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Kagan, Sotomayor, Ginsburg, and the 4th Amendment
New American ^ | 16 January 2011 | Bob Adelmann

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: It’s 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 isn’t 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 couldn’t 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. It’s unfair to the criminal? Is that the problem? I really don’t 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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events
KEYWORDS: 4tha; donutwatch; jbts; scotus; swat
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FYI. Plenty of room available for arguments.
1 posted on 01/17/2011 5:46:01 AM PST by IbJensen
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To: IbJensen
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.

Note this day in history, I agree with Ginsburg and Sotomayor.
2 posted on 01/17/2011 5:50:24 AM PST by TSgt (Colonel Allen West & Michele Bachman - 2012 POTUS Dream Team Ticket!)
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To: IbJensen

let’s pick the wrong house accidentally on purpose...........po po lies we all know that


3 posted on 01/17/2011 5:50:41 AM PST by yldstrk (My heroes have always been cowboys)
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To: TSgt
Note this day in history, I agree with Ginsburg and Sotomayor.

My thoughts exactly.

I also don't want anyone to shoot my dog.

4 posted on 01/17/2011 6:02:22 AM PST by Marylander
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To: TSgt

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.


5 posted on 01/17/2011 6:03:39 AM PST by samtheman
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To: TSgt

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”?


6 posted on 01/17/2011 6:06:54 AM PST by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: IbJensen

Great. Now we have the 3 wicked witches on the Supreme Court.


7 posted on 01/17/2011 6:11:46 AM PST by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: IbJensen

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.


8 posted on 01/17/2011 6:24:45 AM PST by kenmcg
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To: IbJensen
Kagan, Sotomayor, Ginsburg, and the 4th Amendment....

Just the recitation of those three names and the realization that they are Supreme Court justices is enough to make me ill.

9 posted on 01/17/2011 6:31:14 AM PST by Rummyfan (Iraq: it's not about Iraq anymore, it's about the USA!)
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To: Marylander; TSgt

I too agree with them.. calling doctor for head exam next


10 posted on 01/17/2011 6:31:37 AM PST by SF_Redux (the scarier part about all these Marxists is, that a few of them can breed .. with the opposite sex)
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To: IbJensen

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?


11 posted on 01/17/2011 6:42:08 AM PST by apoxonu
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To: IbJensen
I have several problems with the mentioned case.

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.

12 posted on 01/17/2011 7:00:51 AM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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To: IbJensen

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.


13 posted on 01/17/2011 7:17:52 AM PST by Steamburg (The contents of your wallet is the only language Politicians understand.)
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To: Beagle8U

“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 couldn’t use that as an excuse because their actions created the “circumstance” in the first place. Said the court, “


14 posted on 01/17/2011 7:19:23 AM PST by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: TSgt

Maybe hell has frozen over. I agree with Ginsberg and Sotomayor on this one.


15 posted on 01/17/2011 7:19:54 AM PST by Roklok
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To: IbJensen

“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?


16 posted on 01/17/2011 7:47:57 AM PST by 2nd Bn, 11th Mar (Ask the American Indian what happens when you don’t control immigration)
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I also agree with the ladies.


17 posted on 01/17/2011 7:56:42 AM PST by webboy45
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To: IbJensen

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.


18 posted on 01/17/2011 8:10:37 AM PST by yefragetuwrabrumuy
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To: yefragetuwrabrumuy

Sadly you are right.
I don’t like having to count on the cops being reasonable and honorable.


19 posted on 01/17/2011 8:27:03 AM PST by Clump (the tree of liberty is withering like a stricken fig tree)
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To: Bigh4u2
Ok, I missed that fact.

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.

20 posted on 01/17/2011 8:44:01 AM PST by Beagle8U (Free Republic -- One stop shopping ....... It's the Conservative Super WalMart for news .)
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