Police

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

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

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

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

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

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

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

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

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60 responses to “The Supreme Court's Advice About the Fourth Amendment: Use It or Lose It

  1. Oh, fuck it – the cops can search you anytime, anywhere, for any or no reason at all, and the courts will find ways to justify and allow it. Let’s just stop the fucking charade already and all admit we live in a fucking police state.

    1. we live in a fucking police state
      They’re fucking you? I thought they only shot dogs 🙁

    2. ^^THIS^^

      It’s time to rewrite the constitution. We won’t like what it’ll say, but at least it will be consistent with our practices.

      We’ve gone on for far too long saying one thing and doing another.

  2. what happens when loud music covers the door-banging & shouts?

    1. The loud music is cover for someone destroying evidence, obviously.
      Just like things going suspiciously silent means evidence is being destroyed.
      Or the sound of normal conversation and movement means evidence is being destroyed.

      Pretty much any sound or no sound means evidence is being destroyed.

    2. They banged on the door and shouted, “Police!Police! Police!”

      Past tense of banged is bong.

      Just sayin’.

  3. What if the ‘sounds of movement’ are coming from him on his way to the door to utilize his Fourth Amendment rights.

    By the way, since when was the Fourth something you had to actively use? Isn’t not opening the door utilizing the Fourth?

    1. Isn’t not opening the door utilizing the Fourth?

      Apparently you have to appear at the door and say the magic words. But then saying the magic words would probably create an exigent circumstance justifying entry anyway.

      1. Or just opening the door allows them to “see” something exigent.

        It’s amazing how no matter what, they win, isn’t it.

        1. Well, yeah, ever since the Constitution has been ‘interpreted’ to allow the government to do whatever they plase.

      2. Apparently you have to appear at the door and say the magic words.

        ABRACADABRA?

        OPEN SEZAME?

        SIM SIM SALA BIM?

        There are no dogs in this residence?

        1. There are no dogs in this residence?

          Was there ever a dog? Is this a “dog-ready” residence?

          Stop resisting!

      3. What happens if you stand behind your unopened door and demand that they articulate why they think they can come into your house without a warrant?

        You’re not obliged to open your door absent a search warrant.

        1. Then you end up with a door bashing your face in.

        2. I think Justice Alito might take issue with your analysis.

      4. With this case, one would think there are now enough exigent circumstances so as to make the need to go obtain a warrant obsolete.

  4. The police had been chasing a suspected crack dealer at a Lexington, Kentucky, apartment complex and mistakenly believed he had ducked into King’s unit because of the “very strong odor of burnt marijuana” emanating from it.

    Yes, a crack dealer running from the cops is going to light one up while hiding in an apartment. Makes perfect sense why the cops thought he might be in there.

    1. That’s what I came here to say. Do the cops not engage in any critical thinking at all? Did they really believe that the smell of pot was in any way tied to a fleeing crack dealer?

      1. Does crack smell when it is burned? Or for that matter, do other hard drugs? Is there a chance of a “strong odor of buring heroin” being an exigent circumstance?

        I really need to do more drugs, so I can answer these questions first hand

  5. I honestly expected the Second Amendment to be torn to pieces and shat on before the Fourth.

    1. Are you positing that it has not?

      Shit, the 2A has been beaten, battered and torn for years.

      “Sporting purpose”?
      “Assault weapons” based on cosmetic features?
      “Hi capacity” magazines?
      “Cop killer” bullets?

      1. True, but there are plenty of people fighting back for the Second.

        The Fourth seems to have died unloved and buried in a pauper’s grave.

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

    That seems like bootstrapping. “We don’t have any legal basis to enter and search this house; but if we ‘think’ there might be a crime going on inside and we ‘think’ the person inside might be ‘destroying evidence’, that can create an exigent circumstance allowing us to enter without a warrant.” Seems like an end-run around the 4th. They created the exigent circumstances themselves. Thereby acheiving indirectly what they could not do directly.

    Fucking statist asshole. So we’ve got right-wing statists and left-wing statists on the Court. Lovely.

    1. There are non-statist right wingers and left wingers? Since when?

      1. The state can’t fly very far without two wings.

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

      Translation: Let them eat cake.

      I wish some SWAT team would do a wrong-address no-knock raid on his home. Maybe dragging him and his mistress out on the lawn in their skivvies in the middle of the night would slap some of the asshole out of him.

  7. These opinions and rulings come from attorneys-turned-judges who have never been in a position of dealing with law enforcement and not being able to say, “Do you know who I am?” They have no frame of reference.

    1. Well they’re also the ones that encouraged these police tactics when they were prosecutors so they could get said evidence. So as not to be hypocritical, its best they justify these actions.

    2. That immediately occurred to me too. They can be blase about this because no cop would dare treat their exalted lordships in such a manner.

  8. WTF? Oh, I know. Anyhow.

    the Supreme Court essentially has created a new “sniff, knock, listen, and kick” rule, under which police can retroactively validate a warrantless search simply by claiming they smelled something funny and heard something suspicious.

    Can’t be. dunphy said the cops wouldn’t ever do something like this. And he knows, because he’s a cop.

    1. and you can trust dunphy because he bases his opinion on the real world.

      1. And he’s done everything, including dragging a corpse.

    2. Can’t see why dumping on dunphy is fun or even appropriate. In this case, I’m sure that he doesn’t make absolute statements like “wouldn’t ever”. His style of argument is much more convincing than is yours.

  9. Every time I hear one of these court cases, I realize how much the drug war/immigration war has done to destroy our constitution. If drugs weren’t illegal, there’s very few situations where cops would need to demand entry and little to no justification of “potentially destroying evidence”. If immigration wasn’t such a legislative hell, cops would have no reason to pull over motorists on flimsy excuses and violate their rights. We’re voluntarily destroying our society by putting police in these positions and encouraging their behavior by adding all of these perverse incentives to violate the consitution at every turn. Its too bad most people (including those most at risk of falling prey to these violations) can’t see what they’re doing.

    1. This is 100% correct, but it’s not just the drug war and immigration. Even little shit like cell phone talking bans in cars give cops excuses to pull you over and then find a way to search you.

      Every law banning something that does not expressly harm another encourages this.

      1. Well said.

  10. Someone ought to remind the “supreme” court that the Constitution was meant to restrain government, not to place additional burdens on the populace. Or is it now okay to torture a confession out of someone if the suspect doesn’t verbally assert their fifth and sixth amendment rights?

  11. Does every single judge in this country live in cloud-cuckoo land?

    1. You have to remember that the justices on the Supreme Court went to the finest schools and straight on into prestigious (mostly government) jobs and stayed there until their appointments. They have probably never had to deal with police in any sort of adversarial capacity other than the odd speeding ticket. They literally have no clue that there just might be corrupt police and corrupt DA’s who are more than willing to shred a citizen’s rights for their own ends.

      Welcome to the plutarchy.

  12. I realize how much the drug war/immigration war has done to destroy our constitution.

    Don’t forget MADD; now, they want any conceivable excuse to pull you over so they can ask, “Have you been drinking?”

    And, of course, It’s not a Right, it’s a Privilege! to travel from point A to point B.

    1. Yeah, there is no right to travel freely..oh, wait…

      1. But you’re driving on the government’s roads! Therefore, they have a right to regulate who may use them and the manner in which they are to be used.

        Not like those roads were built and maintained with tax money or anything…

  13. If there was a just god, Scalia and Alito would get pulled over in bum-fuck Mississippi, attempt to assert their 4th Amendment rights, then get the shit beat out of him.

    1. Did you fail to notice that the decision was 8-1? Why do you fixate on Scalia and Alito when every liberal, save Ginsberg, sided with the majority?

      1. Because as conservative standard-bearers, they’re supposed to know better. I expect this shit from liberals. Also, Alito wrote the opinion for the majority.

        1. Most conservatives I know love cops and their m.o.

        2. Know better than what? Conservatives take the same ? la carte approach to the Bill of Rights that liberals do. They just pick different ones to ignore.

  14. Pelican

    CB

  15. police can retroactively validate a warrantless search simply by claiming they smelled something funny and heard something suspicious.

    Oh, come on — it’s not that simple.

    “Do you *solemnly* SWEAR that you smelled something funny and heard something suspicious?”

  16. My only wish is Alito has dogs and an easy to confuse address, and maybe a ten year old in the house.

    1. I wouldn’t wish that on a dog. It’s not like they chose to have an elitist prick for a master.

  17. This is no big deal. Even if an illegal search leads to a conviction, you can just ask the Supreme Court to order your release because the jail is too crowded.

  18. And that preposterous suggestion to “stand on your Fourth Amendments rights” assumes you have a staff (funded as if by magic) of clerks lackeys to do your legal legwork for you. And that you get paid to sit around and scratch your chin ass for the greater part of the year.

  19. It’s a good thing we now have a Wise Latina? on the Court to guard minorities against such abuses by the police.

    Oh, wait …

  20. What else would you expect from Strip Search Sammy?

    We knew when he was confirmed that he would never meet a police action he didn’t approve of.

    1. This.

      Appoint a court full of former DA’s and AG’s and we’re somehow shocked that they’ll bend over backwards to approve of every search they see? Yeah, not really.

  21. bad cases make bad law.

    it was not the intent of the 4th amendment to actively shield law breakers from the law. it was designed to shield law abiding citizens from tyrants.

    it’s not like they busted down his door and then nabbed the dude for possessing a joint.

  22. On second thought, it really is the responsibility of the homeowner to stand up to police officers, damn the consequences. Enter Jose Guerena, ex-Marine shot in his home by a swat team. According to Lt. Michael O’Connor, Jose “brought this all on himself by presenting himself the way he did.” http://j.mp/KGUN9_ABC.

    In other words, if you show the type of resistance that Alito contemplates, the police then have a reason to shoot you.

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