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.
Thanks for the clarification of the facts on the ground. It’s still a leap to assume that, given his physical proximity of the known, warranted dealer, he must naturally be another dealer. But the facts do back you up! It will be interesting to see if the SCOTUS upholds the state Supreme Court.
As a general proposition, I am against Police being able to crash any door they “claim” emanates an odor of marijuana. You can’t cross-examine a subjective call like that, so Police need to err on the side of liberty. That is in opposition to their natural proclivity, which is to treat “civilians” as a lower class than themselves.
See post 39
That would be my question, as well.
Suppression of evidence obtained unlawfully is our only protection against runaway police. Without some consequence for action out-of-bounds, the police would simply do anything they want and just say, "Oops, we made a mistake" and the Fourth Amendment would mean nothing.
Scalia needs to hold the police to the standard of expecting them to get the correct address. Why should a jury believe the statements of the informant if similar statements to police resulted in searching the wrong home?
Finding evidence behind a door does not change an unlawful search into a lawful search. Imagine the problems we would have if it did.
See post 39, and click the link. It has the facts in the case that were totally lacking in this article.
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.
Nope. The only improvement to your argument by including more of it is that the guy is a pot user living next door to a dealer, so therefore, he is also a dealer. The quote I lifted was in context. It takes more than what you call "common sense" to throw people in jail...or at least it should.
I'll explain why I say that. The guy is in fact a scum bag drug dealer, multiple felon. I can see where those facts may give the conservative judges pause, because that guy will walk free if they rule in his favor.
I'm sure the civil liberties lawyers could have found dozens of better cases to settle the issue.
That is a good quote.
We wouldn’t have known any of this about the guy who got the 11 years, had the cops not violated his 4th Amendment rights by bashing his door in based on 1) an odor and 2) a sound (both subjective calls that cannot be cross-examined later in a court of law). I’ve heard cops brag they can say that about anybody they wish to throw into the slammer, which is why I don’t trust them at all.
This is all poisoned fruit, and I’m disappointed Scalia sees nothing wrong with it. I’m also disappointed in some fellow FReepers.
Bump in amazement that I too seem in agreement with them.
Me too.
Having a badge doesn’t mean the law no longer applies. No matter what the cops say.
Correction: dead robbers (someone who breaks into a dwelling for the purpose of illegitimately accosting the occupants therein is a robber, regardless of what badge he wears).
Were juries in cases involving dynamic-entry searches given all the evidence surrounding searches and the conduct thereof, and asked to answer yes or no as to whether they thought the searches were reasonable, do you think they'd answer in the affirmative? Some would, sometimes, but a lot would respond very negatively.
Sarcasm noted.
For some "strange" reason, when cops get shot during a dynamic entry, they frequently abandon the dynamic entry and establish a siege. If the dynamic entries were being conducted to protect officers' safety, such a policy would make no sense. If it's necessary to conduct a dynamic entry in case the occupants are hostile, shouldn't such tactics be ramped up if actual hostility exists?
The conclusion I draw from the cops' behavior is that cops justify dynamic raids by claiming suspects are dangerous, they are more prone to conduct dynamic entries in those cases where they think they can do so safely, i.e. where the suspects aren't dangerous, than in cases where the suspects actually are dangerous.
Why do you think you never hear about “dynamic entry” being used on gang’s houses?
Lulz! Wut?
Do you know what the standard for probable cause is? Probable cause is not a high bar, the Founders never intended it to be. The standard for probable cause is far less than "preponderance of the evidence" (50%+1).
The exclusionary rule (fruit of the poisonous tree) isn't in the Constitution. In fact, under the law that the Founders established, evidence, NO MATTER HOW OBTAINED, was admissible in the Courts. One could seek separate actions against authorities if they obtained the evidence illegally, but the evidence was still admissible.
So tell me, why were the Founders wrong? Why was the Constitution as written by the Founders wrong? What made activist courts who invented the rule from the bench (as it isn't in the Constitution) right? Why did they become right only after more than a Century of the prior practice?
http://ksax.com/article/stories/s1697527.shtml
http://www.wsoctv.com/news/15425120/detail.html
http://www.lodinews.com/news/article_4b4175f9-5539-598f-952e-07feefd886a8.html
http://www.dailybreeze.com/news/ci_14958914
http://www.turlockjournal.com/news/article/6911/
http://www.eastvalleytribune.com/local/mesa/article_238b0164-f448-11df-bf44-001cc4c002e0.html
http://www.csmonitor.com/From-the-news-wires/2010/0615/Outlaws-motorcycle-gang-in-shootout-with-ATF-1-biker-killed
Don't let facts get in the way of opinion though... ;)
The standard for probable cause is well above the “I felt like it” level. It explicitly requires that an officer of the law be able to express a cogent probability that a crime has been committed. It takes a judge to hear the officer’s statement and agree that it is “enough” to warrant investigation.
In other words - it takes a modicum of time to make sure that whim is not the standard for search and seizure.
Having the judge involved helps to defray the rationalization of an illegal search by the police.
“I smelled a smell outside the apartment next door to a dope dealer, and there were sounds of people inside, who didn’t open the door when we knocked” doesn’t sound to me like a reasonable level of probable cause. But maybe I just expect the rules to apply to every one.
If someone testified to a judicial official that they smelled the odor of marijuana coming from an apartment, it would absolutely be enough to establish probable cause for a warrant to search that apartment. See United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir. 1992); See also Horton v. Goose Creek Independent School District, 690 F.2d 470, 477 (5th Cir. 1982); United States v. Barry 394 F.3d 1070 (8th Cir. 2005).
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