Skip to comments.Kagan, Sotomayor, Ginsburg, and the 4th Amendment
Posted on 01/17/2011 5:46:00 AM PST by IbJensen
When the U.S. Supreme Court agreed to hear oral arguments on a Fourth Amendment case decided by the Kentucky Supreme Court (Kentucky v. King), alarm bells went off. Under the Fourth Amendment, as readers are no doubt aware, 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.
But what if police pick the wrong house, pound on the door loudly, announce that This is the police! and then, smelling pot, break down the door without a warrant and arrest the homeowner for violating local drug laws? What if the homeowner is sentenced to 11 years? What if all appeals rule in favor of the police?
Picture this: Its 9:30 at night, and a police informant does a drug deal with a known narcotics dealer outside an apartment complex in Lexington, Kentucky. Upon completion of the deal, the informant calls in the local police waiting nearby to arrest the miscreant, but isnt clear about which apartment the dealer entered: door number One, or door number Two? The police arrive at the scene, and pick door number One, occupied by Hollis King and some friends, no relation to the dealer behind door number Two. The police, smelling marijuana, bang on the door, and, when they hear movement inside, break down the door, find drugs, and arrest King and his friends.
Despite claiming that the police had no proper warrant, King gets 11 years. The police officers claim an exception to the Fourth Amendment, called an exigent circumstance, and the courts buy the police story. According to testimony, the officers not only smelled the burning weed, but, after announcing themselves loudly, they heard movement inside the apartment that they concluded was the occupant trying to destroy potentially damaging evidence. Since this was happening in the instant, there was no time to get a warrant; they had to move quickly, and so they kicked down the door, found some drugs, and arrested King.
When the case reached the Kentucky Supreme Court, however, that court ruled that there was no exigent circumstance and, even if there was, the police couldnt use that as an excuse because their actions created the circumstance" in the first place. Said the court,
While probable cause existed for police to obtain a warrant to enter the apartment occupied by King, police did not have proper exigent circumstances to justify a warrantless entry. Further, the entry was not justified by imminent destruction of evidence. The odor of marijuana alone did not provide a justification, and any exigency arising from the sounds of movement inside the apartment was created by [the] police, and therefore cannot be relied upon as a justification.
Now the Supreme Court has agreed to hear the case. Justice Elena Kagan explained her concerns: One of the points of the Fourth Amendment is to ensure that when people search your home, they have a warrant [but] of course there are exceptions to that. Justice Ruth Bader Ginsburg wondered aloud whether the lower courts positions, if allowed to stand, would allow the police to go to the apartment building and then sniff at every door, trying to find a reason to invade the home without a warrant. Justice Sonia Sotomayor expressed concern as as to whether the police could enter a dwelling at any time without a warrant, so long as they thought some kind of wrongdoing was taking place on the other side of the door. She wondered if the police could use the King excuse about hearing suspicious noises inside as sufficient probable cause to enter.
On the other hand, Justice Antonin Scalia opined that the police did nothing wrong. When they knocked on the door, the occupants could simply have answered and denied the police entry without a proper warrant: Everything done was perfectly lawful. Its unfair to the criminal? Is that the problem? I really dont understand the problem. But the homeowner did not invite the police in either, and law enforcement's forcible entry raises questions about how secure Americans are in their homes from "unreasonable searches and seizures," the clear language of the Fourth Amendment notwithstanding.
let’s pick the wrong house accidentally on purpose...........po po lies we all know that
My thoughts exactly.
I also don't want anyone to shoot my dog.
I agree. Though it pains me to say the same thing you just said. I agree with Ginsburg and Sotomayor.
One thing left out of the story... what did they find in that apartment that resulted in an 11 year sentence. That sounds excessive for marijuana.
But, like all lousy journalists writing today (and they do seem to be in the vast majority these days), they leave out little “details” like that.
Seriously - no warrant, no search, and especially no breaking and entering.
And no “dynamic entries” either. These need to stop POST HASTE. How does the homeowner know the difference between “police getting the wrong address” and “criminals yelling ‘police’ as they break down your door to harm your family”?
How does he know whether to go into “defending the family” mode (and get killed by the police) or cower on the floor for the “authorities”?
Great. Now we have the 3 wicked witches on the Supreme Court.
To force entry due to the supposed odor of grass is questionable. The PD could have waited for a warrant to be issued....and in this case a judge could be relucatant to issue a warrant. But suppose the cops smelled gas emanating from a residence and knocks on the door met with silence....the PD in my estimation would be justified to enter immediately if safety was a concern.
Just the recitation of those three names and the realization that they are Supreme Court justices is enough to make me ill.
I too agree with them.. calling doctor for head exam next
Whiskey Tango Foxtrot.
I feel sick. I actually agree with Sotomayor, Ginsberg and Kagan? What is wrong with me?
Better yet, what is wrong with Scalia?
First off, you don't get 11 years for having a small amount of pot for personal use.
Second, no pot user lives next door to a known pot dealer and isn't involved with that dealer in some way. Common sense tells you that the neighbor of the dealer, was also a dealer. See point one.
This smells like a piss poor case to take all the way to the USSC, just to get every shred of evidence thrown out.
Final point, it costs big bucks to ever take a case to the USSC, how does a non-dealer, living in low rent housing, come up with that kind of cash? See point one.
I was sure that they had never read the Constitution or the Amendments. I have to eat my words on this one. They seem to have it right. My home is my castle and there are strict limitations on when the Government may intrude.
Now if they could just apply that same literal interpretation to the rest of the Constitution I could sleep at night.
“Final point, it costs big bucks to ever take a case to the USSC, how does a non-dealer, living in low rent housing, come up with that kind of cash?”
I think you’ve got it backwards.
If I read this correctly,he appealed and the Kentucky Supreme Court ruled the entry was unlawful.
I think the State is taking it to SCOTUS.
“When the case reached the Kentucky Supreme Court, however, that court ruled that there was no exigent circumstance and, even if there was, the police couldnt use that as an excuse because their actions created the circumstance” in the first place. Said the court, “
Maybe hell has frozen over. I agree with Ginsberg and Sotomayor on this one.
“Justice Sonia Sotomayor...wondered if the police could use the King excuse about hearing suspicious noises inside as sufficient probable cause to enter.”
But, but...if she’s such a effing ‘Wise Latina’, why does she have to wonder? Shouldn’t a ‘Wise Latina’ KNOW the answer?
I also agree with the ladies.
There is a hidden argument in here as well.
As “common practice” police no longer arrest people for just drug possession. This is because they have learned that juries are no longer amicable to conviction based on drug possession alone. So guaranteed, whenever a drug arrest is made, there will be a second charge unrelated to drugs. This gives the jury a psychological evasion, no matter how contrived the charge, of conviction for something else.
However, “contrived” charges can still result in serious prison time.
This also impacts violations of the 4th Amendment. Say the police decide to make an “exigent” search of your home because they “smelled marijuana smoke”, which is both subjective and cannot be cross-examined later. Then they “heard noises within”, which again cannot be cross-examined.
They charge into your dwelling without warrant. If they do not identify themselves, it is just your word against theirs.
Even if there are no drugs at all, they will be looking to charge you with a “contrived” offense. As a standard unofficial policy, many police departments now tell their officers to kill any dogs found, as the most it may cost the police is a small fine, and it will establish their dominance and control of the situation.
Cities have a policy of “sue us” for the broken door, dead animals, and any emotional distress, figuring they will pay little. So apologies are out of the question, as they could be seen as an admission of guilt.
Once inside your dwelling, a comprehensive search will destroy all your food, confiscate any guns and ammunition, and keep you and your family handcuffed and on the floor, whatever your state of dress or undress, even if someone is taking a shower.
Even if you are totally innocent, the police can arrest you for resisting arrest if they so choose. Otherwise they can “hunt and peck” looking for common criminal offenses like possession of any scheduled medicines that are expired or no longer have a current prescription. They can break through any locks that deny them access, punch holes in walls and the ceiling, tear up carpet and destroy furniture. No limit, really.
Sadly you are right.
I don’t like having to count on the cops being reasonable and honorable.
It still doesn't explain how he had the money to appeal all the way to the state SC.
I still think the guy was in fact a drug dealer himself, and there are better cases to take to the USSC on the ‘no warrant’ issue.