Thursday, May 19, 2011

Footnote to the preceding

You know what is the saddest thing about the Indiana Supreme Court finding that "modern Fourth Amendment jurisprudence" means you can't resist illegal police entry to your home?

They may be right. From the New York Times:
The police do not need a warrant to enter a home if they smell burning marijuana, knock loudly, announce themselves and hear what they think is the sound of evidence being destroyed, the Supreme Court ruled on Monday in an 8-to-1 decision. ...

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.
What happened was that some police in Lexington, Kentucky, saw a drug deal in a parking lot and went into an apartment complex looking for a suspect. They pounded on the door of the wrong apartment and heard what they claimed were sounds making them think 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.
"Warrant?" replied SCOTUS. "What is this 'warrant' thing of which you speak?" On Monday, the Court ruled that
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.
Now, the police said they went to that apartment because they smelled burning marijuana. Are we supposed to accept that if King had opened the door and said "You can't come in" that the police, in the face of an even stronger smell of marijuana (assuming their original claim to be true), would simply say, "Oh, okay," and leave?

Or that if they at that point had said they had "probable cause" to enter, Alito would have disagreed?

Or that if someone had gone to get a warrant while cops remained just outside the door, that if in that time they "heard sounds" that made them think "evidence was being destroyed" and the broke down the door, Alito would have disapproved?

Are you joking?

Besides, what constitutes a sound that gives rise to a fear of evidence being destroyed? Of that, Jon Walker at Just Say Now, who tipped me to this news, makes this observation:
The flushing of a toilet, running of a faucet, opening of a plastic bag, ripping of paper, turning on of a stove burner, or even the sound of foot steps if the officer can claim he “believed” the suspect was moving toward a fireplace (which may or may not exist) are all sounds the police use to say they had the suspicion that evidence might be destroyed. I can also assure that almost anytime the police start loudly knocking at the door late at night they are going to hear some noises they could label as reasonable suspicion.
To see how inane this decision is, consider this part of it:
“Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment,” [Alito] wrote, “warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”
In other words, the fact that the police did not threaten to forcibly enter illegally made it legal for them to forcibly enter.

The only dissenter, Justice Ruth Bader Ginsburg, nailed it:
“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.” ...

“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?” she asked.

Footnote: One other thing to point out here is that all these sorts of decisions inevitably, invariably, rely on one assumption: Police always tell the truth and never falsify their reports or their descriptions of events.

I got this bridge, y'see, and it's at a really great price....

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