TheAgitator.com
Supreme Court grants cops power to follow their noses, ears without warrant (a Farewell Post)
Monday, May 16th, 2011[UPDATE: I see that Dave Krueger wrote about this same issue just moments before I hit "publish." Please enjoy a second helping of 4th Amendment absurdity.]
Much thanks to Radley for the opportunity to blog here at the Agitator over the past several days, and to the Agitator community for all the lively and thoughtful discussion in the comments section. I was apprehensive at first to start blogging here, since criminal justice is definitely not my beat, but I suppose Radley knew that when he asked me to guest-blog, and he must have had his reasons for wanting to expose his readers to my style of femmi-libertarian thought. I thank those of you who took time to reach out through my blog, twitter, or email to express support or encouragement. I had fun, I hope you all did too.
Now then, onto business: It seems that police do not need a warrant to kick in a door if they smell marijuana and suspect the occupants are destroying evidence. The Supreme Court ruled 8-1 that as long as cops knock loudly, announce themselves, and then hear the sound of evidence being destroyed, it’s totes gravy for them to kick in the door and enter.
Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.
In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.
“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.”
Justice Alito asserted that this decision only concerns the suppression of evidence when the police themselves create exigent circumstances. According to the Times, Alito wrote that the police merely knocking on a door and announcing themselves would not create a circumstance that would pressure an occupant to destroy evidence. However, police knocking on the door and threatening to enter without a warrant (or in an otherwise unlawful manner) would. But then, doesn’t this decision essentially grant police the power to do exactly that? Knock, announce themselves, hear literally anything that could be construed as “destroying evidence,” and then enter without a warrant and search for evidence of illegal activity? I’m no legal scholar, so if there’s a logical explanation for such Kafkaesque legal reasoning, I’m all ears.
In any case, this decision leaves a lot of discretion up to police to judge which actions sound like “destroying evidence” and which do not. Does flushing the toilet count? What if the resident had actually had Chipotle for dinner? Isn’t just continuing to smoke or consume marijuana technically “destroying evidence?” Does this allow for cops to announce their presence, wait fifteen seconds, claim they can still smell marijuana, and then break down the door?
[Libby]
I’ll ask the same question of you I did of Dave Kreuger. Did you read the case before you posted this? Destruction of evidence has long been an exigent circumstance that gives rise to an exception to the warrant requirement (irrespective of how one feels about that exception, it’s not new to this case). The issue in this case was whether police could rely on exigent circumstances that they, themselves created. The Court said that they could not if they violated the Fourth Amendment or threatened to and that caused the exigent circumstances to arise. That’s what this case stands for. That’s all this case stands for. The case was remanded for further proceedings to apply that rule. That’s all that happened here.
And so, out Libby the chauvanistic bigot skates, without ever having to address any of the criticisms of feminism in general, let alone her own bigoted, chauvanistic behavior in particular.
Well, I suddenly feel less harsh!
I recall this case from before. I thought it sucked then, I think it sucks now.
“Exigent Circumstance” simply CANNOT be a reinterpretation of otherwise common events. Exigent Circumstance must be something like a person screaming, a gunshot… shit like that.
The problem with this case is the application of the Exigent Circumstance in drug cases. The core of the case is that said Exigent Circumstance was the result of the cops’ own actions… I.E. They knocked… they heard a common event…
The core of the case isn’t my problem. My problem is the vague interpretation of what constitutes an “Exigent Circumstance” in the context of bashing in the door and rushing in.
Let’s say… for example… they knock, yell “Yo Adrian! It’s da police!” and then hear a woman yell “Help me!!!” Well! There you go! Actual Exigent Circumstance, that was, in fact, created by the Police’s actions. Exigent Circumstance OF AN ACTUAL VIOLENT FELONY.
Because of cases like this, the intent of Exigent Circumstance means nothing.
This decision does nothing but move us closer to a Police State.
When I head that there was 1 in dissent, I was sure it was Justice Thomas, as the most libertarian judge on the court. But it wasn’t to be; thinking about it now, Justice Thomas is libertarian regarding many parts of the Constitution, but I don’t think the 4th Amendment is one of them.
This is also one of the few times I can think of that Justice Ginsberg got it right.
If a toilet flushes in a home, and a cop isn’t around to hear it, does it make an exigent circumstance?
What is the sound of one hand obstructing?
This illustrates the law’s dirtiest, and best-kept, secret: procedural protections are bullsh!t. All of them. the warrant requirement is bullsh!t. The jury trial is bullsh!t. The right to counsel is bullsh!t. Grand jury-bullsh!t; public hearings-bullsh!t. Ban on hearsay-bullsh!t.
Do I make myself clear?
The ONLY constitutional protections that count for anything are substantive limits on (a) what can be made illegal and (b) what penalties the government can impose. The First Amendment is not bullsh!t because it actually prevents the government from outlawing speech. The 8th Amendment is not bullsh!t because it actually prevents the government from imposing certain penalties.
The forces that be are trying to turn the 8th Amendment into bullsh!t with respect to the death penalty by making it a matter of “procedure” rather than substance. If they could, they would do the same to the First and Second Amendments, too, which is where we may be headed.
Do not settle for procedural protections. They are all, I repeat, bullsh!t. Only substantive prohibitions on the government’s exercise of power count for anything.
@John- Thanks for being persistent. I read the thing, and somebody correct me if I’m wrong, but seems to me people have good reason to get worked up because the opinion basically gives cops an outline for getting their stories straight when they need to prove that they themselves didn’t create the exigent circumstances. As Libby pointed out, see pg. 18-19 and the evidence of demand. Do you really think all the cops said when they knocked was the word “police”?
Maybe we should start setting voice recorders by our doors and letting them run whenever we’re engaging in activity that produces smells that could be associated by sensitive-nosed cops to some sort of illegal activity, just so we’ll have the evidence we need to prove the cops said something in addition to “police” before they busted down our door.
@Ackisom – I’ve noticed that most folks tend to address criticism and questions from people who present those criticisms with a tone of respect or at least of thoughtful honesty. I’ve noticed that when people call me names, I get the feeling they don’t much respect me or that they haven’t thought much about my situation. That’s fine, I’ve done lots of stuff that isn’t respectable, and I’m not offended if you call me names. But if you’ve shown me no respect and if you’ve talked at me with no earnest intention of understanding something I have said, you can’t expect me to do anything other than ignore you. I’m guessing LIbby and I work sort of alike that way.
@Libby- Thanks for writing, and for provoking such fascinating conversations and outbursts. You did a fine job.
Danny, it’s okay to say Bullshit here.
@maybelogics: I have no doubt of the litany of things police do wrong, and I could add a few myself from my time in the public defender’s office, but the actual holding in this case is very, very narrow so I think people are reading all of the facts (remember that the court remanded the case for fact-finding) and assuming that it’s okay, when it is very possible the lower courts will find that on these facts, exigent circumstances did not exist. Let’s let them make that determination first.
@John- Thanks for the clarification. I look forward to that next finding. But Justice Ginsburg’s dissent was written with rather bunched panties, and I have a hard time believing that you’d tell her she has reason to unbunch herself. So either one of you is not seeing something the other is, or the court just sees the need for an expression of panty-bunching and Ginsburg got the short stick.
I’ll ask here the same thing I asked in the other thread. What is it about the state of Fourth Amendment law before this case that made it less likely that police would lie to preserve an arrest, search or conviction? I think the rule Ginsburg suggested in her dissent is probably a better rule, but the rule we got is a lot better than the rule we could have gotten (and that I would have expected) that the fact of exigent circumstances is enough and courts won’t inquire beyond that.
Yes, I’ve noticed the same thing.
But I’ve also noticed that far, far more folks tend to ignore valid criticisms and questions regardless of their tone and thoughtful honesty.
And I’ve also also noticed that you’re not actually providing any kind of evidence whatsoever that said by-far majority case doesn’t apply to Libby’s behavior.
Furthermore, I’ve also also also noticed all the valid criticisms and questions directed to Libby in the original thread that were presented in respectful tones and displayed thoughtful honesty but nevertheless went completely ignored as well.
Finally, I’ve also also also also noticed that in another thread you actually asked me, directly and personally, to do something for you, with no promise of recompense, and I did, and that instead of thanking me for that, you’re trying to blow a stinky load of “Now, Play Nice” smoke up my ass. . .
. . .while thanking Libby.
You should always have it by the door. Someone else’s activity in the same building can provide the smell.
I agree with Danny very much on the ‘matter of procedure’ issue. In fact, the basically all of the government’s evisceration of the bill of rights is done through making them matters of procedures and regulations.
Here are some examples I can think of off the top of my head:
1st amendment: Free speech zones, obtaining a ‘permit’ to protest, various 2257 title requirements on adult movies.
2nd: all the licensing, permits, gun saftety classes and notification restrictions
4th: Exigent circumstances, border exeptions, adminstrative searches, etc.
5th: Allowing all kinds of police pressure and intimidation. I remember a recent case where the conservative bastards tried to argue that getting someone to crack after 30 hours of interrogation wasn’t a violation of the 5th.
etc.
@John Jenkins – This ruling weakens Constitutional protection against unreasonable search and seizure by finding that police-induced circumstances *can definitely* be considered exigent in the first place. Whereas police routinely used such circumstances as post facto justification before, now there is SCOTUS precedent for this justification, which makes it all the more likely to occur. Priorly, there was [arguably] plausible excuse to rely upon such justifications, but now, especially with the test for such justification left open for future deliberation (and we know very well how that’s going to play out, given existing case law), there is confirmation that police-induced circumstances present justification. There is a huge difference between what *might* have been okay and what is now *definitely* okay. Given your background in the public defender’s office, you must be fully aware that when judicial finding explicitly approves police behavior, that behavior becomes far more common than when it was merely experimental behavior by a subset of police agencies.
In short, some police agencies have induced circumstances to present justification. Now, police agencies the nation over have been given carte blanche, short of some nebulous future test determination, to induce their own exigent circumstances to justify Fourth Amendment-violating activities. Surely, you recognize this change.
@Acksiom – So you’re saying that you have to be rude in order to get your point noticed? Try capslock. It is ever the strategy of the unnoticed internet poster.
I’m glad the Supreme Court relied on very concrete things
like “the odor of marijuana” and the “suspicion of” destruction
of evidence instead of vague, unverifiable stuff cops could just lie about.
No need to get touchy, Acksiom. I ain’t got no beef w/you. And I totally forgot about that paragraph I’d asked you to explain. I just read it, so thanks for writing a response. I’ll go post mine to you on that thread now, so as not to threadjack this important discussion.
But I’ll start off by saying I figure that “harsher treatment” you mention that trains men to perform more successfully includes things like having women blow stinky loads of “now play nice” smoke up their ass. So, really, I’m just part of your male-superiority conditioning regimen. Maybe you should thank me for that after all. ;)
Actually, the Supreme Court noted in its opinion that the lower court ought to determine whether or not there was exigent circumstances. The actual question before the court was whether or not the actions of the police “manufactured” the exigent circumstances.
The Supreme Court’s ruling boils down to this. Banging on the door loudly and announcing “Police!” in no way violates the Fourth Amendment.
I’ve noticed that most folks tend to address criticism and questions from people who present those criticisms with a tone of respect or at least of thoughtful honesty. I’ve noticed that when people call me names, I get the feeling they don’t much respect me or that they haven’t thought much about my situation.
Fair enough, were the opposing commentary something akin to 4chan, I’d agree. However, the reaction here seemed more tame than were it a post by Mel Gibson reminding you that women exist only to serve men were posted over at say, Jezebel.
Regardless, if one doesn’t have the intestinal fortitude to defend their own ideas/posts/op eds then why would anyone take them seriously? If someone attacks ad hominem, the author should at least have the strength to tell them to piss off until they get an argument.
If one holds feminist views and posts in a libertarian-ish forum they’d best be prepared to stand their ground. Sorry millenial, this is the real world – everyone doesn’t get a gold star, and your ideas have to hold up to actual scrutiny. Not all ideas are good, in fact, most suck. I’m sorry the educational system failed you, but there’s no time like the present to learn how to compete in the marketplace of ideas.
Perhaps this is just another example of the Bachmann/Palin/Coulter effect: some men will shut off the big head in hopes of getting some action for the little one. Fortunately, it seems some of us here expect more.
Oh come on. There are far more bloggers than just this one who don’t engage in back and forth sniping and personal attacks in the comments to posts they write. The bloggers at Reason very rarely show up in the comments, and people there regularly bitch and moan about things they dislike about them or ways they disagree. You’re upset because Libby wouldn’t engage you in your personal attacks, which you started because you disliked what she had to say. Radley doesn’t pop into his comment section to respond to every single point, he only does when he has something he wants to add to the discussion. This week has been very telling-there are quite a few people whose opinions I no longer take seriously in this comment section.
@Matthew Peck: I don’t think that the rule enunciated in this case is significantly different from how things actually worked yesterday, so I don’t see it as that big a deal. A lot will depend on the fact-finding in the subsequent cases, but I can see the Kentucky Supreme Court finding that the officers violated the Fourth Amendment in creating the exigent circumstances and again disallowing the search, but we can’t know the real effect until we know more about the eventual outcome.
#16 Matthew Peck — No; I wrote that I’ve also noticed that far, far more folks tend to ignore valid criticisms and questions REGARDLESS of their tone and thoughtful honesty.
Can you please explain how you managed to get from that to “So you’re saying that you have to be rude in order to get your point noticed?” Because that’s pretty much the opposite of what I actually did post.
#18 maybelogics — I’m curious as to how your attempt to falsely characterize me as “getting touchy” (Catalog of Anti-Male Shaming Tactics, Code Blue – Hypersensitivity) is supposed to match up congruently with your own assertions about respectful tone and thoughtful honesty. It seems rather self-contradictory to me. How’s that supposed to work, exactly?
Also, were there or were there not any valid criticisms and questions directed to Libby in the original thread which were presented in respectful tones and displayed thoughtful honesty but nevertheless went completely ignored as well?
And if there were, do you then actually have any kind of evidence whatsoever that said by-far majority case of ignoring them regardless doesn’t apply to Libby’s behavior?
Finally, if you meant to avoid jacking this thread, why did you post something much more likely to do it than not?
@John Jenkins – Granted that we do not have standard-setting judicial finding to predict, accurately, what will be the test going forward. However, I think it is undeniable that we can predict, with very good accuracy, what *will* be the outcome of such a test: that there will be boilerplate justification formulated and put into common practice (police academies literally test recruits on their ability to memorize such boilerplate) that will be accepted as the standard for establishment of justification to violate Fourth Amendment protections as a direct result of this finding by the Supreme Court. How many times have you encountered “pungent odor” and “furtive gestures” in your capacity as a public defender? Surely, you don’t suppose that police agencies won’t establish Standard Operating Procedure for justifying Fourth Amendment violations in court?
@John Jenkins – Permit me to straw man, for a moment: I believe that you will, reasonably, protest again that you don’t see how anything *changes* as a result of this decision. I straw man thus, as I suspect I haven’t properly addressed the question. I will answer.
If we are to presume, as I think is useful, whatever others might think is rational, that most cops are “good”, while a minority are “bad”, then I think, by corollary, we can presume, likewise, that most police agencies are “good”, while a minority are “bad”. Something, something, something, Joe Arpaio. Thus:
Before This Decision
“Bad” police agencies routinely presented as justification for otherwise Fourth Amendment violations police-induced exigent circumstances. We all agree that this is the case, I think.
After This Decision
“Good” police agencies, ideally skeptical of the validity of the justifications presented by “bad” police agencies, have now been given explicit confirmation that police-induced exigent circumstances, whatever their *individual merits*, are, fundamentally, and at least in *some* eventualities, proper justifications for violations of otherwise Fourth Amendment violations. As is human nature, such agencies will now adopt policies which induce exigent circumstances in pursuit of theoretically-benevolent police action, leading to a much-increased incidence of Fourth Amendment violations that are, in court, upheld thanks to this decision. As a matter of course, the specifics of any given such event will trend toward pushing the limits, since there is no test yet defined, nor will there be for some years to come. Even when a test is defined, police agencies the nation over will adopt boilerplate testimony that will serve, in practice, to justify police behavior in the eyes of courts.
This is what has changed: “good” police agencies are emboldened to adopt the policies of their “bad” brethren, specifically because of this decision.
#21 Lurker, No; I’m not upset; you’re just lonely and insecure.
I think you’ve misunderstood me, Matthew Peck. I don’t think that this ruling changes anything because I believe that the same set of facts would have always resulted in the same result (search okay!). I do NOT think that is the right outcome existentially, but my existential beliefs have not been enacted into law (fortunate for users of “shall” and “in the event that”). I don’t believe that “good” agencies in your hypothetical have any more incentives than they did yesterday, for the same reason that I don’t think that legalizing heroin will turn everyone into a maddened junkie. On the margin, it’s just not that much of a difference (or, in this case, any difference at all).
Maybe that’s a result of the cynicism that results from seeing the criminal justice system up close and personal for long enough, but to the extent there are good cops (and there are a few) this isn’t going to change their behavior, and the bad ones were going to do bad shit anyway.
@John Jenkins – I think what we’ve come to is that you adopt a view of police agencies, prior to this ruling, that concludes a result, after this ruling, roughly equivalent to results already realized. With that I can not much disagree. I do believe that what was acceptable, priorly, is now codified as justified. Whether there is any practical difference is a matter of debate, but I think there is now a greater burden on the part of defendants to invalidate what I believe to be Fourth Amendment-barred admissability in court. You, without question, are an authority on that, with which I won’t pretend to be competent to disagree.
After all of this, it seems that whatever disagreement we have is, frankly, academic. I believe that codification of bad practice is worse than acceptability of bad practice. You seem to assert that it’s all the same in the end. Fair enough. I suspect we’re fully in agreement as to how the world is, whatever might have led to it. You’re okay in my book. I look forward to future discussion on matters of these or other natures.
You’re upset because Libby wouldn’t engage you in your personal attacks, which you started because you disliked what she had to say.
Lurker,
I do hope that wasn’t in response to my comment, as I have not attempted to engage the blogger in question. At all. Zero times.
I did make an observation based the other threads I have read and the (not really so) curiously apologist tone taken by some of her defenders.
Anywho, this is becoming a hijack and therefore time to bail on this tangent.
Acksiom, I just posted a reply to you in the other thread. There are no false nor accurate characterizations in it whatsoever. And my comments toward you had jack squat to do with the fact you have a dick, I was giving you shit because you gave me shit.
John Jenkins- so what you’re ranting about is “if the cops come knocking on your door and hear the toilet flush, they have every right to break thru the door and start shooting at you, no explanation required”.
You, sir (small ‘s’), are an idiot.
Just because the toilet flushes or the Tv is loud and someone screams within a horror flick or the radio is playing some dipwad ghetto rap song, does not negate the Fourth Amendment no matter how you slice the pie.
Nor does defending the Fourth in all instances, regardless whether ‘the case’ was read or not.
A person’s threshold is their castle moat, and crossing it unwarranted or unwanted, regardless the circumstances within, is unConstitutional. Any person thinking otherwise is either a fool or a lackey.
Which, sir, are you?
Shy III
@4, this country was a police state years ago. I don’t understand why anyone believes that the cops won’t lie and claim they heard X, Y, and Z and saw A, B, and C which then justifies their actions. They lie so often and it is supported, so it becomes an ingrained behavior. Fuck them all.