The Corner

Department of Pre-Crime, Cont’d

I don’t get it. First Indiana, now this from the Chicago Tribune:

The Supreme Court on Monday gave police more leeway to break into residences in search of illegal drugs.

The justices in an 8-1 decision said officers who loudly knock on a door and then hear sounds suggesting evidence is being destroyed may break down the door and enter without a search warrant.

Residents who “attempt to destroy evidence have only themselves to blame” when police burst in, said Justice Samuel A. Alito Jr.

Sorry, but I’m with Ruth Bader Ginsburg on this one:

In a lone dissent, Justice Ruth Bader Ginsburg said she feared the ruling in a Kentucky case will give police an easy way to ignore the 4th Amendment. “Police officers may not knock, listen and then break the door down,” she said, without violating the 4th Amendment.

After all, it’s not like the police ever make a mistake, or anything:

. . . in the Kentucky case, [the police] entered the wrong apartment, raising the issue of what is permissible in situations where police have reason to believe evidence is being destroyed.

That’s right — the guy who wound up in the can wasn’t even the guy they were looking for in the first place. Details, details: 

Alito said the police conduct in this case “was entirely lawful,” and they were justified in breaking down the door to prevent the destruction of the evidence.

“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen may do,” he wrote. A resident need not respond, he added. But the sounds of people moving and perhaps toilets being flushed could justify police entering without a warrant, he added.

Moral of this story: If you hear the cops at the door, quietly get off the john, and whatever you do, don’t flush. Read the whole account of the case, which ought to get your blood boiling. Here’s the kicker, from Ginsburg:

Ginsburg, however, said the court’s approach “arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases.” She said the police did not face a “genuine emergency” and should not have been allowed to enter the apartment without a warrant.

The mind boggles.

UPDATE: Over at the Volokh Conspiracy, Orin Kerr has some analysis that suggests maybe things aren’t that dire:

In a relatively narrow 8–1 opinion by Justice Alito, the Court today embraced the following test: Conduct that does not violate the Fourth Amendment or threaten to violate the Fourth Amendment is not considered part of police-created exigent circumstances. That is, the exigent circumstances determination can properly consider all the facts as long as the police didn’t violate the Fourth Amendment or threaten to violate the Fourth Amendment.

Maybe. But — as a proud non-lawyer — I’m still troubled. Here’s the Court’s own summation of the circumstances:

Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The Circuit Court denied respondent’s motion to suppress the evidence, holding that exigent circumstances—the need to prevent destruction of evidence—justified the warrantless entry. Respondent entered a conditional guilty plea, reserving his right to appeal the suppression ruling, and the Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed. The court assumed that exigent circumstances existed, but it nonetheless invalidated the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.  

Which leads them to this conclusion, among others:

The proper test follows from the principle that permits warrantless searches: warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Thus, a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. A similar approach has been taken in other cases involving warrantless searches. For example, officers may seize evidence in plain view if they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made, see Horton v. California, 496 U. S. 128, 136–140; and they may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs, see INS v. Delgado, 466 U. S. 210, 217, n. 5. Pp. 8–10. 

And hence to this:

Respondent contends that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable, but that approach is also flawed. The ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in Cite as: 563 U. S. ____ (2011) 3 Syllabus announcing their presence and the forcefulness of their knocks. A forceful knock may be necessary to alert the occupants that someone

is at the door, and unless officers identify themselves loudly enough, occupants may not know who is at their doorstep. Respondent’s test would make it extremely difficult for officers to know how loudly they may announce their presence or how forcefully they may knock without running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed. Pp. 14–15.2. Assuming that an exigency existed here, there is no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Pp. 16–19.

(a) Any question about whether an exigency existed here is better addressed by the Kentucky Supreme Court on remand. P. 17.  

(b) Assuming an exigency did exist, the officers’ conduct—banging on the door and announcing their presence—was entirely consistent with the Fourth Amendment. Respondent has pointed to no evidence supporting his argument that the officers made any sort of “demand” to enter the apartment, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to this Court’s attention, the state court may elect to address that matter on remand.

Finally, the record makes clear that the officers’ announcement that they were going to enter the apartment was made after the exigency arose. Pp. 17–19.

302 S. W. 3d 649, reversed and remanded.

So the ball’s back in Kentucky’s court it seems. Over to you lawyers.  

Michael Walsh — Mr. Walsh is the author of the novels Hostile Intent and Early Warning and, writing as frequent NRO contributor David Kahane, Rules for Radical Conservatives.


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