "police!" "John, we know you're in there" stuff like that

[P Brooks]

"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 . . . search that may ensue."

What in the fuck is that even supposed to mean?

[Rich]

I believe Alito meant to write:

Justices who choose to trample on their constitutional rights have only themselves to blame for the warrantless . . . search that may ensue.

[P Brooks]

they must throw out police-induced exigent circumstances that are the result of illegal police activity (such as violations of the Fourth Amendment), they must not throw out police-induced exigent circumstances that are the result of legal, Fourth Amendment compliant police activity.

And where do they come down on "exigent circumstances" fabricated after the fact? As long as the courts defer to completely made-up stories by the police, we have no Fourth Amendment rights.

[Cyto]

Yeah, that "after the fact" situation already existed - but they had to have some fleeing felon or domestic violence to hang their hat on. Now they can just say "I thought they were trying to destroy evidence" and 'Ta-DA!' magic exigencies are created.

Now, stop resisting!

[dunphy]

actually, in my experience - domestic violence is the VAST majority of exigency (warrantless) entries into a home.

i've never made an entry based on somebody destroying drug evidence.

i've made scores of warrantless entries based on exigencies in DV or other type cases.

we've had two local cases where cops DIDN'T make entry in such circs and in those cases, there was a homicide after they left

oops

[Apogee]

we've had two local cases where cops DIDN'T make entry in such circs and in those cases, there was a homicide after they left

oops

In a similar situation, there wasn't a complete ban on gun ownership in America, and subsequently some people shot other people to death.

Oops.

If we really want to stop domestic violence, we should ban marriage, not enable the government to enter houses at will.

Some people are going to do dangerous and stupid things.

That's the price of freedom.

[P Brooks]

the police can go up to a house or apartment and knock and announce their presence, just as any private citizen can do.

Okay; and if I come to the door, and yell Fuck off! as I would with any random private citizen, like a Seventh Day Adventist, a Girl Scout hawking cookies, or a political activist, will the pigs depart, or will they take this as "suspicious activity" which justifies kicking down the door?

[Max's Mom]

Now, Honey, this is an example of what is known as a "rhetorical" question.

[John]

The cop will kick down your door and search your house, sans warrent. And when he testifies he will say he smelled pot and heard you destroying evidence after he anounced himself. And there will not be a damned thing you can do about it.

[West Texas]

This. Cops are the only witnesses that matter.

[wylie]

and yell Fuck off! as I would with any random private citizen...

More CoolStoryBro time.

I was washing dishes one day, and someone knocked on the door. I wasn't expecting anyone, and my hands were all soaped up, so I figure UPS/FedEx can drop the package or whatever and leave.

More knocking. And again.

*grabs towel and heads for the door angry*

"Hi, we'd like to talk to you about God."

"FUCK OFF, didn't me not-answering the door the 1st and 2nd knocks tell you anything? 3 times, and here we are, with me yelling at you two morons." *slam*

Fucking Yahwe's Observers.

[wylie]

(a smart wylie would've invited them in and tricked them into helping with the dishes.)

[Coeus]

I converted a campus crusader (baptist jehovah's witnesses, basically) to deism once by inviting them in, giving them a sermon, and then handing out literature I had printed out for just such an occasion. I only got the one, though, and her partner was pissed.

[dunphy]

not at all. sometimes, people DO do this. and they have every right to.

and this ruling doesn't change that.

[dunphy]

no. and in fact, it's not uncommon

although the vast majority of responses are either - they come to the door

or

they get REALLLLLLLY quiet

[John]

And forgive me if I am a little skeptical of the whole "it doesn't mean the worst it only means X" explination of this decision. I have been hearing that my entire life. And if you read a history of 4th Amendment Jurisprudence over the last 40 years, you will see it always equals the worst. Read about your privacy in cars sometime. What started out as a "if the officer arrests you he can look around the car to make sure there is a weapon" over the course of a few years became "if the officer arrests you he can search the whole interior of the car". This shit never ends. The caases never go the other way. Every year the 4th Amendment gets smaller and smaller. And rat bastards like Scalia who have never practiced criminal law and are in love with their own mental masterbation come up with new ways to destroy it further.

[wylie]

SLIPPERY SLOPES ARE A MYTH, CITIZEN.

[htjyang]

Funny that you mentioned search of cars while ignoring the recent Arizona v. Gant which was foreshadowed by Scalia's concurrence in US v. Thornton.

When it comes to the 4th Amendment in general, you also ignore Kyllo v. US.

[P Brooks]

So what would an "unreasonble" search be?

"That guy strikes me as 'shifty'. Look, he just walked past the window; I bet he's on his way to destroy some evidence. Let's roll, boys."

Oh, wait- that's not unreasonable, according to SCOTUS.

[dunphy]

yes it is. but i'll give you a C for nice baseless hyperbole

[P Brooks]

Warrants and other checks on executive power were intentionally placed with the full knowledge that they would make law enforcement harder.

That crazy talk.

IF YOU'RE NOT DOING ANYTHING WRONG, YOU HAVE NOTHING TO WORRY ABOUT!

[EscapedWestOfTheBigMuddy]

National Review's Michael Walsh

apparently wasn't paying attention during Strip Search Sammy's confirmation fight.

[pmains]

Please tell me that Alito didn't strip.

[htjyang]

Interestingly enough, virtually everyone ignores one important fact of the case: The police were right about the marijuana, even though they didn't get their guy on the first try.

I'm not suggesting that the police are infallible. But even assuming that we have the 4th Amendment of libertarian dreams, does anyone really think that no warrant will be issued by mistake?

So arguments about how the police are fallible is not the main issue and is irrelevant to this case. The legislature's power with regard to regulating drugs is supported by history. The en banc DC Circuit Court in the Abigail Alliance noted drug regulations going back to 1736.

Arguments against the drug war are properly addressed to the legislature. Not only is it irrelevant to this case, I'm not convinced that the courts have any authority in overruling the legislature on this question. This is a political question and should be reserved for the political branches.

[EscapedWestOfTheBigMuddy]

That's not an interesting fact about the case.

Because the result of the ruling is roughly "if you make noise after the cops knock they can bash in your door".

People keep claiming it doesn't mean that, but they are wrong, because what ever interpretation is put on it today will be stretched a little next moth and a little more come fall and so on without end.

And that fails to prevent "unreasonable" searches and seizures which means that it is incompatible with the constitution.

So, push off.

[dunphy]

except that's not true.

merely "making noise" will not justify it.

but again, nice baseless hyperbole

[Jim]

Except it could be true. Any cop could lie about what he heard. And before you break out the bullshit "well citizens can also lie" argument, see my response above. Citizens cannot bind others by law; LEOs can. Therefore the burden must be commensurately greater upon LEOs than upon the citizenry at large.

[Apogee]

merely "making noise" will not justify it.

You're ignoring the point of making LE's obtain a warrant for specific searches. The 'rules' for what constitutes 'destruction of evidence' are so vague that pretense can be tailored to fit what is later uncovered.

IOW, a fishing expedition.

Sorry, but if the officers think they smell pot, they should go get a warrant and then search the premises.

[Doktor Kapitalism]

Well, in libertopia smoking marijuana wouldn't be a crime. A lot of these cases would be nonexistent if there were fewer laws to break.

[dunphy]

bingo!

legislators could do it

and juries can nullify

REM-E-DIES

[P Brooks]

I just read this and now I'm even more pissed off.

The Supreme Court of Kentucky, hardly the most radical of courts in hardly the blue-est of states, applied its understanding of the Fourth Amendment and said no. If instead of pounding on the door, the state court noted, the police had quietly gone to a magistrate and obtained a search warrant, the people in the apartment would have had no reason to start scurrying around destroying their valuable contraband. Because the police themselves had prompted that response, foreseeably creating the "exigent circumstance," the court concluded that the state should not be allowed to reap the benefit.

The United States Supreme Court reversed.

The whole thing is worth reading; in fact, it's sufficiently well-written that pulling a single paragraph is hard to do.

[Paul]

Thanks for the link. Good read.

[P Brooks]

The police were right about the marijuana

Ends, means, eggs, omelettes...

Fuck you.

[Paul]

Something something didn't have crack and meth houses when the constitution was something something.

[dunphy]

the vast majority of warrantless entries are DV cases.

take a ride-a-long or two and that will be confirmed personally

[Coeus]

the vast majority of warrantless entries are DV cases.

For now, since that's a way around a warrant. Now there's another. You just have to give them time to realize it and memorize the proper phrases to justify it. Over on police one, they're already discussing exactally what one would have to say to use this new loophole.

[cynical]

Destruction of evidence merely makes a prosecutor's job harder. If that's enough of an "emergency" to put a hole in the fourth amendment, then the entire thing needs to go, because all due process protections make prosecution more difficult.

[P Brooks]

we've had two local cases where cops DIDN'T make entry in such circs and in those cases, there was a homicide after they left

This plainly means locks should be outlawed, and police should have unfettered access to any residence, at any time.

[P Brooks]

i'll give you a C for nice baseless hyperbole

Nice, coming from the guy who relies on the Well, I've never seen that, so it does not exist line of argument.

[Contrarian P]

Dunphy, I'm sure you have great faith in the police, but most of the rest of us, while we respect the fact that your job is more dangerous than many out there (though not nearly as dangerous as it's made out to be), view you and your fellows as somewhat dangerous, kind of like a wild animal that seems to be friendly.

Several years ago, I was on my way back to my house from the gym. I did not realize this, but my headlight had gone out. I was pulled over along with about forty other motorists along the side of a major road. The officer told me to give him my license and registration without even bothering to tell me why I had been stopped. The practical upshot of all this was that I eventually demanded to see the headlight, was told I could not exit my car, demanded to know exactly under what authority he was imprisoning me in my vehicle, and was told it was too dangerous for me to get out of the car (for my own protection). When I argued this, he ordered me to get out of the car (which was now apparently perfectly safe) and proceeded to handcuff me and put me in his vehicle.

I looked up to see the other officers searching my car. I demanded to know what right they had to do this and the reply was "they must have seen something in the car". I had just had the vehicle detailed that day and there was literally nothing visible in it. In that state at the time, permission was required from me to search my car if stopped, unless contraband was clearly visible. When they had finished taking everything out of the glove compartment and console and throwing it in the floor, the officer stated that he had thought it over and was graciously not charging me with any other crimes other than the headlight being out. When I asked one of the other officers why so many patrol cars were pulling people over on that stretch of road, I was told that there was a rap concert that night and "you know what kind of people are at those concerts".

Yes, I understand that this is probably an isolated incident. I also understand that when I complained to the police department I was told that they had investigated and that the officers had in fact not searched my car and I had attempted to hit the officer with my car door. So excuse me if I call bullshit on your assertion that police power is not abused and even bigger bullshit on your claim that police who do abuse their power get punished.

[Apogee]

The Police are losing the law abiding citizens.

[tarran]

Do we have anything other than Dunphy's word that he and his buddies are stand-up guys?

When some Sammy "the Bull" says "I killed no one whi didn't have it coming," do you actually believe him?

Personally, I would take the word of people who participate in extortion rings with a grain of salt; when they act friendly and tell us they're on our side, it's probably a con or a trick.

[BigT]

Why not REQUIRE the cops to video their actions. We have the technology and it would obviate many objections on both sides. If no video, then the cops are held to a much higher standard, and assumed to be conducting a criminal entry.

[Rock Action contra dunphy]

I'd just like to point out that dunphy didn't respond to John's larger point about home invasion and the common law. He couldn't. The right to be in one's house without intrusion was taken very seriously under English common law, it was an animating issue during the Revolutionary era from 1760 onward, and the American experience with generalized searches and seizures heavily figured into the drafting of the Fourth Amendment. Contrary to dunphy's implied insistence of jurisprudential consistency with respect to searches and seizures within one's home, over the past thirty years ? in a turn away from prior jurisprudence -- the Court has adopted a position that has led to a large (and formerly unprecedented) increase in exceptions to the warrant requirement for home invasions. His arguments in favor of these decisions are problematic for these reasons:

a) he adopts a specific line of jurisprudential thinking and passes it off as settled. Specifically, he puts forth a position (a position advocated by many conservative legal scholars) that requiring a warrant for a search is not a requirement of the Fourth Amendment; i.e., there is no textual or originalist argument in support of the warrant requirement, and he claims that searches must only be "reasonable." However, in order for this to be a sound point (assuming he is arguing from an originalist understanding, which I think he is) one must accept that:

i) when doing a textual reading of the search and warrant clauses, they should be read independently of each other, and
ii) this independence also means that there is a "generalized reasonableness" standard by which we judge a warrantless search to be legal or not, and therefore
iii) with regard to warrants and home invasions, we can hold that warrantless searches of a home are "reasonable" because: a) there were similar broad exceptions to common law rules against home entry as exist today, and b) that the Fourth Amendment was written without an intent to proscribe warrantless searches of one's home, meaning (i) that the active hatred of general writs of assistance was meant to prevent these general warrants from issuing at all, and that (ii) the reasoning behind this proscription was narrowly confined to a literal ban on general warrants without probable cause instead of the framers of the Constitution evincing an intent to provide a procedural safeguard that ensured unwarranted home entry did not infringe upon peoples' rights to be secure in their houses, papers, effects, etc.

Needless to say, each of the aforementioned claims are hotly debated, never mind when they're taken cumulatively.

b) Even if the aforementioned line of thinking is the correct way to understand the Fourth Amendment, the current Court still accepts the validity of the warrant requirement for home invasions. What it has done is broadened those acts which would trigger certain exceptions, and the exceptions themselves keep increasing in number, especially in the past thirty years.* This is largely because the decision-making framework of the doctrine still presumptively requires a warrant to demonstrate that a search is a reasonable one. That said, the arguments made above have largely captured the Court's thinking, which is why we see the broadening of the exceptions to the warrant requirement. This shows that the doctrine is not settled in the slightest; to the contrary, it has taken half of a pendulum swing from the beginning of the 20th century.

*Many legal scholars lament that these exceptions have swallowed the rule. While this assertion is up for debate, there is no doubt ? and there is a broad consensus ? that the past decades have seen a dramatic increase in situations where no warrant is required for police entry into one's home.

c) In light of the above, dunphy accuses one person in this thread of encouraging "judicial activism." But the Court, by its decisions, has specifically taken into account the policy goals of law enforcement and security, hardly the mark of a non-activist body impersonally applying given law. What were once fairly objective and firm requirements in the early 20th-century have been replaced by a flexible standard of "reasonability," in which the "reasonability" of a warrantless entry into a home will be judged case-by-case, and in a fact-specific manner that uses a "totality of circumstances" test. Highly flexible and interpretive judicial tests like this are: i) the ones under which rules are most likely to change by judicial fiat ii) standards within which judges can most freely impose their own policy preferences, and iii) necessarily "after the fact" decisions, giving the actors involved (police and criminals) little or no notice or guidance as to what is ? and what isn't ? legal behavior. In light of modern policing goals and the structure of the criminal justice system, this way of doing things invites a "search first, ask questions later" mentality, constantly defining our rights downward, at least as a practical matter.

Again, these are not the hallmarks of restraint, constancy, or settled law.

d) dunphy complains that libertarians largely want to use the Fourth Amendment to stop police malfeasance, and that this agenda colors their judgments when determining appropriate Fourth Amendment jurisprudence. He implies that this one-sided analysis is the wrong way of understanding the Fourth Amendment. This may be true. But the Court itself has considered the potential for police malfeasance and abuse (see: Justices Jackson and Frankfurter in the '40's) when trying to determine what procedures best secure the rights of the people. Quite like us, they often consider a person's interest in these rights as an interest that is often diametrically opposed to the law enforcement officer's interest. This sort of analysis is hardly beyond the pale, hardly paranoid, and often spoken about in the case law from the 1940's, never mind during the drafting of the Bill of Rights.

e) The arguments and complaints expressed by those of us in the comments, the author of the post, and by the author of the article are normative ones. dunphy rarely answers these concerns. Instead, he'll counter an argument with a positivist argument or a procedural one ? often he'll correct somebody by telling them that what the court does is correct by the very virtue of its procedural appropriateness and jurisprudential deference to precedent. But what is being asked ? and commented upon here ? is not whether the Court has the right to determine these issues, nor whether they are in line with prior precedents (however newly created) and acceptable procedures. Nobody really questions this. I know that I am asking whether the decisions arising from the Court are what the rules should be in light of the goals of the Fourth Amendment. It's a judgment issue, and merely re-stating the law and correcting people doesn't cut it.

What the Court has done in Kentucky v. King is to narrow a restraint (police-created exigences) on an ever-broadening exception (exigent circumstances) to a long-standing general rule and its original spirit (warrant requirement for home invasions, or at least procedural methods that ensure a reduction in government power). This general rule and its spirit, in my opinion, is steeped in English common law and American history. In Kentucky v. King, we could decide to view the Court's holding as a narrow one, but the past thirty years have shown how drops in a bucket, emptied into the narrowest of streams, can cause significant erosive effects upon our heretofore bedrock rights.

Yeah, I just took the hot air piss. Unpacking all of dunphy's assumptions took that long. No regrets.

-Rock Action

[Brown wall of silence]

I'd just like to know how many violations of the dunphy has seen by fellow police officers AND how many he reported to his superiors.

[Brown wall of silence]

...violations of the LAW dunphy has seen by fellow police...