TheAgitator.com
SCOTUS: Flushing your toilet negates your 4th Amendment rights
Monday, May 16th, 2011In an 8-1 decision, the U.S. Supreme Court ruled that cops do not need a search warrant to enter a home if, after banging on the door, they hear sounds that suggest evidence is being destroyed.
Residents who “attempt to destroy evidence have only themselves to blame” when police burst in, said Justice Samuel A. Alito Jr.
Here is my translation: “Cops who wish enter a home without a warrant may now do so by claiming after the fact that they heard the sound of evidence being destroyed”.
Because, there is no such thing as the sound of evidence being destroyed. It’s not like a gun shot or a scream or loud music.
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.
Is anyone still under the delusion that the government is there to protect your freedom?
RIP Fourth Amendment.
Thanks to Agitator reader Buddy Hinton for the link.
[Posted by Dave Krueger]
I have always wanted a hat tip here at the Adge — thanks, Mr. Krueger.
Actually after reading the decision, it is not so bad. The decision explicitly said that it does not decide that the “noises” in this case were sufficiently indicative of evidence being destroyed to give rise to exigent circumstances. In other words, while there was probable cause that there was contraband in the aprtment,* there may or may not have been sufficient cause (probable cause is the standard hopefully) that this evidence was being destroyed. The case was remanded to the Kentucky Supreme Court to decide how certain police have to be that evidence is being destroyed and also the issue of whether the “noises” in this case met that standard. As a matter of fact, the ruling in this case would seem to make it likely that the Kentucky Supremem Court will set a high standard (again, hopefully probable cause) that evidence is being destroyed and also decide that “noises” fall far short of the proper standard.
Really, the issue of whether “noises” are an exigent circumstances is more important than the “police-created exigency” issue that was decided in this case.
Footnote from previous post:
* I actually think that smell of MJ is not probable cause because policemen cannot pinpoint the location of with precision, but that is probably a losing argument. Still, I have smelled marijuana and been wrong about it being marijuana. I have smelled marijuana and not been sure where it was coming from. One day I smelled marijuana inside my house (of course there was none there) and went outside to see that the whole street smelled that way — I could not pinpoint where it was coming from. These problems are even worse in close-quarters apartment complexes. But again, try explaining that to a judge.
The police also need to have some vague reason to think that someone they are trying to apprehend might be in the apartment. Not that that makes this a good decision in any way, but it does mean that we might have another year or two before the 4th amendment is completely eviscerated.
@Dave Kreuger: I am curious. Does anyone actually read the cases before posting about them here? The Court did not actually make any finding in this case, instead remanding it to the Kentucky courts for further fact-finding after articulating a rule that limits the exigent circumstances exception to the warrant requirement. The opinion is here: http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf
It would have been nice for the Court to draw a different line for when the police improperly create exigent circumstances, but we really won’t know the contours of this rule for quite a while yet.
3: This is a non-rhetorical question: do the police really need a reason to think that someone they are trying to apprehend is in the apartment, based on this ruling? I happened to read the oral arguments recently, and I don’t remember that as being an issue–the police have probable cause as soon as they smell marijuana.
4: Way to overgeneralize. Also, I don’t think that anything Mr. Krueger said is any less valid given the actual ruling. Whether the Ky Supreme Court rules that the noises in this situation created exigency or not, the police seem to now have a dangerously convenient way to not have to get warrants.
What he wrote is simply wrong, actually. Exigent circumstances arose long before this case. The toilet flushing example is something that has LONG been considered an exigent circumstance (ignore how you feel about whether it SHOULD be, or even whether exigent circumstances should be an exception to the warrant requirement, or what exigent circumstances should be, etc.). The only issue presented is whether a police-created exigent circumstance can be used to satisfy the exception, and the Court said that it could NOT if the exigent circumstance were caused by a violation of or threatened violation of the Fourth Amendment. Given how it could have been decided (if it’s a valid exigent circumstance, we don’t care how it came to happen), it’s actually a pretty decent result.
John Jenkins, I generally agree with where you are coming from. However, toilet flushing is not generally considered an exigent circumstance.
The law is unclear about what standard of “cause” (I would say standard of probability) is needed for exigent circumstances. The Ninth Circuit says probable cause. Other lower court cases seem to suggest it is less. In the leading Supreme Court case it was because the policemen saw through a window a rather hard punch to a teenager’s face, which would amount to probable cause, but the Court did not say that that standard was required.
This is a big issue, following police boards, I know that police think all kinds of things are exigent circumstances which probably aren’t. An open door, a scream, a loud argument, etc. These are the kinds of things that get INNOCENT people’s houses broken into (and then get evidence planted inside if police don’t like what happens inside the house). While I am kind of glad Alito reserved the issue for the Kentucky Supreme Court in this case, they really should have set a standard by now. Hopefully they will hold off setting a standard until Ron Paul has had a chance to appoint a couple Justices, tho. They really should have set a standard in the Brigham City case in 2006. That said, it was fair of Alito to punt in this case because the case wasn’t procedurally prepared to hear the issue.
The best thing about this decision is that, as Alito points out in the Court’s opinion, is that this decision gives police an incentive to knock and announce clearly. On the other hand, he also says that if men in plainclothes standing on your front porch say they are policemen, then regcits hould beieve them.
Fair enough. But what this ruling means is that if the police determine that they have probable cause, and they knock on a door, if they hear the sound of a toilet flushing (I can’t imagine the Ky SC won’t include that as an exigency-creating sound), they can enter without a warrant. What THAT means is that *every single time* knocking on the door is less of a hassle than getting a warrant, the police will knock on the door and hope for some suspicious sounds. That’s no victory for fans of civil liberties. Here’s some bad things about this ruling:
-if the police don’t have probable cause, but mistakenly think they do, and interpret post-knock sounds as being the destruction of evidence, they can break down doors and storm in; who cares about that whole first asking an independent judiciary if they really have probable cause thing
-the police now have added incentive to invent probable cause where all there really is is a hunch
-there are plenty of dishonest cops, even if the vast majority are honest; these cops can now lie about/stretch what they heard and have a good chance of getting away with it
-more innocent people will have their doors knocked down
@Buddy: On flushing, see People v. Clark 262 Cal.App.2d 471, 475 (1968) and People v. Alaniz 182 Cal.App.3d 903, 906 (1986). It’s actually one of the classic law school hypotheticals for exigent circumstances (and tired trope of TV cop shows, don’t forget).
I don’t think I understand your issue with the standard of proof for exigent circumstances. To avoid the warrant requirement, the police must have both probable cause that a crime has been committed (or is being committed) and exigent circumstances (or some other exception to the warrant requirement) must exist. See U.S. v. Place, 462 U. S. 696, 721 (1983).
I assume you’re referring to Brigham City, Utah v. Stuart, as the leading case on exigent circumstances, but the Court did articulate the “standard of proof” for exigent circumstances in that case (such as it is). Noting the disagreement among the states and federal circuits, the Court determined that the officers’ conduct had an “objectively reasonable basis,” and that was sufficient. As long as there are specific, articulable facts that support the finding of exigent circumstances, courts will probably give credit to it.
In an ideal world, the cops would respect and pay very close attention to the rules, using knife-like precision in their application. But, in the real world the cops are going to lie. If there is any doubt at all, they will employ the strategy of stretching and mutilating the truth to bolster their case. This ruling makes that easier and it is widely being reported as such. But, don’t take my word for it. Take Ginsburg’s word for it.
As for my obituary for the 4th Amendment, that was wrong because the 4th Amendment has already been dead for a long time. If the cops want to search your house/car/pockets/etc, they’re going to search your house/car/pockets. Sure, there’s a chance that they might screw up when they fabricate their excuse, but that will be an exception, not the rule. And when the conviction is over-turned, we will all feel like the courts are doing their job, but really, they’re just teaching the cops what they can or can’t get away with.
It won’t be the courts that protect us from the cops. It will be video cameras and public outrage that protect us from them (and only until they find a way of eliminating that threat).
So, what exactly was it about the state of the law before this case that made it less likely that the police would lie to preserve an arrest, search or conviction?
…
Right, that’s what I thought. So marking this as some kind of dark day in the annals of Fourth Amendment law means that you are overstating the significance of the case.
It would seem that the problem is police lying, rather than a very narrow doctrinal decision that resulted in a REMAND for fact finding.
11.
Wait, I still don’t get what isn’t important about this case. Just because it’s not the worst ruling that could have occurred doesn’t mean it doesn’t have significant negative consequences for a robust 4th amendment. Do you not think that this will significantly encourage police to knock with the hope of hearing exigency-creating sounds every single time they have probable cause, regardless of the ruling in Kentucky? Do you not think that would be rife for mistakes and abuse? Do you not think this ruling will further weaken the warrant system? I mean, I guess your answer is no for all three of those questions, but I’m still not sure why.
FLUSHING TOILETS:
1. Alaniz is not relevant. It dealt with entry of a residence of a person who had previously been caught in the act of actually flushing drugs down a toilet, and not a person who was flushing prior to the exigent circ entry.
2. In Clark, the toilet flushed 5 or 6 times. This makes a difference. Even I don’t flush 5 or 6 times and I am a hearty eater.
3. I thought you would cite US v. Carr. This is the one courts usually cite (incorrectly and in dicta) for the common wisdom that flushing the toilet is exigent circumstances. However, in Carr they didn’t hear the flushing toilet until after exigent circumstances entry was made.
4. Some cases to seem to say that a single toilet flush is enough, but not all, and not enough to say the law is anywhere near settled on this.
MORE IMPORTANT STUFF:
Probable cause has a factual condition requirement and a probability requirement. The factual condition is that there exists an ongoing crime or viable evidence. The probability requirement is that the facts are sufficient to reasonably lead one to believe that the condition (crime or evidence) exists.
Courts haven’t yet separated out the condition and the requisite probability for exigent circumstances. We know what the condition is (fleeing criminal or destruction of evidence). What courts, for the most part and in particular the Supreme Court, have assiduously failed to do is to say how probable it is that the condition exists. If someone is fleeing and there is a 1% chance that she did the crime is that good enough? If a policeman hears a garbage disposal being operated in a neighborhood where shoplifting has taken place in the past year then there is a possibility that the shoplifted merchandise is being destroyed (that is, destruction of evidence), but is that possibility good enough without more supporting evidence? We don’t know the answers to these questions. The Ninth Circuit argues, persuasively I think, that there must be a probable cause level of probability that the exigent circumstances conditions truly exist, but other courts disagree, and most courts are sadly in denial about the importance of ascribing a probability level at all. Mostly, courts get confused between the idea that the condition that gives rise to exigent circumstances is a totally separate thing from the required level of probability that the condition exists.
Just re-read Brigham City:
Maybe you are correct that Brigham City sets up an “objectively reasonable basis to believe” that the exigent circumstances exist. But then that is the probable cause standard of probability and should have been called out as such.
For my own part, I don’t think that one can reasonably “believe” that something is true unless it is at least “more likely true than not” based on the person’s level and nature of knowledge. It is not reasonable to “believe” that a condition that is unlikely (when viewed objectively thru the prism of limited knowledge) does, in fact, exist. It might be reasonable to suspect, but not to believe.
The War on Liberty errr…. I mean Drugs has resulted in a debate in which the main point of contention is how many flushes does it take to establish probable cause. What a crappy commentary on the state of our freedoms.
Buddy, start citing some cases please, so I can read them. Also, why do you feel that Brigham City v. Stuart, 547 U.S. 398 (2006), isn’t controlling on what constitutes exigent circumstances?
The test for probable cause comes from Illinois v. Gates, 462 U.S. 213 (1983) and is based on the “totality of the circumstances” under review. If you think the test for probable cause is in any way clear, well you’re a better lawyer than I am and a better lawyer than any that I’ve known (I think the lack of clarity is intentional).
Do you have access to Westlaw? Search the all cases database for “(flush! /s toilet) & exigent” and read to your heart’s content.
Which U.S. v. Carr are you referring to? What Ninth Circuit case are you citing? Does it post-date Stuart?
@Alex: I don’t think this case determined anything because it was remanded for fact-finding. We know a set of hypothetical facts (police show up, knock on the door, believe that the defendant is destroying evidence, and that gives rise to exigent circumstances) that the court will say is not a violation of the Fourth Amendment. I don’t think if that exact set of facts had occurred yesterday, that the decision would be any different, and I think that’s the POINT of the opinion. What we don’t know is whether those are the actual facts of this case (e.g., there is some indication that the officers demanded entry. Making that demand would change the analysis significantly, since there is no requirement that you answer the door if the police knock).
And Buddy, “more likely than not” was explicitly rejected as the test for probable cause in Gates.
While the presumption of innocence is not formally codified in the Constitution, I think it is properly understood to be a fundamental tenet of the same. Given this basis for legal action, I think it not at all improper that we should apply it in the context of the establishment of Probable Cause. Thus, Probable Cause, whatever existing case law mandates for it, should require not only a Reasonably Articulable Suspicion (a distinct standard, and one that is lesser to Probable Cause, but is routinely conflated with it in practice), but *suspicion beyond reasonable doubt*. That is, police should not be able to violate rights simply because it is reasonably supposable that a crime is in commission or imminent, but because it is *not* reasonable that a crime is *not* in commission or imminent. I realize that this is not the standard that is normative today in the United States, but I think that it is the standard that follows logically from the fundamental principles that undergird the Constitution. That the Supreme Court of the United States has not found in favor of this standard cannot be surprising, due to the irrational, foolish, and dangerous principle of stare decisis, which, famously, can turn a few grains of sand into a “heap”. Any reasonable reading of the Constitution and the writings of the authors of the same must, I think, conclude that the judicial precedents we have today are entirely out of line with original intent. Unfortunately, we are no more likely to abandon existing case law in favor of original intent than we are to deny police authority to violate the Fourth Amendment on a hunch.
http://www.google.com/search?sourceid=chrome&ie=UTF-8&q=us+v.+carr+toilet+flush
and yes, earlier tonight I read all the federal flushing toilet cases from the last few years. That is how I knew about Carr. The ironclad rule you think exists about flushing toilets does not. It does seem to exist in Tennessee and Oklahoma, but in other places not so much.
As far as Gates and probable cause go, the key to understanding is not “totality of the circumstances,” but rather what it is that the totality of the circumstances indicate. The must indicate a reason (presumably an objectively reasonable reason) to “believe.”
The question for both probable cause probability determinations and exigent circumstances probability determinations therefore morphs into the following question:
at what level of probability does it become reasonable to “believe” that a condition exists, as opposed to merely suspecting the condition does exist?
And Buddy, “more likely than not” was explicitly rejected as the test for probable cause in Gates.
What Gates did not explain is how this could be.
Lets say a policeman swears out the following warrant:
I know that the suspect ran into either door #1 or door #2, but I have no idea which as between these two. On this basis I “believe” that he ran into door #1 (just like Gates requires) and I submit that this belief is “reasonable” (just like Gates requires) and want my warrant for unit #1.
Should a magistrate grant the warrant?
@Matthew Peck: The presumption of innocence is part of the common law the U.S. adopted at the founding.
Reasonable suspicion isn’t in the Constitution either. It comes from Terry v. Ohio, 392 U.S. 1 (1968), so I am not sure when you are looking at original meaning, a case and standard from 1968 gets you very far.
Beyond a reasonable doubt is also not in the constitution (we borrowed that from the common law as well), see In re Winship, 397 U.S. 358 (1970) (also, good luck defining reasonable doubt).
Given that, how can your proposed standard follow from the Constitution? Given that the Constitution DOES actually include the words “probable cause,” why should we substitute your standard for that clear one but not beyond a reasonable doubt, why should we impose the latter on the former?
Also, the warrant requirement is not in the Constitution (Read the Fourth Amendment carefully). Under the Constitution, searches must be reasonable, and warrants shall not issue except on probable cause. It so happens, that courts have held that searches pursuant to valid warrants are presumptively reasonable, but that’s not in the Constitution either.
Given that both “Probable Cause” was not the standard for a conviction and “Beyond a Reasonable Doubt” is how we now refer to that standard, why are we to presume that the drafters meant something other than what they wrote?
Doesn’t it strike you as a little odd to require the same level of proof to investigate a crime or arrest someone for it as it does to convict someone of it? Why would we need the Eighth Amendment and bail if we had to know beyond a reasonable doubt that someone committed a crime before arrest? Wouldn’t that be redundant?
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
Therefore we can a ten year Canadian chimpanzee to be President and that would be Constitutional./jenkins_logic
Some things in the Constition are implied rather than stated. The warrant requirement of 4A is one of these things. The Warrant clause would be a nullity if warrants were not generally required. This is how we know that the Constitution generally requires them.
Buddy, in that case there are no objective facts pointing to one over the other and the magistrate would probably not issue the warrant for A. However, a smart officer would submit a PC affidavit that says: “I know he ran into A or B and I would like to search both for him,” which the magistrate would grant (I’ve read far worse PC affidavits than that).
I am not sure what else we have to discuss. I’ve asked for your citations and you haven’t provided them (I’m not sure the link to the 10th Circuit case is apposite, since the flushing came after the officer had already entered the hotel room, but thanks for it). I believe you have misstated the law on probable cause and I think you’ve misstated the law on exigent circumstances, but you clearly disagree. At this point, I’ll let you get in the last word if you want it and call it a day.
Buddy, what do you think exigent circumstances are? What about the other exceptions to the warrant requirement? They are all questions of whether the search was reasonable, when there isn’t a warrant (see, e.g., regulatory inspections). Reasonable searches are permissible, and courts have held that searches without a warrant are per se unreasonable unless an exception applies. I’m totally comfortable with that, but some people in this thread might not be. Now, if you think your reductio argument actually captures what I said, then I think you’re wrong, but you are free to continue thinking it.
I guess the dickbags in Indiana were just a few days ahead of the curve, here.
Buddy, in that case there are no objective facts pointing to one over the other and the magistrate would probably not issue the warrant for A. However, a smart officer would submit a PC affidavit that says: “I know he ran into A or B and I would like to search both for him,” which the magistrate would grant (I’ve read far worse PC affidavits than that).
I don’t doubt this happens but it is absurd. It is absurd to “believe” anything that you are not at least >50% sure about. You may not always be able to quantify your belief as a percentage, but if you “believe” in something that is more unlikely, than likely, based upon what you do know, then your “belief” simply cannot be said to be “reasonable.” To the extent Gates implies otherwise, Gates is a nonsense decision.
@John Jenkins – We’re certainly in agreement that many terms, particularly those in discussion here, that are freely bandied about in court today are based not on Constitutional dictate, but on case law. Indeed, many of them originate from such.
My point is that original intent must be determined to conform to the actual words of the Constitution, but must, necessarily, be understood in the context of the body of writings of the authors of the Constitution. There is ample testimony, in written form, to the intent of the authors of the Constitution when it comes to Probable Cause and the presumption of innocence. Much of it is borne of English Common Law, from which this nation’s practice of law has departed. I further argue that these principles which I claim to have undergirded the Constitution of the United States necessarily argue in favor of a principle of the presumption of innocence, not merely in court, but in the practice of law enforcement. I believe that police must not engage in activity which cannot reasonably be justified post facto in court, rather than the current standard which suggests that police can do whatever *might* be justified in court.
I am full aware that the modern practice of law that you practice adheres quite stringently to the principle of stare decisis. I am lamenting that this principle takes precedence, today, over the principle of adherence to original intent, a situation which I derogate. I believe that original intent should take priority, to exclusion, over the principle of stare decisis. I recognize that this is not the case in the United States today, and am forlorn that such is reality. My argument, specifically here, advocates a principle which I recognize is not in practice, but which I believe was intended by the authors of the Constitution. Disagree with that as you please.
Are any of you people smokers? I mean ‘cigarettes’- yes, those little pieces of paper with tobacco stuffed within them.
Have any of you ever smoked pot, or know people who do, or been at parties where people do?
Anyone who smokes a cigarette has probably had a smoke or two- more likely more- that has had some ‘weed’ contained in the tobacco.
So any JBT who claims they smelled pot while standing outside a door is a damned liar. They may’ve smelled something similar to pot, but it was probably just someone having a smoke with a flake or two of pot rolled in at the factory. And if it was pot, so what? Will we allow the gov’t thugs to B&E because someone is enjoying themselves in their living room? Or in their bedroom?
You people trying to claim legality for violating the Constitution need to wake up and smell the coffee.
The Fourth Amendment means what it says, as do the First and the Second. Any excuses made to broach either is just that- Bullshit.
Shy III
One more comment: “Exigent circumstances”. What kind of bullshit is that if not another attack on the Fourth Amendment? It’s been de-rigour for so long we’ve begun to swallow the dotgovcum that ‘it’s ok since they had ‘exigetnt circumstances’.”
Oh, well- nothing to see here, Sheeple- go abck to sleep.
Shy III
By the way, there is a fairly simple way out of this connundrum that the Supreme Court (and all the other courts) missed. What the Court should have done will now be explained:
1. Give a 4A civil remedy against destruction-of-evidence, exigent circ warrantless entry when it turns out there is no evidence* in the residence. This civil remedy should be based on 4A itself (that is, no qualified immunity). That is, if police skip the warrant requirement, and they are wrong about evidence being in the unit, then they need to be strictly liable for all damages to the innocent.
2. abolish the Exclusionary Rule a a remedy against exigent circumstances, destruction of evidence cases where the circumstances were not really exigent.
3. This way, the only thing that police will consider in considering whether and how to break in without a warrant is whether there is really evidence in there or not. It should not matter whether the intentions of police are good bad or indifferent. they should merely pay, and pay steeply, in cases where they turn out to be wrong. We no longer would have to worry about whether the police truly thought evidence was being destroyed or not (this is important because policemen lie about that), but, rather, the police are simply financially incentivized to be correct, and the burden of being incorrect should fall on them, regardless of how pure (or otherwise) their hearts are.
Footnote:
* The evidence of the crime should be serious enough to be considered a “serious crime” under the Welsh. If a joint is not a misdemeanor, and that is all there is, the residents still get paid.
What is the “sound” of Americans being destroyed (aka: Genocide)?
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