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by Peter Moskos

May 17, 2011

Warrant? We don't need no stinkin' warrant!

The cops smell weed and bust down a door. The Supreme Court, in Kentucky v. King, say no big deal. 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.


Anonymous said...

"The officers performed a protective sweep [and] saw marijuana and powder cocaine in plain view."

A protective sweep. That's rich. The officers broke down the door of people possibly engaged in a non-violent consensual activity and THEY need protection. I'm pretty sure the people in the residence had more to fear than the police. In this instance, the police brought fear and the potential for violence into a situation where it did not previously exist. That, in essence, is the real problem with the war on drugs (and other vices).

Dave H- IL

PCM said...

I don't have a problem with a protective sweep, no matter the circumstances. I do have a problem with believing the cops didn't yell, "open the fuckin' door" before hearing sounds of "destruction of evidence" (and I'd love to know what that sounded like).

Houston Lawyer said...

I think we have long lost our right to the 4th amendment. I represented a client no long ago that had his rights stomped all over. It was easy to see to even those that are not in the field of law. The fact that it was held up under good faith was nothing more than a joke. Lying not only on the affidavit, but also on the stand still didn't matter to the judge. The bottom line is that judges today are to worried about the vote that they will be facing next time around to make sure that they do the right thing when given the chance. Remember our system was set up so that a guilty man would go free instead of one innocent man being locked up. The only problem is that it is not a perfect system, but It is much better than others.

Anonymous said...

By the time I made sergeant some time after I finished my 8th year, I had written over one hundred search warrants. That equated to more than one a month. This was with only two years on a drug team. I wrote a bunch as a patrol officer because it was easy to do and got me in to stuff that others tried to talk their way into. I recall a gang banger that told me, "you can't look in my stuff." I pointed to the search warrant and said, "A judge said I could." He didn't have a come back to that. The Houston lawyer is full of shit. The 4th amendment is alive and well. The problem is he is believing his shit head clients instead of professionals. The majority of us in the field are doing things right. The clinging to a few bad cases where officers do the wrong thing is b.s I will turn an officer in at a moments notice to ensure that integrity is maintained. Don't fall for the headlines. The majority of police work is being done right.

PCM said...

Thanks for the comment, Brett. I agree that the majority of police work is being done right.

But the bar needs to be high. All police work should be done right (or at least with the right intentions... mistakes do happen).

It just always seems that whenever the work is done wrong, there are always drugs involved.

Anonymous said...

Cops are ass holes with badges pinned to them.
I remember when that was not the case. They were regular people doing a job. Too bad the old guard seems to have been replaced by paper gods with contempt for all not of the realm.
Spending some time in Indiana has erased any respect I, and many other citizens once had for them.
The only difference I can see between the police and gang members is the uniform.
Not likely that will ever change.

PCM said...

Thanks for your fine intellectual contribution to this blog. You sure know how to raise the tone of discussion. Dumbass.