4th Amendment? What 4th Amendment? Supremes Say Police Can Create Conditions To Enter Home Without A Warrant
from the did-they-really-say-that? dept
We've been discussing various ways that our government and the courts have been slowly chipping away at the 4th Amendment, what with warrantless wiretaps, searching laptops, TSA agents groping people, etc. And the Supreme Court just took a huge chunk out of the 4th Amendment in saying that police can raid homes without a warrant if there are "exigent circumstances" -- even if those "exigent circumstances" are created by the police themselves.The law, to date, had been that police cannot enter a home without a warrant unless they had both (a) probable cause and (b) "exigent circumstances" in which getting a warrant would not make sense. In this case, police were searching for a drug dealer who had gone into an apartment complex. Outside of one apartment, they smelled marijuana -- which created probable cause. At this point, they should have obtained a warrant. Instead, they banged on the door and shouted police. At which point they heard a scramble inside, and busted in the door, claiming that they believed the scramble was the possible destruction of the drugs. The argument then was that this noise -- even though it was entirely created due to police action -- represented exigent circumstances that allowed them to bust in the door without a warrant. The Kentucky Supreme Court said that while the noise might be exigent circumstances, since it was illegally created by the police, it could not be used.
Tragically, the Supreme Court -- by an 8-to-1 vote -- has now disagreed, saying that this is perfectly consistent with the 4th Amendment. With all due respect to the 8 Justices and the Court, I can't see how that's reasonable at all. This sets up a dreadful situation which will be abused regularly by law enforcement. It lets them create yet another situation where they may avoid oversight, by creating their own exigent circumstances, and then using that as an excuse for avoiding a warrant and any required oversight or limitations. I believe that Justice Ginsburg's dissent is much more compelling. Her dissent points out that exigent circumstances are only supposed to be used in very rare circumstances when getting a warrant is not possible or practical. Yet, in this case, the police easily could have secured a warrant quickly upon smelling marijuana.
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 pending a magistrate�s authorization. As the Court recognizes, "[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police." ... Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.In fact, she notes that "Home intrusions, the Court has said, are indeed 'the chief evil against which . . .the Fourth Amendment is directed.'" So it seems positively ridiculous to claim that such a home invasion is acceptable under the 4th Amendment. This is a tragically bad ruling by the Supreme Court that will have massive and dangerous consequences. We already have law enforcement pushing the boundaries of individual privacy rights, and now they have even more tools to take that further.
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Filed Under: 4th amendment, home searches, police, supreme court, warrants
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Figures
I wish I could say that I was surprised that the Supremes seem to be overwhelmingly in favor of such crap.
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Re: Figures
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Obviously
Couldn't be, the 'victims (I hate that word)' lived in an apartment.
If the victims lived in a $750,000 house, on the other hand--the kind which Supreme Court justices are likely to inhabit--it would be a very different situation.
The 4th Amendment is as strong as ever; if you're wealthy.
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Unfortunate?
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Re: The incidence of cops being shot is going to increase greatly.
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Re: Re: The incidence of cops being shot is going to increase greatly.
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Good. When you trample on people's rights you get shot. That should be the official policy.
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Than I remember that the bad news I have been reading is REALLY BAD NEWS! It speaks of a level of greed and curruption beyond redemption. It gives me a terrible feeling of helplessness when I hear about shit like the Protect IP/COICA sham. I can't believe we have elected officals that get away with even proposing these kind of ideas without being mercilessly ridiculed, and eventually never spoken of again. It speaks volumns of the American people that we let it happen. Police are being granted powers that our great grandparents would have killed people over, and Supreme Court Justices are backing it up!
There is one hope though in my eyes, but it's such a dim hope that I might take it as a sign that God is real if it happens. The hope is, once this perpetual downward spiral ends, it can be rebuilt. It aint like the old days though. We have over 300 million people living in the United States now. At the end of that downward spiral, how are 300 million Americans going to handle it? Civil War probably. I think I already know what side I'd be on if it happens in my lifetime...
On my own, in the woods. Possibly in a van down by the river.
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"Just like the Unabomber, your honor..."
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That's nothing compared to the corruption that exists among the FDA (and the rest of the government) and pharmaceutical/medical and agricultural industries. Reading about the corruption in those industries is far worse than what Techdirt covers. Eventually I stopped, it's too disturbing.
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Oh, good.
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It's getting to the point where I have to say that there needs to be a second American Civil War to reinstate the Constitution's protections, and that a bunch of these idiots on the Supreme Court need to be arrested and thrown in prison for violating the oath they swear to uphold the Constitution.
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Re: Re:
It's not reported by the media because no major channel wants to ruffle feathers with their advertisers. And when one of the advertisers is the US government and all of its subsidiaries (all 267+ of them...) we have a HUGE problem.
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What to do?
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I'm certain that the founding fathers would be flabbergasted to see their document being used today.
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I'm certain they would be pleased at it lasting this long, but not so pleased at some of the activist judges (on all sides) who have made rulings seemingly based on their own personal beliefs rather than the rule and spirit of the law.
Why change the Constitution when you can just change the definitions of what the legal terms mean? You don't need to Congress to vote on it, nor the States to ratify it. Sooo much easier.
History has shown us time and time again, any government that subjugates the will of it's people long enough, ultimately ends up destroying itself by overreaching it's granted authority. Power can come from the barrels of guns, but those guns must have more and more people behind them to enforce draconian laws, until a tipping point is reached and a revolution takes place.
So, is a new Constitution possible?: Yes.
Odds on getting one without those in power stepping down and/or a revolution/civil war?: Slim to none.
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I heard a noise
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Re: I heard a noise
There is no reason why 'just hearing a noise' that sounds like scrambling should allow the police into a home.
With that reasoning, the police could say that just because they hear a woman groaning/screaming, they can assume that a woman is being raped.... and they will be witnesses to a lot of home births in that situation!
They can say that just because they hear a child yelling, that they can assume the child is being raped.... and will walk in on a lot of cases of parents tickling their children or playing with their children.
The Fourth Amendment is getting weaker and weaker as time goes on because of stupid rulings from the Supreme Court like this one.
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I guess it depends on the "scrambling..."
However, it sounds like SCOTUS would be right in concluding that "exigent circumstances" can include those instigated by the police in certain ways:
Police get called to domestic disturbance. Police knock on door, and say "Hello! Police Department!" (assuming that identifying themselves is necessary for this hypothetical situation...) Police then hear gunfire that was obviously instigated by them shouting "Police Department!" and/or knocking.
Is it ok for them to enter? There's a big difference between "scrambling" and gunfire, but a hard line saying that "exigent circumstances" can't be "created" by police.
"The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence,� Alito wrote. �We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies."
I see nothing wrong with that paragraph as written if it is indeed truthful.
Now, the real issue here is that police are doing this when the crime is simply possession of drugs that lots of people don't think should be illegal in the first place. Now, if you want to argue whether those drugs should be illegal, that's a valid debate worth having. But that issue should be argued separately from whether "exigent circumstances" can be created by police.
I'll agree and concede that the burden of proof should be on the police to PROVE that the "scrambling" they heard really met the proper criteria. I just don't think whether the police knocked first should have anything to do with it.
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Re: I guess it depends on the "scrambling..."
No one would be complaining if the police knocked on the door and the perps reacted by attempting to dispose of their hostages and the police busted in and saved them. It makes sense to have this rule (yes, even if the police knock). You just need to make sure it's actually an emergency or at least they believe it's a real emergency.
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Re: I guess it depends on the "scrambling..."
Hear a gunshot? Okay
Hear somebody screaming for help? Okay
Hear movement in a house? Better get a damn warrant or have a defensible reason to believe that bodily harm has or is about to take place.
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Re: Re: I guess it depends on the "scrambling..."
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Re: I guess it depends on the "scrambling..."
Emphasis mine.
In your example, the "exigent circumstances" were not created by the police - the circumstances were made "exigent" by the call.
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Re: I guess it depends on the "scrambling..."
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Re: I guess it depends on the "scrambling..."
Also, the gunfire, especially if it was not directed at the police, could easily have been instigated by outside forces, such as an argument that had recently escalated inside the house.
One of the most frustrating things about this case is that it provides hardened criminals an advantage over average citizens who would panic or otherwise show fear at the discovery of a possible police raid, while the criminals who had dealt with police in the past would be able to react calmly and not allow the exigent circumstances.
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This is a tough case. I wish you could see that.
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Re:
This is weakening the law to the point where the police are going to say "WHY THE HELL SHOULD BE BOTHER WITH A WARRANT ANYWAY! WE WILL JUST CLAIM EXIGENT CIRCUMSTANCES!"
I can very well see them doing that in the future.
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Breaking down a door without obtaining a warrent b/c of smelling marijuana is against the law, even if somebody has tap dancing shoe's on, and is making shit tons of racket. (please consider my strong sense of right and wrong.)
2ndly Breaking down a door without a warrent for anything but sounds of gun fire, or somebody inside the residence getting viciously beat to death is against the law too. I don't fucking care what the Kentucky Supreme Court Justices say.
Time to arm yourself citizens, the police and/or government is that much closer to becoming our full blown enemy.
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Umm, the Kentucky Supreme Court agreed with you, it's the US Supreme Court that has now gutted the 4th amendment. So this ruling now applies nation-wide, with no chance of appeal.
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Oh yeah, DRUGS! Along with terrorism, one of the most popular excuses for eliminating constitutional rights.
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Different strains, growth environments, age, quality, being bagged, form of consumption (vaporizing, smoking, baking), etc change the strength of smell for Cannabis. Ever heard of LA Confidential? Its a strain of Cannabis that doesnt smell nearly as strong as others. Then there are skunk strains which are typically very pungent.
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Re:
That's probable cause. That's not exigent circumstances. And they could have called for a warrant.
Moreover, it�s absolutely true, as the majority points out, that �in some sense the police always create the exigent circumstances.�
That's a total cop out. In this case, the exigent circumstances the cops relied on were entirely of their own making.
Saying that they always create exigent circumstances is misdirection, at best.
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If they have so little marijuana that it can be consumed in the five minutes that it takes to get a warrant, then the cops shouldn't even be there. They have more important things to worry about.
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Toilets flushing, obviously
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Re: Toilets flushing, obviously
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Re: Toilets flushing, obviously
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And that's why...
When the government got too corrupt it was the right AND DUTY of it's citizens to overthrow it and establish a new government.
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10. Is that pot I smell?
9. I think I hear a woman screaming.
8. I smell smoke.
7. Do you her a baby crying?
6. It's easier to ask for forgiveness than for permission.
5. Did you understand what he said? No? Me either.
4. There's someone with a camera in there!
3. If they aren't doing anything wrong, then they have nothing to worry about.
2. Warrant? We don't need no stinking warrants!
And the number one Reason the Police can break down your door:
1. So, what story are we using this time?
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http://www.techdirt.com/blog/wireless/articles/20110425/11220014028/swat-team-raids-home-b ecause-guy-had-open-wireless-router.shtml
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Offbase
The police were in hot pursuit of a drug dealer who the police had just witnessed obtaining drugs. They were just far enough behind to not see which of two doors he'd entered. They knocked on one of the doors and announced themselves after which they heard someone inside apparently trying to destroy evidence. After they didn't respond, they kicked the door in and oh hey look, there's 'another' druggie trying to destroy his stash.
I'd generally disagree however in this case it was just his really shitty luck that the police actually did have enough cause to kick the door.
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Re: Offbase
So lets say your a drug dealer running from the cops. You finally give them the slip in an apartment complex. Then you decide hey, I'll just go ahead and spark up a joint while I'm hiding from the cops!
Smelling weed in no way shape or form gave them the right to break into that apartment. Last apartment I lived in had skunky smelling bushes all around the place that smelled like weed. by that logic cops could have walked through those apartments anytime they wanted.
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Re: Re: Offbase
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From the facts mentioned, there was a drug dealer. The cops had reasonable assumption that the dealer was in the apartment, either from an eye-witness or anonymous tip or otherwise. While I agree that obtaining the warrant would have been the best case scenario, they smelled marijuana (which the possession of, is illegal) and decided to make contact with the suspected apartment. After stating their business (It's the cops), they waited and heard a scuffle - immediately upon making their presence known, after which they made a snap judgement and broke in. Once inside: "They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search."
Sadly, the ends justify the means. Not to say the drugs weren't planted or that the cops could be bad people, but this (to me at least) sounds perfectly reasonable.
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Then the constitution means nothing and we should stop pretending.
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No-knock warrants and warrant-less entries are dangerous for all involved and I can think of very few situations where the risk is worth it, no quantity of drugs is worth the risk of losing a child, elderly person, or police officer.
Remember it is the 1st and 2nd that makes all other the others possible.
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But if my door gets kicked in while I'm naked and half asleep I can't promise that everyone would survive that encounter.
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He survived two tours in Iraq, but a SWAT team filled him full of holes. What chance do you think you have?
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Consider this; You live in an apartment building. Police chase a drug dealer into your building, but temporarily lose him as he runs into your corridor and disappears into one of the apartments. The police arrive in the corridor and smell pot, because your neighbor directly across the hall happens to be smoking some at that moment. They can't tell which apartment the smell is coming from. They take a chance and knock on your door, yelling "Open up! Police!" This startles you and you accidentally knock something over. As you walk to the door to open it, it suddenly gets kicked in, hitting you right in the face, breaking your nose and a couple teeth. Police rush in, slam you to the ground, twist your arms behind your back, put a gun to your head and start screaming "WHERE IS HE???"
Later, you try to sue the police department for unlawfully breaking into your home, but the court rules that what they did was completely legal because they heard a noise and thought that the person inside was destroying evidence, which gave them the right to break down your door.
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This decision is going to make me rethink...
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R.I.P.
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Response to: Anonymous Coward on May 17th, 2011 @ 5:46pm
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Re: Response to: Anonymous Coward on May 17th, 2011 @ 5:46pm
I'm with you.. we must overthrow them before it's too late.. but only way we can do that is if we all come together
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Re:illegal entry
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Lol. You even write like a cop.
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They did catch the original suspect but he was in another apartment. The people who sued over having there house raided had nothing to do the original suspect.
"In the case brief it self, the officers stated that the movements inside the house where consistent with the sounds of the destruction of evidence. The sound of the bath tub running and the flush of the porcelain thrones you all sit on mocking this case can create it."
Maybe I missed that part here is what I see:
"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 drugrelated evidence was about to be destroyed."
So you bang on the door, than people move = drugs being destroyed? So if the cops bang on my door am I just suppose to lay on the floor with my hands behind my head until they kick the door in, or am I allowed to get up and put some pants on and open the door without getting a gun in my face and broken door frame? I mean how dare anyone move things inside an apartment, seriously put all your things were you want them with the door open so no one can be confused about what you're doing and always maintain a clear path to the door and be prepared to open it for police on a moments notice.
"they where merely attempting to safeguard the lives and the property of the public."
Hes a drug dealer not a murderer. I agree they don't know if he is arming himself, but if he is and they leave no one is getting hurt. If he is armed he only becomes a threat when the police engage him.
"The suspect did something wrong and the police caught him. Your paranoia of the cops is absolutely unjustified and flat our retarded."
They also kicked down the door of two citizens doing their private business in their private residence due to a smell in a hallway and movement upon having their door banged on. Luckily for the cops those people where doing drugs so no one cares if their rights were trampled, I wish it was a Kentucky state senator banging his mistress than this would have been a much better case.
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The police - did not see the suspect go into that apartment -
They only saw the suspect enter that apartment complex.
The door they knocked on could have been anyone's.
Suppose it was the door of a couple who were necking, that had gotten so intense they were mostly naked and just about to insert. The police knock on the door and start shouting "POLICE!" What Happens? Well I bet you'd hear some "bustling noises", not to mention screaming, coming from that apartment! So the police break the door down and see a screaming crying naked women running away and an enraged man coming towards them.... and the police already have their guns drawn, cocked and pointed......
result: 1 dead man ("Judge, We thought he was a serial killer/rapist, honest!" )
Please read more carefully.
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Re: tard
Kentucky upheld the constitution.. It was the Federal Supreme Court that trashed it.
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http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf
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No one seems to have pieced together that cops can have an ulterior motive beyond finding the bad guy. Not to long ago in the news, a couple of cops were caught discussing what could be taken in the line of property for sale by the city. Once a drug charge is involved, confiscation of property comes next, with the funds from sale being split between participating cop departments if more than one is involved. Otherwise it all goes to the home station.
This is begging for a reason to break in without warrant with a made up excuse. A dirty cop can always plant the evidence of drugs later.
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Lyrics getting strained?
and the Home of the Brave (enough to mutter under your breath when the authorities bend you over to take it). hmmmm the tune might need changing.
A shining example for democracy everywhere, bravo! *polite clap*. Next thing you know you'll be just as far down the road towards police state as the UK.....
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Hmmmm
Of course, why would we put ANY limitations on police, they are always soo lawful and correct in their actions.
As a matter of fact, last night while with friends the cops came and accused them of breaking into the house, despite us having a key. They then searched the house. Its a bunch of crap, my local law enforcement is known for it.
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Re: Hmmmm
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Re: Hmmmm
Well, if you happen to live in Indiana, what the cops did appears to be legal now.
http://www.nwitimes.com/news/local/govt-and-politics/article_ec169697-a19e-525f-a532-81b3df2 29697.html
INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.
In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.
"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said.
So if you don't open the door, they'll break it down and enter for whatever "just cause", and if you do open the door, they can come in, and anything they find will be admissible in court because the cops will say you "let them in" and didn't object.
Sounds like the perfect example of "Damned if you do, damned if you don't."
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Solution
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Just shows..
The police and the federal spooks know they can now get away with simply bashing into homes with swat teams and doing whatever they want.
Of course the federal spooks have quite a long history of ignoring constitutional protections, so it doesn't matter to them anyway.
In the United States, you are far far more likely to be shot by a police officer or a federal spook than any terrorist, especially if you are not white. The function of local police has changed form helping people to arresting criminals by whatever means possible.
Himmler would have been proud of the SCOTUS today.
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Re: Re: Re: Offbase
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The Sad Ending to the Flower Power Generation
As another example, TechDirt also posted RIAA Calls 4th Amendment Passe: Pushes For Warrantless Searches.
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So it seems people with larger homes may have more 4th amendment protections than those with small homes/apartments.
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Bang on door = silence?
The next reason for busting down the door will be "we knocked but didn't hear anthing so we assumed they were hiding from us"
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Supreme Court and the 4th amendment
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What Happened to Justice?
How could 8 supreme court justices be so blatantly contemptuous of the U.S. Constitution?
As a nation, we are seriously off course.
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This is not the complete story.
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ur face
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cops breaking 4th amendment
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dentist
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A victim in her own home under government housing
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Challenge It
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generating electricity by walking
wi vi technology
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Police unlawfully enter my house and harass me and my child
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our rights
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Re: our rights
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Otis Livingston must go to jail!!!!!!!!!!!
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