Yes, sometimes pigs fly. In re: Kentucky v. King, decided by the Supreme Court on Monday, I found Justice Alito’s majority opinion (8–1!) not only unconvincing but downright scary, whereas I thought Ruth Bader Ginsburg got it exactly right. From my New York Post column today:
“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless . . . search that may ensue.”
What planet is Alito living on? The whole point of the Bill of Rights is to restrict authority. The Founders, who suffered under the British system of “general warrants” and “writs of assistance” — i.e., fishing expeditions — wished to ensure that no American home could be searched without probable cause and a duly issued warrant specifying exactly what police are looking for.
The case has been remanded to Kentucky, to sort out whether the circumstances were truly “exigent.”
But Alito’s interpretation is an open invitation to abuse — as Justice Ruth Bader Ginsburg emphatically warned in her dissent:
“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. 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. I dissent from the court’s reduction of the Fourth Amendment’s force.”
Even worse is what’s going on in Indiana, where the top court recently ruled that citizens may not resist police intrusion into their homes — with or without a warrant — under any circumstances.
I’m currently reading Rick Brookhiser’s excellent book What Would the Founders Do? and would love to pose the question to him — what would they think about these diminutions of the Fourth Amendment?
Perhaps the time really has come to get serious about issuing a call for an Article 5 conclave.
Reply to this commentLinkReport AbuseCheck out what an Indiana Sheriff had to say about this:
"CROWN POINT, Ind. – According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011. When asked three separate times due to the astounding callousness as it relates to trampling the inherent natural rights of Americans, he emphatically indicated that he would use random house to house checks, adding he felt people will welcome random searches if it means capturing a criminal."
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No slippery-slope here. Nope. None at all.
(Mitch Daniels is toast, BTW - it's his judge that did this. No Nomination For You.)
Reply to this commentLinkReport AbusePolice have been allowed to enter a home without warrant or consent for quite some time through the use of a variety of exigent circumstances and I don't believe this one expands police authority as many believe. What's shocking is that Sotomayor and Kagan are on board with the majority.
Reply to this commentLinkReport AbuseFWIW, Orin Kerr has a great post up on King at Volokh. He thinks many are reading way too much into the decision, which was actually quite narrow.
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Reply to this commentLinkReport AbuseIf Mr. Walsh and others are correct in asserting that this very narrow decision is indeed "scary," they should have little trouble convincing local legislatures to enact laws prohibiting this offensive police practice.
Reply to this commentLinkReport AbuseTwo important points:
(1) Alito's decision is basically just a restatement of what the law has been for decades. Obviously, if the police hear a woman screaming for help, they may enter the premises without a warrant. Likewise, if they can see or hear good reason to believe evidence is being destroyed, they may enter without a warrant. "Exigent circumstances," by definition, mean that the balance of interests has tipped away from the more thorough safegaurds for privacy and toward immediate action. Reasonable minds can differ about where, exactly, the line ought to be drawn. But note that the Supreme Court isn't opining on that; they've left that to the lower court, to determine as a question of fact.
(2) Just because the Constitution permits the police to take action doesn't mean it's a good idea to let them. Put another way, it doesn't make much sense to try to use a written Constitution to define the metes and bounds of how police ought to behave. That is much better controlled through the political process. And bear in mind that the Founding Fathers believed (I think correctly) that local government is much less of a threat to individual liberty than the federal government, because it is inherently more accountable. The very idea that we look to the Constitution to protect us from local police would have looked perplexing or comical to them.
Reply to this commentLinkReport AbuseGinsburg complains, "In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down"
But didn't police officers already have this right? If police officers, for example, knock on a door and hear someone screaming "HELP!", they already had the ability to act upon that exigency and "break the door down." So the appropriate question that you've raised is not whether, as Ginsburg framed it, the police have the right to knock, listen, and then break down the door. They do--at least sometimes. The question is what circumstances--what noises, for example--are sufficiently exigent to permit warrantless entry. And that question, as you noted, was not addressed by the majority opinion at all. It was remanded to the lower court.
So while I agree with the general sentiment Mr. Walsh has expressed, the King decision appears to be the wrong target of his criticism. This decision dealt with the separate question of whether the police created the exigency (the alleged destruction of evidence) by threatening to violate the Fourth Amendment.
Moreover, I think that Mr. Walsh has misconstrued Alito's statement. Alito, in my view, was not saying that the police should have even more expansive power to enter a home without a warrant. Rather, his point was that because the police generally do not have such a right, the people inside that home ought to be willing to stand their constitutional ground--perhaps even by answering the door and telling the police to buzz off. Had they done so, the police would not have had grounds to enter. If anything, I think Alito's point was to encourage people to take claim of their constitutional rights, and not to instead cower inside and try and destroy evidence. My interpreation might be charitable, but I think Mr. Walsh's is unduly harsh.
Reply to this commentLinkReport AbuseSorry, but the answer to this problem is not to amend the Constitution, but rather to FOLLOW IT!
The Court's decision is as narrow or as broad as a local police agency wants it to be, as evidenced by the quoted passage from the Indiana sheriff. If CLEO's read it too broadly, it'll be 5-10 years before you hear any of the judges in the majority say so (if every one of them is still even on the Court at such time).
What is so NARROW about the ruling? They ruled that the police had the right to enter a home without a warrant due to the sound of a toilet flush on the mistaken belief that the home is where their suspect was.
There's nothing narrow about that at all. And this will be used as a curmudgeon by police officers everywhere.
In cases involving autos and drugs, there IS NO MORE 4th AMENDMENT.
Don't think that police are any different than any other bureaucrat, in terms of desiring to take every possible opportunity to expand their power. In that respect, they are often far worse.
And expanded police power comes directly at the expense of the natural and Constitutional rights of our citizens, and is not merely a nuisance or an expense as with many government employees' jobs. If they could make it so that they never needed a a warrant, they would gladly do so.
To a police officer, just like with most socialists, the Constitution is nothing but a big fat inconvenience and a hindrance. They'd just as soon see it repealed entirely.
Giving them this expansive benefit of doubt is really UNWARRANTED! I cannot believe that only Ginsburg dissented. How utterly sad.
And lest the trope about safety get bandied about, by way of this ruling, NO ONE is made any safer. In fact just the opposite, as unchecked police power is utterly dangerous.
Reply to this commentLinkReport AbuseTHE POLICE WERE AT THE WRONG DOOR!
Whatever was being flushed down the toilet at that wrong residence WAS NOT EVIDENCE! There was not even any adversarial police procedure under way.
The items in your home are not EVIDENCE! They are yours, even the illegal ones. Illegal items in your home don't become potential evidence until the appropriate process commences to hold you accountable for them.
Next time Scalia takes a dump, I propose the police crash his door down.
"We heard evidence of an environmental catastrophe!"
Reply to this commentLinkReport AbuseThere is no "fourth amendment warrant requirement." The fourth amendment protects us against unreasonable searches, not warrantless searches. The warrant was meant to be a CYA that mutated, in public perception, into the sole deciding factor of whether a search was reasonable.
The idea of "probable cause" has been with us since the beginning. It remains to be seen whether or not the police abused that doctrine in this particular case, but there's nothing new here.
Reply to this commentLinkReport AbuseIf flushing a toilet is now "probable cause" to conduct a warrant-less search then we might as well flush the Bill of Rights now.
Reply to this commentLinkReport AbuseI'm not a lawyer, but I know a thing or two about the police. Despite madisonian's clever snark, he's exactly right about what is and isn't evidence. And I can't tell you how many times that I- Joe Citizen- have bridled at the kind of no-probable-cause intrusions into my life under the guise of "safety." Sickening.
Put me on record agreeing with Mr. Walsh.
Reply to this commentLinkReport Abuse@ Madisonian: You write, "They ruled that the police had the right to enter a home without a warrant due to the sound of a toilet flush on the mistaken belief that the home is where their suspect was."
No, the Supreme Court did not. The Supreme Court did not rule on that question at all. Please read the actual majority opinion. It states, "Any question about whether an exigency existed here is better addressed by the Kentucky Supreme Court on remand."
Reply to this commentLinkReport AbuseAgain, this is what we libertarians dislike about conservatives. They tend to love big government when it comes to police powers. A policeman's life is valued more than an ordinary citizen's. That Kagan and Sotomayor was with the majority isn't that surprising since progressives realize police are important for their utopia to function.
Reply to this commentLinkReport AbuseAs far as that Indiana State Supreme Court ruling, yeah, that's not a slippery slope, it's a diving board.
Unfortunately there are many so called conservatives who are all to willing to shred the constitution when it gets in the way of their favorite form of social engineering. In this case, the War on Some Drugs. (Or should I say, The War on any Drugs that I Don't Use.)
Reply to this commentLinkReport AbuseThe government is a growing monstrosity. The Republican establishment and the Democrat Party both lean toward fascism.
Reply to this commentLinkReport AbuseOk, I took the time to actually read both the opinion and Ginsberg's dissent, and I see now that the issue isn't quite what I thought it was.
The problem is that there were a bunch of legal tests floating around for whether exigent circumstances justified a warrantless search. These tests juggled a number of competing interests, including providing police with clear standards, and, importantly, not giving police an easy way to game the system to avoid having to get a warrant.
As you might expect, given that Ginsberg couldn't get a single justice to agree with her, the test she wanted to choose is hopelessly flawed. Indeed, the majority opinion explicitly addresses its flaws, and offers at least seven good reasons why it's a bad standard.
On the other hand, the standard the majority chose seems pretty flawed to me, too. However, the flaws err on the side of permitting police action. That's the right result. Otherwise, you'll end up with the same problem we had back in the 60s and 70s, with the Supreme Court having to take a whole bunch of fact-sensitive cases on the issue, so as to teach everyone what the standard really means in practice. This is Bad, for at least two reasons. One, it's not good for courts to take on the job of micromanaging permissible police conflict. (And I thought that was an issue near and dear to conservatives' hearts.) And two, it undermines the authority of the Constitution itself, because it's trying to use it for a job to which it's poorly suited.
In short, like I said earlier, the Constitution isn't the right tool for the job of controlling local police conduct. That should be done through the political process.
Reply to this commentLinkReport AbuseJustice Alito would have our rights secured entirely by the operations of the government, and its various branches, and political accountability of those branches. Violations of those rights would be checked first by the review of superior officers, then review by and contest with competing branches, then by public expectations of those various operations.
Which mighty be dandy if we could be sure that the contest of every violation would serve some institutional and political interest. But the whole mechanism fails if violated are too unpopular and isolated to motivate those checks, or if the violations escape effective notice in the great mass of government activity.
That's why the Constitution provides checks on the whole mass of the government, in all its divided powers, upon citizens. Citizens can possess arms and say what they like and come and go as these please without anyone's say-so. And if that happens to be inconvenient, or even dangerous, to some official who has gone too far, well, that's too bad.
The Constitution doesn't give us rights in escrow, to be parceled out by a trustee court. It recognizes rights established in reason, and insists the government respect them.
Reply to this commentLinkReport AbuseWhenever someone rants on about the civil rights busting Patriot Act, I ask him where were you when the government declared war on organized crime and, in particular, drugs because the civil rights you claim to hold so dear have already been abrogated. Never have our Constitutionally guaranteed rights taken such a beating as with drug laws and their enforcement. (Silver lining--my opinions on the matter were the impetus for my removal from two drug case juries.) Obviously Justice Alito needs a refresher course in the Forth Amendment if not the entire Bill of Rights.
Reply to this commentLinkReport Abuse@MarkW: I think you're very much mistaken that the majority opinion is rooted in the policy goal of fighting the war on drugs, or is unprincipled in any other way. And I'd be happy to engage you in a colloquy on the matter. But since you didn't offer any support for your position, I don't have any place to begin arguing with you.
So let me begin by pointing out what I believe to be the nub of the issue, in concrete terms. Leaving aside the flaws in the various proposed standards, it seems to me that the unstated disagreement is the question of whether it's ok for police to intrude on a citizen's privacy by knocking loudly and yelling "It's the police"--and to do so to random, innocent citizens. On the one hand, obviously, this would be a major disturbance, and even quite upsetting, to many law abiding citizens. And so strong libertarians would object to police going around doing this as a tactic, hoping to rattle random drug users into panicking.
The majority, however, are content to conclude that the Constitution permits this behavior. Their rhetorical argument is that non-police citizens can lawfully intrude on your peace and privacy to this extent, so it's ok for the police to do so, too. I believe this argument is wrong, for a couple of reasons. But if you analyze their position more rigorously, the problems mostly go away when you bear in mind the scope of actual holding. The holding doesn't say it's ok for police to act this way--it simply says that the CONSTITUTION doesn't have anything to say about this. In my other posts I've said why I think that's an ok result in practical terms. In theoretical terms, I think it's sound because knocking on your door and yelling just isn't a "search" or "seizure."
In fact, very much to the contrary to your allegation that this is somehow a conservative sin akin to liberals creatively interpretting the Constitution to advance their preferred policy, this decision seems to me to be very consistent with the conservative philosophy of judicial restraint.
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