You Have The Right To Freeze And Be Utterly Silent

by Gary Farber

The Fourth Amendment continues to be onion-peeled into nothingness.  KENTUCKY v. KING puts another nail in the coffin as police gain the right to kick in your door simply because they hear movement within your dwelling.

Obviously that's probable cause, because noise indicates a crime. 

Does that make sense to you?  It does to 8 out of 9 members of the Supreme Court.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR,  and KAGAN,  JJ., joined. GINSBURG, J., filed a dissenting opinion.

Here's the gist: 

[...] 

Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.

In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

The Kentucky Supreme Court suppressed the evidence, saying that any risk of drugs being destroyed was the result of the decision by the police to knock and announce themselves rather than obtain a warrant.

The United States Supreme Court reversed that decision on Monday, saying the police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Justice Alito wrote.

He could have chosen not to respond to the knocking in any fashion, Justice Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.

“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Justice Alito wrote. 

Right.  Let's get more detail.

[...] In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway.  Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana.  At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they  did not  know which apartment the  suspect had entered.  Gibbons had radioed that the suspect was run­ning into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles.  Because they smelled marijuana smoke emanating from the apartment on the left, they ap­proached the door of that apartment. Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud  as [they]  could” and an­nounced, “ ‘This is the police’ ” or “ ‘Police, police, police.’ ”  Id., at 22–23.  Cobb said that “[a]s soon as [the officers]started banging on the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.”  Id.,  at  24. These noises, Cobb testified, led the officers to believe that drug ­related evidence was about to be destroyed.

At that  point, the officers announced that they “were going to make entry inside the apartment.”  Ibid. Cobb then kicked in the door, the officers entered the apart­ment, and they found three people in the front room: respondent Hollis King, respondent’s girlfriend, and a guest who was smoking marijuana. The officers per­formed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view.  In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia. Police eventually entered the apartment on the right. Inside, they found the suspected drug dealer who was the initial target of their investigation. 

So, to recapitulate: the cops simply followed a suspect, lost track of him, had a 50-50 chance of guessing whether he was in the left or right apartment, smelled burning marijuana, yelled "police," then because they ZOMG, heard noise, that was sufficient reason to bust down the door of someone with no connection to the suspect, arrest them, and subsequently convict them, and that's sufficient cause for a search.

So: all the police have to do is be near enough your dwelling to think they hear inside it, decide they hear movement, and voila: goodbye, requirement for a warrant. 

The court sentenced respondent to 11 years’ imprisonment.

So if anyone knocks loudly at your door, and you can't make out what they say: you damn well better freeze.  It might be the police, and if you move, that might be grounds for your door being broken down and your home searched.  

But, hey, if you're not a criminal, what do you have to hide?  Isn't that what constitutional rights are all about?

No?

So what's the right approach?  How about the one the Kentucky Supreme Court gave, which SCOTUS reversed?  

[...] To determine whether police  impermissibly  created the exigency, the Supreme Court of Kentucky  announced a two-part test.  First, the court held, police cannot “deliber­ately creat[e] the exigent circumstances with the bad faith intent to avoid the warrant requirement.” [...] Second, even absent bad faith,  the court concluded, police may  not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the  exigent circumstances.”  [...]  Although the court found no  evi­dence of bad faith, it held that exigent circumstances could not justify the search because it  was reasonably foresee­able that the occupants would destroy evidence when the police knocked on the door and announced their presence. 

Crazy, eh?  But, no, Samuel Alito says it's all your fault if you move.

What's wrong here?  It's not complicated: 

JUSTICE GINSBURG, dissenting. The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.

[...] Circumstances qualify as “exigent” when there is animminent risk of death or serious injury, or danger  that evidence will be immediately destroyed, or that a suspect will escape.  

[...]

The question presented: May police, who couldpause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances?  I would answer no, as did the Kentucky Supreme Court.   The urgency  must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.

[...] “[T]he police bear a heavy  burden,” the Court has cautioned, “when attempting to demonstrate anurgent need that might justify warrantless searches.” [...] That heavy burden has not been carried here.   There was little risk that drug-related evidence would have been destroyed had the police delayed the search pendinga magistrate’s authorization.   As the Court recognizes, in no quarter does the Fourth  Amendment apply with greater force than in our homes,  our most private space which, for centuries,  has been regarded as “ ‘entitled to special protection.’ ”   [...]  Home intrusions, the Court has said, are indeed “the chief evil against which . . .the Fourth Amendment is directed.”  [...] (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.”).  “ ‘[S]earches and seizures inside a home without a warrant are [therefore] presumptively unreasonable.’ ”   [...] 

How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence  of unlawful activity?  

The answer is simple: not at all.

Welcome to the land of the free and the home of the brave.

An entirely separately notable act by SCOTUS today was this: 

[...] Among the cases denied review on Monday, perhaps the highest visibility one was Mohamed, et al., v. Jeppesen Dataplan, Inc., et al. (10-778) — the latest appeal seeking to challenge the closing down of a lawsuit, because the government claims a “state secrets” privilege, seeking to hold someone liable for the Central Intelligence Agency’s once-secret program of “extraordinary rendition.”  That phrase is the technical description of an official practice, used fairly often during the “war on terrorism,” in which an individual is captured in a foreign country, and transferred secretly to another country, for interrogation and, allegedly in some cases, for torture.

In this case, the four foreign nationals targeted by the “rendition” program did not sue the CIA directly, but rather sued a private firm, an affiliate of the Boeing Corp. that was claimed to have provided flight plans and logistics support for CIA-operated planes used to transport the captured individuals to foreign sites.   The four individuals argued that the government had improperly claimed a “state secrets” privilege to shut down the lawsuit entirely, instead of using that privilege only to challenge evidence, piece by piece, as involving national security interests.   The Ninth Circuit, however, ruled that the privilege may indeed be invoked to end a lawsuit entirely, on the theory that it simply cannot be tried in any way without risking exposure of national secrets.

The Supreme Court has refused repeatedly in recent years to hear appeals challenging the use of the “state secrets” doctrine in cases testing secret intelligence or military operations.  It thus appears that some of the most controversial anti-war programs initiated during the George W. Bush Administration may never be tested in federal court.

The entire legal "state secrets" doctrine remains appalling. Just take the executive's word! Who doesn't love a doctrine (U.S. vs. Reynolds) based on a lie?

Cross-posted at Amygdala.

Comments

[CCDG]

Thanks, btw my wife called the local cops while I was typing because she never really listens to me and she doesn't trust any of the neighbors.

They duly noted her weekly call and asked the libertarian to get off the roof (or at least out of her sight line) while inquiring as to how the skunk hunt was coming.

I turned up the CSNY album I play most days and went back to deciding if an eight foot redwood fence is high enough to keep from being invited to the next book club meeting because I still don't like aoili, I don't care how you make it, and the biscuits just can't make up for the taste.

But I am sure impressed by how well read you are, I prefer The Big Bang Theory on tv, but will settle for NCIS reruns if nothing else is on.

[Hartmut]

I have a similar collection of books on my shelves and a psychologist would get really puzzled by it (and that's before he has a chance to check the DVDs).
But at least I have a pretty good reason for the book* on how poison gases spread depending on the local conditions. I am involved in the revision of the European BAT handbook for the chlorine producing industry.
Lacking a printed copy of Mein Kampf the place next to Stalin's Questions of Leninism** is occupied by the single-volume edition of Churchill's WW2 memoirs (with an essay on the post-war period added as final chapter).
Not sure where I put the papal encyclicals. They are not in their proper place next to the anti-papal screeds or van de Velde's Perfect Matrimony (that one of the encyclicals was written to condemn).

*copied, with the blessing of the author
**a perfect cure for insomnia

[Hartmut]

Btw, would that not be the perfect birthday
http://1.bp.blogspot.com/--nZWgjiO6Uo/TdWU9qnfQWI/AAAAAAAAUng/pE73pQjZOoY/s400/kelsey%2Bemb.lw.gun%2Bbday.jpg>cake for Brett's children?

[Brett Bellmore]

I don't know what would make you think that; He's coming up on his third birthday this fall, not his sixth. Aside from that, maybe...

[Gary Farber]

Far be it for me to advise anyone on child-raising, particularly as regards their own child, but I'd wait on the hand grenades until he's at least 7.