8-1 The 4th Amendment Loses

More often than not I agree with Justice Alito. I never, ever, agree with Justice Ginsberg. Until now.

I called Hades; they assured me it is not snowing. I didn’t believe them, of course, but I am in no rush to personally check out the scenery.

The Justices ruled 8-1 allowing officers, who loudly knock on a door and then hear noises suggesting evidence is being destroyed, may, without a warrant, break down the door.  The court does not define what may be a “suggestive” sound. Prior to this ruling, the court has ruled the police can enter a home only with a warrant or the owner’s permission with Justice Alito saying in the past, “The 4th Amendment has drawn a firm line at the entrance to the house.”  The exception being if the police hear screams coming from the house then they were permitted to enter.

First, the fourth amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The case:

In Lexington KY, police followed suspect “A” into a building who they suspected sold crack cocaine to an informant. Once inside the building they lost suspect “A.” In the hall, they could smell marijuana smoke. The police wrongfully assumed suspect “A” had entered an apartment and pounded on the door yelling ‘Police. Police. Police.” Upon hearing noises of movement, they announced they were coming in and broke down the door. Inside, they found Hollis King, not suspect “A,” smoking marijuana and placed him under arrest. They also found powder cocaine on the premises.

The Kentucky Supreme Court, overruled his conviction siting the police violated King’s fourth amendment rights by breaking into his apartment. The Supreme Court over turned this ruling stating the police conduct was “entirely lawful” and justified in order to prevent the destruction of evidence. Justice Alito wrote:

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. A resident need not respond, but the sounds of people moving and perhaps toilets being flushed could justify police entering without a warrant

Am I wrong here? Did Justice Alito basically say  “If the police knock on your door, stay very, very quiet until they go away?”

The lone dissenter Justice Ginsberg wrote:

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.

How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and …forcibly enter?”

I may never agree with Justice Ginsberg again, but she got this one correct.

Of course, why should the Court’s ruling be a surprise? First the Court attacked free speech by upholding McCain-Feingold campaign reform. Then, they attacked private property rights by upholding the use of eminent domain to transfer land from one private owner to another. Now, the fourth amendment has just been neutered. What’s next?

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40 Responses to 8-1 The 4th Amendment Loses

  1. Eric Poli says:

    Wow. Based on numerous lower court rulings and “criminal” case outcomes, most cops probably already feel untouchable because cops are rarely penalized when they step over the line. Now the Supreme Court is inviting them to. Not only did Judge Alito basically say, “If the police knock on your door, stay very, very quiet until they go away,” but he also implied that the police can break down your door if they hear anything, like, say, your neighbor flushing their toilet. Or in other words, “Police can do pretty much anything they want, and the courts are not going to hold them accountable.” It is sad that our constitution can be applied so situationally.

    • Bret Rickert says:

      Wow is right! There have been rulings I disagree with, but this ruling scares me.

    • The cops are never penalized for constitutional violations. The exclusionary rule penalizes the public instead, by eliminating vital evidence resulting in lost convictions and criminals being released instead of imprisoned. The exclusionary rule is supposed to deter police, but it doesn’t. If a cop finds a big cache of drugs, they’ve taken the drugs “off the street” whether or not they get a conviction. And they know that they will get another chance to catch the same perps again. If we want to deter illegal searches and seizures, they need to be held personally responsible or liable in some way. Making them financially liable to the victims or subject to fines is probably counterproductive, but keeping a record of violations that affects their employment, advancement, pay rate, etc. might be an effective deterrent at least for the first few violations. Repeat violators might be subject to personal financial liability or dismissal. Making the police agencies civilly liable to the victims of illegals searches and seizures might also incentivize them to “police” their officers’ behavior a little more. In any case, the current system doesn’t work very well. Courts don’t really want to apply the exclusionary rule because it’s unfair to society, but we’ve rejected any other remedies so we’re stuck with it.

      • Jeremy says:

        You should read up on this. Police officers are already personally liable for their actions. If an officer messes up in the line of duty, a citizen can sue the officer and, if they win, take everything the officer owns, even their kids college funds and their retirement savings.

        When I went through police academy a full third of our classwork was on ‘how not to be sued’. It’s so bad that I know officers who would hesitate to fire their weapon out of fear they’d miss their target and get sued for it.

      • Jeremy,

        In theory you are right, but it NEVER happens. Please find me one example where a police officer was found personally liable for an illegal search or seizure.

        And no, the Rodney King case is NOT an example. That was for excessive violence, not illegal search and seizure. By the way, those officers were acquitted the first time on the basis of the full video and the federal prosecution was blatantly unfair and prejudiced. The conviction had far more to do with public relations than it did with the evidence or constitutional rights.

        If you look closely at my statements, I said that “Making them financially liable to the victims or subject to fines is probably counterproductive.” Thus, lawsuits for violations would have to be against the police agency, not the officers. Any personal consequences for the officers would be handled internally, much as it is now, but police agencies would have a greater incentive to “police their officers’ behavior a little more.” It might mean loss of promotions, raises, and even employment for frequent offenders, but I don’t really have a problem with that. If you can’t respect citizens’ rights, you shouldn’t have a badge and a gun!

        You should research the law regarding the personal liability of government officers more. It is very difficult to hold them personally liable for anything except the most egregious violations. That is just as true for police officers as it is for any other government employees. Also, in most states police officers enjoy union and/or civil service protections in their employment that few others have.

  2. RJ says:

    I admire you for taking a “liberal” stand on this issue. Most conservatives seem to take a “get the bad guys at any cost” approach.

    • Bret Rickert says:

      I like to think I am consistent in my views( we all have moments of hypocrisy). I am a fiscal conservative and believe in limited government. Thanks for your comments.

    • I’d just like to comment on your calling this the “liberal” stand. I’m not saying that liberals don’t dislike the ruling. But consider this, Rush Limbaugh criticized the decision. A poll of GOPUSA readers, a rather conservative group, asking if they agreed with the decision, at last check: No 76%, Yes 16%, Maybe 8%. Conservatives don’t uniformly agree with every exception of the Warrant Requirement. What we don’t like is the Exclusionary Rule as a remedy–it rewards criminals, doesn’t punish police who violate constitutional rights, and does punish society by putting criminals back on the street.

  3. I spent two years as a law clerk to an appellate court and worked on search and seizure cases almost constantly. In the past, the courts have treated the home as practically sacrosanct. I haven’t read the opinion, but I trust your reporting on it. This ruling could have an incredible impact. If hearing “suspicious” sounds indicating non-criminal activity (toilet flushing?) creates an exception, how long before every other exception that applies outside the home gets added? Not very long, I suspect.

    I also normally agree with the conservative wing of the Court, but they sometimes get carried away in their willingness to overlook constitutional violations in the War on Drugs. I’m kind of surprised that it’s an 8-1 majority. They may have tried to write the opinion narrowly, but it probably won’t be construed that way by the lower courts.

    • Bret Rickert says:

      The ruling seems to have stunned many. I find it interesting it is not getting more coverage. I’ll say this much, it seems to be one thing unifying the left and right.

  4. Jeff says:

    What if someone was on the toilet when the cops knocked? Are they supposed to just leave a floater there? People do use toilets for other reasons…I believe they’re installed in most houses…is everyone a drug dealer?

  5. Jimmy Cracks Capricorns says:

    After this ruling, on the heels of their Corporate Free Speech ruling, I have to believe somebody is slipping something in their water….

    • Except that the corporate free speech case was correctly decided. And contrary to most of what you read about that case, it did not allow corporations to make unlimited donations to politicians or campaigns. It simply held that they were entitled to engage in political speech, something the McCain-Fiengold assault on the First Amendment limited for everyone not just corporations.

  6. MarkD says:

    The Supreme Court does not have the authority to undo the 4th amendment. It would take an act of congress and 2/3rds of the states to amend the constitution. The court has been on a course for self destuction since Thomas was nominated. This will not stand.

    • Actually, no one is perfect but Justice Thomas is the most reliable member of the Court when it comes to not amending the Constitution by judicial decision. Justice Brennan did far more damage to the Court and Constitution than Thomas, Scalia, Rehnquist, Alito, and Roberts combined and he probably wasn’t even the worst of the judicial super-legislators.

  7. Keith says:

    As far as misguided Supreme Court decisions go, it’s hard to forget the disastrous Citizens United ruling.

    • Do you even know what the Citizens United ruling is about? Considering that almost all of the mainstream reporting and commentary badly mischaracterized it, I seriously doubt it. The law that was challenged had ABSOLUTELY NOTHING to do with campaign contributions. McCain-Feingold’s assault on political free speech banned any speech mentioning a political candidate during critical parts of a campaign, and the ban wasn’t limited to corporations. Individuals were just as restricted. Try READING the First Amendment! Then show me where it allows for differentiating between speakers. It doesn’t. Just because you don’t like a decision doesn’t make it wrong! Even if it’s bad policy, that doesn’t make it a wrong decision. There’s simply no historical or textual support for the dissenting position in Citizens United and arguments that corporate speech is somehow bad are legally and constitutionally irrelevant!

  8. Brandon says:

    IGNORE THE FOOT CHASE/INVESTIGATION.

    The warrant isn’t necessary NO MATTER WHAT. If they smell marijuana smoke, that’s evidence of illegal activity, and can enter with PROBABLE CAUSE.

    • I don’t recall seeing anything about them SMELLING marijuana. They entered based on sounds, which are almost always ambiguous. Sure, a flushing toilet could be a sign of evidence being destroyed, but it’s at least as likely to be evidence of my dietary habits as it is to be evidence of drug use or trafficking.

  9. Bee says:

    I wonder how long it will take before people realize what the fifth amendment (yes, fifth) is actually for, and how many civil rights need to be stomped on by the State before people begin to see

  10. rwx says:

    Now, the fourth amendment has just been neutered. What’s next?

    What’s next: Revolution.

    • Jerry Pipes says:

      Preach on, brother.

    • Revolution next? In a word, “no.”

      At least not a violent revolution. The 2010 election was the start of a revolution of a kind, but it remains to be seen if it can keep up its momentum long enough to succeed.

      • Illuminatus says:

        I wouldn’t necessarily be so sure about that though, nonviolent revolutionary attempts have a long history of failure. The point is usually driven home when someone feels the pain of their actions or actions against them, you can observe that during nearly any revolution in the past. Sweeping democratic revolutions are happening in the middle east right now in a violent and effective form contrary to the years of nonviolent suffering due to lack of an effective revolutionary tactic that has proven its self since the beginning of man. Couple that with how many people lack a proper education and hold prejudices with an unopened mind and hey theres your real conflict.Done

  11. craig says:

    “The Supreme Court over turned this ruling stating the police conduct was “entirely lawful” and justified in order to prevent the destruction of evidence.”

    Since when are the police entitled to prevent the destruction of evidence? What evidence? If they have no warrant and no probable cause, how can they assume there is any evidence of anything to destroy? Sometimes flushing a toilet isn’t to get rid of “evidence”.

    Of course, with no standard of how quiet you need to be, being quiet until the police leave is meaningless. They’re coming in if they want to now.

    • Buckaroo says:

      You nailed it. People forget that the amendments cannot restrict the USE of power, only the ABUSE of power. Search and seizure without a warrant is exactly that. UNWARRANTED.

  12. Thomas says:

    I understand that a police officer’s job is hard and dangerous, and that they need to make judgement calls. On the other hand, police are not exempt from the reactions to those calls. We have a right to defend ourselves, our homes, and our families from the violence of un-announced individuals. The fact that they have a badge matters not to a bullet; warrants are for the protection of the officer as much as the citizen. I firmly believe that it is not the right or the privilege, but the responsibility of a citizen of any free nation to stand up against tyrants and their agents with force commensurate with that inflicted upon them.

    I truly hope no cops get hurt as a result of this ruling, but the fact of the matter is that if the courts make it legal for someone with a badge to kick in my door and threaten me and my family, they will get the same treatment as any other person with violent intent entering my home.

  13. Adam says:

    Every single one of you better be watching your “Ps and Qs”. I would not of even put this blog up. Just to voice opposition to this ruling, you are in violation of the Patriot Act which calls any public decent from government supported rulings/decisions are a violation of the act. If you are arrested for violation of the Patriot Act you are IMMEDIATELY deemed a terrorist (domestic) and you are not guaranteed a trial by jury, a speedy trial or defense unless you can afford one. They can wire tap your phone, read your mail, the gov’t’s power to strip you of the Bill of Rights is unlimited by the Patriot Act. And our Junior Congressmen from the T.E.A. Party just approved an extension, allowing NO PUBLIC DEBATE TO BE HEARD BY CONGRESS until 2014.

    I’m failing to see the continued threat to justify such an action. This is the groundwork for the police state.

    • Adam,

      Your ignorance of English grammar is exceeded only by your ignorance of the law. Try researching what the Patriot Act actually allows, and under what circumstances, as well as the checks on those powers and not paranoid nutwing conspiracy kooks who think Big Brother is always watching them.

      Oh, and one piece of free advice. Take off the aluminum foil helmet. It’s really an antenna, not a shield. You need to build a Faraday cage for that.

      • Adam says:

        Look man, don’t be an asshole. Too many of those out there now anyway and you wind up giving conservatives a bad name. I was being facetious. Being mellow dramatic. And maybe you should be more concerned with the content and implications of my statements rather than my use of “of” rather than “have” or leaving out the “s” in descent. I’m not an idiot, nor do I lack mastery of grammar, I simply reserve the right to be lazy with it when I so choose.

        The problem with the Patriot Act is the same problem as this ruling. That problem is over reaching of government limitations set forth by our founding fathers. This ruling allows them to break down your door on a hunch rather than having to have some kind of hard evidence. This is a constitutional issue. As well the Patriot Act.

        Do you believe that our founding fathers were honorable, decent, God fearing men? Who were at their core, dedicated to seeing freedom for all their countrymen to worship as they saw fit, speak as they saw fit, live their lives as they would so long as they were not bringing hurt or bearing on someone else’s freedom to do the same? I do. But the Department of Homeland Security does not seem to think so. I would point you to a video of a class for DHS new hires that was videoed. The professor refers to the founding fathers as terrorists.

        I can assure you sir/ma’am that there is NO reason for tin foil hats as far as I am concerned. THESE ARE NOT TIN FOIL HAT ISSUES. And the fact that you denigrate my position and relegate my comments to the rantings of a lunatic show, without question, that you truly have a loose grasp of the encroachment that the American government is engaging in on ideas and mandates set forth in the Constitution and it’s constituents!

        Go find yourself a liberal to bash how bout it. You clearly lack understanding, or maybe you just have your head in the sand.
        These checks you speak of, are they administered by other members of the Federal government? Or are they administered to local watchdog groups throughout the country? See, ever since the Supreme Court began to legislate from the bench, especially making decisions that moved us closer to Socialism, Communism or Fascism, I haven’t had a lot of faith in the trustworthiness of the Federal government. The checks in the system of Checks and Balances…have bounced.

        Clearly you didn’t catch the items in the Patriot Act that was deemed unconstitutional. If you had of, you couldn’t not have concerns about it’s overreach.

  14. matt says:

    What is the name of the case?

  15. Bret, as an attorney I have numerous contacts in Hades. I have confirmed with multiple sources that Hell was not frozen over.

  16. Timothy Frank says:

    When the Supreme Court of our land is “free” to interpret “The right of the people to be secure …” in such a manner … that an armed force of men and women have the “right” to “redefine” “secure” to mean that they are allowed to break down the door of any citizen’s home at any time of day or night … and that such a citizen has “no right” to defend their home from said invasion … seems contrary to the also granted right of “a citizen” to “defend” their home from an invader. The presumption of the court that police agencies will “in good faith” respect the boundary of private property rights … when the temptation exists to do otherwise … is blatant foolishness. The founding members of our country had a clear vision on this matter … the fourth amendment is a brilliant piece of writing … and crystal clear in its intent and purpose.

    Shame on our Supreme Court.

    A far more serious question now remains to be resolved. When the highest court of law of our country clearly has mistakenly interpreted this right … what can we, what should we, do as citizens? As leaders? To restore the balance of power to where it belongs: in the hands of the people and not in the hands of its government, police, and military.

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  19. Kyle From Silverton says:

    It sucks the entire country is nothing but mindless robots that support these people that take away rights or the evil people would be outta here by now.

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