As my farewell-as-guest-blogger post, let me contribute to the Kentucky v. King debate. In a few words: It’s a dumb decision, but it’s not such a big deal. This decision simply reaffirms the status-quo.
As best, the Court’s decision can be described as yet another nail in the coffin of the 4th Amendment. But thanks to the War on Drugs (starting with Alcohol Prohibition) it’s not like this is even the first or fifth nail.
And the logic of court has been consistent. When it comes to policing and warrantless searches, here are the rules:
1) Anything police come across is fair game. In other words, if police are there legally, they never have to close their eyes to something illegal (even if it’s not what they first came to look for).
2) “Exigent circumstances” give police the right to skip the warrant requirement.
3) Police are allowed to make honest mistakes if they’re acting in good faith.
4) Police have the rights to look for weapons that could be used against them.
5) The Court has no desire to read the minds and intentions of police officers (or concern themselves with how hard police knock). It just wants police behavior to be legal.
Taken individually, it’s hard to see any of these rules as unreasonable. Taken collectively, it means arrests are almost never, as the Founding Fathers intended, conducted with a court-issued warrant. It’s strange to me, since the 4th Amendment–unlike, say, the 2nd Amendment–is pretty unambiguous.
The Court says: “The text of the Fourth Amendment does not specify when a search warrant must be obtained.” Actually, in omission, it does: All the time. But the Court has long discarded that principle and declared the “unreasonable” word in the 4th Amendment means that “reasonableness” is the key. [Doesn’t this go against the 9th Amendment? But what do I know?]
Kentucky v. King affirms what the rules of the street have long been: destruction of evidence is an exigent circumstance that gives police the right to bust down a door without a warrant. If the people in the apartment hadn’t made sounds like they were covering up evidence (which they were), police wouldn’t have had the right to break down the door.
But here the court gets a little saucy: “Citizens who are startled by an unexpected knock on the door… may appreciate the opportunity to make an informed decision about whether to answer the door to the police.” Well ain’t that precious? “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.” Wow. Having knocked hard on a few doors myself, I find that hard to believe, especially when the Court follows it up with this: “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 exigent-circumstances search that may ensue.” Oh, snap!
Here are the specifics:
Police officers set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer … radioed uniformed officers … that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to “hurry up and get there” before the suspect entered an apartment.
Just as they entered the breezeway, [uniformed officers] heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.
One of the uniformed officers … banged on the left apartment door “as loud as [they] could” and announced, … “Police, police, police.” … “[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.” These noises, Cobb testified, led the officers to believe that drug related evidence was about to be destroyed.
Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent’s girlfriend, and a guest who was smoking marijuana. The officers performed a protective sweep [and] saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.
Police eventually entered the apartment on the right. Inside, they found the suspected drug dealer who was the initial target of their investigation.
Now it’s one thing to think, as I do, that the War on Drugs is futile and a very unproductive use of police resources, but in this case it all comes down to whether or not the officers “created their own exigency” by ordering the occupants to open the door. The Court somehow bases its decision on the hard to believe idea that the officers never said, “Open the door.” Now I wasn’t there, but I’d bet, “POLICE POLICE POLICE,” was quickly followed by “OPEN THE F*CKING DOOR OR WE’LL BUST IT DOWN!” The court, eight out of nine majestic justices, respectfully disagrees.
This is my last post here. I don’t have to go home, but I can’t stay here. But before I go, let me thank Radley Balko for inviting me to be a guest blogger. It’s a good man indeed who invites a former cop to have his say in what is an excellent but (in my humble opinion) fairly anti-cop blog. So kudos to you, Radley! And thanks to all of you for putting up with me. Personally, I’m looking forward to Radley’s return!
But if you’ve enjoyed my posts, feel free to keep reading me at Copinthehood.com. Even better, consider buying my new book: In Defense of Flogging (buying Cop in the Hood, my old book, is OK, too)! Both make great summer reading.
Good night. Drive safely. You’ve been a great audience. And don’t forget to tip your waitress.