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KENTUCKY v. KING
May 17, 2011 12:37 PM   Subscribe

How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?
Supreme Court OKs More Warrantless Searches

Majority opinion
Dissenting opinion
posted by AceRock (305 comments total) 15 users marked this as a favorite

 
In fairness, things moving is often a prelude to unlawful activity.
posted by Trurl at 12:41 PM on May 17, 2011 [7 favorites]


Time to end the ridiculous drug war.
posted by empath at 12:41 PM on May 17, 2011 [10 favorites]


Terrifying. One less check on already almost unbridled power.
posted by lalochezia at 12:42 PM on May 17, 2011 [7 favorites]


This is an impractical, bad ruling that in effect provides a massive loophole in constitutional prohibitions on unreasonable search and seizure. It's disappointing to see the justices finally come together to sign onto a majority opinion that, regardless of technical merits, is just a terrible outcome.
posted by saulgoodman at 12:42 PM on May 17, 2011 [7 favorites]


If police knock on the door and then hear sounds indicating that evidence is being destroyed, then they may conduct a warrantless search to prevent the destruction of evidence. That's what the Court ruled. It's not so crazy. In fact, the decision was 8-1. Ginsburg couldn't even pull Breyer along for the dissent.
posted by Slap Factory at 12:43 PM on May 17, 2011 [2 favorites]


In fairness, things moving is often a prelude to unlawful activity.
posted by Trurl at 2:41 PM on May 17 [+] [!]


you mean, like, me moving to the door so i can open it?
posted by lester at 12:43 PM on May 17, 2011 [13 favorites]


We don't need no constitution.
We dont need no bill of rights.

All in all it's just another chip in the fourth.
posted by Talez at 12:44 PM on May 17, 2011 [12 favorites]


"sounds indicating that evidence is being destroyed"

This simply means that any officer anywhere can cover his ass after kicking in your door. This is not acceptable.
posted by ged at 12:45 PM on May 17, 2011 [58 favorites]


What, exactly, are the sounds of evidence being destroyed? Will there be police training in identifying these sounds?

Do I become immune to this form of warrantless search if I rig up a loudspeaker that blares white noise immediately upon someone knocking on my door, so that it is arguably impossible for police to hear any noises coming from inside my home?
posted by de void at 12:48 PM on May 17, 2011 [24 favorites]


Yet another victory for the corrupt felt boot lobby.
posted by StickyCarpet at 12:49 PM on May 17, 2011 [2 favorites]


If police knock on the door and then hear sounds indicating that evidence is being destroyed, then they may conduct a warrantless search to prevent the destruction of evidence. That's what the Court ruled. It's not so crazy.
You don't see that ginormous loophole there?
What sounds might indicate evidence being destroyed? Flushing toilet? Perhaps the person in the home was on the toilet when the police knocked?

Oh, and in other legal news, my own Indiana Supreme Court also handed-down a doozey this week relating to police actions.
posted by Thorzdad at 12:49 PM on May 17, 2011 [8 favorites]


Alito:
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. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak . (“[H]e may decline to listen to the questions at all and may go on his way”). When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.” And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.

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.
christ what an asshole
posted by AceRock at 12:50 PM on May 17, 2011 [10 favorites]


Fuck everything about this.
posted by Catblack at 12:50 PM on May 17, 2011 [2 favorites]


Essentially, if you happen to be taking a dump when the police knock, you might as well be wiping with the constitution.
posted by furiousxgeorge at 12:51 PM on May 17, 2011 [43 favorites]


The problem is there's no requirement on the police to demonstrate they heard any such sounds of evidence being destroyed. All they have to do in practice is knock on your door and if no one answers immediately, claim they heard sounds that might have been evidence being destroyed.

It's a completely unverifiable and unaccountable standard and it will be abused.

Think about the rampant abuses we just learned had become so endemic in the New Orleans police department--abuses so bad the Federal government had to step in and assume supervision over the police department.

It's naive and unrealistic to be making these kinds of law-in-a-vacuum rulings that ignore the potential practical abuses of the law and expand police power, giving officers the benefit of the doubt in gray areas like this.
posted by saulgoodman at 12:51 PM on May 17, 2011 [17 favorites]


Drugs aren't the only thing swirling down the toilet in this country.
posted by RobotVoodooPower at 12:52 PM on May 17, 2011 [24 favorites]


The problem is there's no requirement on the police to demonstrate they heard any such sounds of evidence being destroyed. All they have to do in practice is knock on your door and if no one answers immediately, claim they heard sounds that might have been evidence being destroyed.

And when they don't find anything, it's proof evidence was destroyed!
posted by furiousxgeorge at 12:54 PM on May 17, 2011 [30 favorites]


sounds indicating that evidence is being destroyed

Movement. So any sound at all.

What kills me, what just kills me, is that I know every single person on that court would consider themselves a patriot, doing what's right for America. I just don't get how they square that with systematically piling 200 years of civil liberties on a trash heap and burning it. Especially when there's nothing -- nothing -- about this that's at all novel. It's no different at all from King George's soldiers kicking down the door, to see if a seditious pamphlet is being hidden.
posted by tyllwin at 12:56 PM on May 17, 2011 [28 favorites]


It's not so crazy.

It's pretty damn crazy. In effect, it gives the cops an all-purpose, unfalsifiable excuse for kicking in doors without warrants. I'm not surprised at the ruling; but I'm a bit stunned that it was 8-1.
posted by steambadger at 12:58 PM on May 17, 2011 [10 favorites]


Looks like they forgot to throw in the usual massive corporate handout. Having an off day, you fascists?
posted by TrialByMedia at 12:58 PM on May 17, 2011 [20 favorites]


That settles it, I am installing a trap door a la Mr Burns.
posted by ian1977 at 1:00 PM on May 17, 2011 [1 favorite]


So the eight who voted for this are examples of those goldurn activist judges that the Tea Party is so upset about, right?

What?

Oh...
posted by entropicamericana at 1:00 PM on May 17, 2011 [2 favorites]


If there are sounds of movement it means evidence is being destroyed.
If there are no sounds of movement it means evidence is being destroyed quietly.
posted by ryoshu at 1:00 PM on May 17, 2011 [17 favorites]


So when is Sarah Paling and her ilk at Fox going to rant against this activist judicial ruling?
posted by oddman at 1:00 PM on May 17, 2011 [7 favorites]


Previous discussion on MeFi of the oral argument in this case.

As I said at the time, the case was shockingly badly-argued.
posted by Gator at 1:02 PM on May 17, 2011


If there are no sounds of movement it means evidence is being destroyed quietly.

Or a mime massacre.
posted by ian1977 at 1:02 PM on May 17, 2011 [5 favorites]


Time to end the ridiculous drug war.

It sure does help.
posted by mstokes650 at 1:02 PM on May 17, 2011


Trurl: "In fairness, things moving is often a prelude to unlawful activity."

KILL IT BEFORE IT SHOOTS BACK! Oh... It was just a wallet. Oh well!
posted by symbioid at 1:02 PM on May 17, 2011 [5 favorites]


Wow now I'm glad I've never done anything wrong so I have nothing to be afraid of.
posted by shakespeherian at 1:03 PM on May 17, 2011 [3 favorites]


You know, quiet can also be an indication that something illegal is going on, so we need to extend this ruling.
posted by dances_with_sneetches at 1:06 PM on May 17, 2011 [4 favorites]


on the other hand, this ruling will lead to a reduction in the rate of acts of perjury committed by police officers in court rooms, falsely testifying to hearing evidence of crimes being committed in private domiciles.

this ruling will reduce crime.
posted by ennui.bz at 1:06 PM on May 17, 2011 [2 favorites]


oddman: "So when is Sarah Paling and her ilk at Fox going to rant against this activist judicial ruling?"

Napolitano (as heinous as a lot of his opinions are) might be one who would speak against this kind of thing. But he's an actual Libertarian and not of the pretend-Libertarian who jumped on the Tea Party bandwagon.
posted by symbioid at 1:08 PM on May 17, 2011 [1 favorite]


Out of curiosity, how many people here have actually read the opinion, as opposed to the rather one-sided NPR blurb?
posted by Gator at 1:09 PM on May 17, 2011


maybe I missed it but it is surprising that nobody is nailing down the tautology here. in this case the officers actually manufactured the exigent circumstances they in turn used to justify warrant-less entry. it reminds me of someone being arrested for resisting arrest. otherwise agree with all of the above but it wasn't like the 4th has been getting stronger since they, uh, ratified it?
posted by lomcovak at 1:09 PM on May 17, 2011


Out of curiosity, how many people here have actually read the opinion, as opposed to the rather one-sided NPR blurb?

I'm guessing Ginsburg, whose dissent makes many of the same arguments offered here, read the majority opinion in its entirety, so if you're trying to play that stupid game of "gotcha!" to distract from the fact you don't seem to have any substantive argument, that might not be the best way to play it this go around.
posted by saulgoodman at 1:11 PM on May 17, 2011 [6 favorites]


I feel I should point out that this ruling only seems to apply if the police have evidence that there are illegal drugs in the house. That is not the impression I got from the comments here.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 1:13 PM on May 17, 2011


From that dissent:
The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”
So I guess, assuming Justice Jackson wasn't just a crank, those among the MeFite community who perennially ask "Can we call it a police state yet?" arguably have an answer to their question now.
posted by saulgoodman at 1:14 PM on May 17, 2011 [10 favorites]


I am starting to think that cinderblock walls and airtight homes are the only remedy aside from a 28th Amendment that says, "No, seriously, The Fourth. Go read it again. We're not kidding."
posted by adipocere at 1:15 PM on May 17, 2011 [1 favorite]


if the police have evidence

No, if they had evidence, they could get a warrant. This ruling is about reasonable suspicion or maybe probable cause. Not "evidence."
posted by saulgoodman at 1:16 PM on May 17, 2011 [5 favorites]


"Gotcha"? Don't know what you're talking about. I just get tired of seeing people hashing out SCOTUSgrar when they haven't taken the five or ten minutes it takes to read the actual opinion, including the reasoning and details the Justices give for having arrived at those opinions, instead preferring to read issue-laden soundbites on somebody's blog and think they understand the underlying legal issues. There was a heck of lot of that going on in the Snyder v. Phelps thread, as a high-profile example.
posted by Gator at 1:17 PM on May 17, 2011 [1 favorite]


saulgoodman, have you read the opinion, or did you just read the dissent and decide to agree with it?
posted by The World Famous at 1:17 PM on May 17, 2011


This one, I'm not sure of. I'd have to see the factual circumstances. From the write-up, there seems to be no PC that evidence was being destroyed other than the door not being answered.

There was PC, obviously of drug use, but that's only a misdemeanor.

I'll try to read up and get an idea.

So I guess, assuming Justice Jackson wasn't just a crank, those among the MeFite community who perennially ask "Can we call it a police state yet?" arguably have an answer to their question now.

when you have a recourse to the highest court of the land on whether evidence obtained in this situation is able to be excluded, then you don't have a police state. We don't win any battles when we near-godwin ourselves.
posted by Ironmouth at 1:17 PM on May 17, 2011


I wrote this comment earlier today before hearing this news.

You can add "warrant-less searches" to the list.
posted by Avenger at 1:19 PM on May 17, 2011


saulgoodman: if a cop smells illegal drugs in a house, can he not get a warrant on that basis? Serious question.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 1:20 PM on May 17, 2011


As I said on facebook: In addition to Driving While Black, now we have "being home while black."

Of course, Libertarians are outraged by this, I'm sure. Not the least because this is in service of the War on Drugs.
posted by Eideteker at 1:20 PM on May 17, 2011



I feel I should point out that this ruling only seems to apply if the police have evidence that there are illegal drugs in the house.


They smelled pot, which is just as unverifiable as "I heard movement."
posted by furiousxgeorge at 1:20 PM on May 17, 2011 [1 favorite]


Don't see what everybody's so upset about. The constitution only protects us against "unreasonable" search and seizure. "To arrest you" sure sounds like a reason to me
posted by It's Raining Florence Henderson at 1:20 PM on May 17, 2011 [3 favorites]


Except that when you strongly suspect that the "recourse" is rigged, then, yeah, you have a police state. We do not do ourselves any favors by blinding ourselves to the more obvious markers in history.
posted by adipocere at 1:20 PM on May 17, 2011 [2 favorites]


The legal reasoning doesn't really matter when the practical outcomes of a decision sucks. Lawyers and judges should relearn that. They used to not all be such impractical, myopic mandarins.

when you have a recourse to the highest court of the land on whether evidence obtained in this situation is able to be excluded, then you don't have a police state. We don't win any battles when we near-godwin ourselves.

What kind of recourse do you have when the Supreme Court has settled the question? What are the odds of the court reconsidering the issue and reversing itself?
posted by saulgoodman at 1:21 PM on May 17, 2011 [4 favorites]


And you're accusing Gingsburg of Godwinning the discussion, not me.
posted by saulgoodman at 1:21 PM on May 17, 2011


when you have a recourse to the highest court of the land on whether evidence obtained in this situation is able to be excluded, then you don't have a police state. We don't win any battles when we near-godwin ourselves.

The fact that you have recourse to the highest court in the land for violation of your rights means nothing if the court is complicit in the violation of your rights by endorsing the right violating activity.
posted by Talez at 1:22 PM on May 17, 2011 [7 favorites]


saulgoodman: if a cop smells illegal drugs in a house, can he not get a warrant on that basis? Serious question.

Maybe. But it's irrelevant. The warrant requirement is the whole point of it, not a legal expediency that can be dispensed with when its impractical.
posted by saulgoodman at 1:23 PM on May 17, 2011 [1 favorite]


I feel I should point out that this ruling only seems to apply if the police have evidence that there are illegal drugs in the house. That is not the impression I got from the comments here.

Nope, it applies in any situation where evidence might be destroyed. Drug possession cases are just the most common case of that type.

From the write-up, there seems to be no PC that evidence was being destroyed other than the door not being answered.

The door not being answered and the police “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.”

And that's just it. If 'movement' is all you need, then simply standing up to answer the door is sufficient to permit the police to break the door down and invite themselves in for a 'protective sweep' and plain view search. I know that my takeaway from this is that if the police ever knock on my door I will remain absolutely stock still until they go away.
posted by jedicus at 1:26 PM on May 17, 2011 [4 favorites]


when you have a recourse to the highest court of the land on whether evidence obtained in this situation is able to be excluded, then you don't have a police state. We don't win any battles when we near-godwin ourselves.

The thing is, it's perfectly possible to have a democratic or democratic-like police state. Putin's Russia is a good example (perhaps better described as an illiberal democracy). Even Iran is nominally democratic. Singapore, too.

"Authoritarian democracy" is not a contradiction in terms. The democratically-elected Congress and democratically-appointed Supreme Court have been chipping away at our constitutional rights for many decades and we are approaching the point where the only constitutional right that is more or less sacrosanct is the 2nd amendment.

If you understand the mentality that has brought us here, the conservative, obscurantist, nationalistic, fearful mentality which holds that police may enter and search any home if they are sufficiently suspicious, then you understand how it's possible to create a fully functioning, fully democratic police-state.
posted by Avenger at 1:28 PM on May 17, 2011 [22 favorites]


The legal reasoning doesn't really matter when the practical outcomes of a decision sucks.

That's naive. The practical outcome of a decision may "suck" for one or more of the concerned parties, but that doesn't mean the decision was wrong, or unconstitutional. The opinion goes into careful detail as to the reasoning for not finding a police-created exigency in this case, while being very careful to maintain the existing doctrine that a police-created exigency can't be used to get around the warrant requirement. What do you think about that? Assuming you've read the opinion, of course.
posted by Gator at 1:28 PM on May 17, 2011 [1 favorite]


So, in light of this, as a citizen, what is the best practice for when police knock on my door? Immediately yell "I know my rights, I don't have to talk to you?" and just STFU? This is a serious question.
posted by AceRock at 1:29 PM on May 17, 2011


Out of curiosity, how many people here have actually read the opinion, as opposed to the rather one-sided NPR blurb?

I did. I think it's actually worse than the NPR blurb makes it sound. Section II B through III C was a pretty big FU to all of the lower courts that have all repeatedly ruled the other way on this issue.

The more I think about this, the more baffled I am. The sequence seems to go like this:

1. Cop smells marijuana coming from house. (probable cause, maybe not by itself but certainly in this case, with the other factors involved)
2. Cop knocks, says "It's the police!"
3. Cop thinks he/she hears evidence being destroyed (exigent circumstances)
4. Exigent circumstances means cop has green light for kicking the door down.

And you know what? I have no problem with cops kicking down doors in exigent circumstances. I honestly don't, at least in principle (abuses of it are another thing entirely). But you're supposed to get a warrant when you have probable cause, aren't you? The cop is the one short-cutting the sequence, by knocking on the door like a moron. The sequence is supposed to go like this:

1. Cop smells marijuana coming from house. (probable cause)
2. Cop calls for a warrant.
3. A few minutes later, cop has warrant and can proceed with the knocking and the door-kicking-down.

That's how it's gone for years. It didn't seem broken, why fix it? Why reward cops for being dumb? The ruling in favor claims it's trying to avoid a situation where cops have to judge how loudly or softly to knock in order to avoid creating exigent circumstances, which seems incredibly, pointedly asinine and boneheaded to me, particularly when they proceed to handwave the reasons for the cops to be knocking without a warrant in the first place.

Section III D is just outright appalling in its willful naivete:

And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. ... 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.

You got that? You're perfectly within your rights to not answer the door when the cops come knocking, but when the cops kick down your (unanswered) door because they thought you were destroying evidence, you have only yourself to blame.
posted by mstokes650 at 1:31 PM on May 17, 2011 [12 favorites]


posted by AceRock So, in light of this, as a citizen, what is the best practice for when police knock on my door?

Don't answer it.
posted by mattdidthat at 1:32 PM on May 17, 2011


AceRock, as far as I can tell from reading the decision (I haven't read the dissent yet), you can do whatever you want, as long as the police can't possibly interpret it as "you destroying evidence". Good luck!
posted by mstokes650 at 1:32 PM on May 17, 2011 [2 favorites]


So, I'm hearing impaired. Once, my husband locked himself out of the house in a rainstorm and he knocked and shouted for about 20 minutes before I realized what was going on. (Usually the dogs bark at anyone who comes to the door, but I think they could smell that it was him and weren't concerned.) If it were the police, then what? They can hear me, but I couldn't necessarily hear them.
posted by desjardins at 1:32 PM on May 17, 2011


So, in light of this, as a citizen, what is the best practice for when police knock on my door?...

Have this as your doormat
posted by de void at 1:35 PM on May 17, 2011


The takeaway from this ruling, for the average citizen, is as follows. This should be printed on business cards and distributed to every American citizen:

"Attention Citizen: While the constitution guarantees you certain rights to be free from unlawful searches, repeated Supreme Court rulings have given police enough leeway to search any person, any vehicle or any building, at any time of day or night, for almost any reason. It is very unlikely that any search of your person, home or belongings will be declared "unlawful" in a court of law. Please act accordingly."
posted by Avenger at 1:40 PM on May 17, 2011 [4 favorites]


1. Cop smells marijuana coming from house. (probable cause, maybe not by itself but certainly in this case, with the other factors involved)
2. Cop knocks, says "It's the police!"
3. Cop thinks he/she hears evidence being destroyed (exigent circumstances)
4. Exigent circumstances means cop has green light for kicking the door down.


Well, but in this particular case, you're forgetting something:

0. Cops have set up a controlled drug buy and are pursuing a suspect into the building after the drug deal was witnessed. They follow the suspect into the building and hear a door shut.
1. Cop smells marijuana, etc.

Does that factor into your opinion of this case?
posted by Gator at 1:40 PM on May 17, 2011


The cop is the one short-cutting the sequence, by knocking on the door like a moron.

As the opinion explains, the police can knock on doors without warrants all day long, just like anybody else. And if some damn fool wants to open the door and talk to the cops or let them in, that's their business.

No, what the Court should have decided is that mere sounds of movement are insufficient evidence that evidence is being destroyed and cannot justify a warrantless search. Yes, that might result in some people getting away with drug possession. To that I say: tough. The Bill of Rights hampers police investigations by design, and the evidence in this case should have been excluded.
posted by jedicus at 1:41 PM on May 17, 2011 [8 favorites]


Also, the opinion does address the "Probable cause and time to secure a warrant" issue on page twelve, detailing several different circumstances in which it might be impractical or otherwise not the best practice to immediately seek a warrant at the earliest and faintest sign of probable cause.
posted by Gator at 1:44 PM on May 17, 2011


0. Cops have set up a controlled drug buy and are pursuing a suspect into the building after the drug deal was witnessed. They follow the suspect into the building and hear a door shut.
1. Cop smells marijuana, etc.

Does that factor into your opinion of this case?


What I don't understand is, when did the police pursuit turn into a drug bust? The police are chasing a guy, he goes into an apartment, they don't know which one, they knock on one, and hear... the destroying of evidence? Evidence of what? Evidence of the person they are chasing being hidden? Just evidence of someone doing something wrong? What I'm asking is, did they think the people whose door they kicked in were hiding their suspect? Or did they give up on their suspect and instead settle for the consolation of busting some drug users instead? Or what?
posted by AceRock at 1:47 PM on May 17, 2011 [1 favorite]


How can the search here be reasonable when the police had the less intrusive alternative of not creating the exigency and getting a damn warrant, which they admitted would take a matter of minutes?
posted by *s at 1:47 PM on May 17, 2011


The War on Drugs will must end with either legalization or a total police state. Take your pick.
posted by mek at 1:48 PM on May 17, 2011 [15 favorites]


Yes, Gator, I read it.

It seems to me to go like this:

(1) Cops have set up a dope deal and their suspect flees into a building
(2) Cops don't know what apartment suspect may have gone into
(3) Cops pick first apartment they come to
(4) Cops claims they smell something he thinks is pot.
(5) Cops pound on door.
(6) Cops hear movement
(7) Cops bust open door because a sound of something moving might be a sound of evidence being destroyed.
(8) Defendant argued against it based on the idea that even if they were moving or destroying evidence, it was only because of the cops pounding in the first place.
(9) Court is perfectly OK with it

That about right?

I agree that the defendant's specific argument was a weak one. Is that your point? Because I argue against it on the basis that ordinary and expected sounds of people going about their ordinary business are not sufficient to create a god-faith belief in exigent circumstances at all. I'm aware the court didn't specifically address that point, but it was there in front of them.
posted by tyllwin at 1:48 PM on May 17, 2011 [1 favorite]


Well, maybe it would be god-faith belief. But not a good-faith one
posted by tyllwin at 1:49 PM on May 17, 2011


Once our rights are eroded in this way, it is nearly impossible for us to get them back. Considering that we as Americans have a common hubris that our model is the best in, and for, the world, this decision is just shameful. That there was only one dissenter in the bunch has me perplexed. No good will come of this.
posted by Catblack at 1:50 PM on May 17, 2011 [2 favorites]


I know I always stop to smoke when I'm running from the cops.
posted by furiousxgeorge at 1:50 PM on May 17, 2011 [6 favorites]


AceRock, if you were to, heh heh, read the opinion, or even just the first few pages of it, you'd see that it started out as a drug bust, turned into a pursuit, they thought the apartment they went to contained the suspect they were pursuing (because of the smell), and they eventually did enter the other apartment which contained their original suspect.
posted by Gator at 1:51 PM on May 17, 2011


The more worrying thing is how this decision applies to things other than drugs and information other than sound.

e.g.: I see you in your house through the window, using your laptop. Looks like you're destroying state secrets or downloading copyrighted content. Time to kick the door in.

Tell me the reasons this couldn't happen. It's not comforting that the word "abuse" appears nowhere in the majority decision.
posted by RobotVoodooPower at 1:51 PM on May 17, 2011 [3 favorites]


So, Gator, the next time the police are chasing somebody in your neighborhood and lose track of him, are you ok with them kicking down the door of every home that they think the suspect might be hiding in, as long as they do eventually kick down the right one?
posted by de void at 1:53 PM on May 17, 2011 [7 favorites]


Does that factor into your opinion of this case?

Nope. They should have gotten a warrant to search the apartment for the suspect, whom they already had more than enough evidence to bust for the original crime. They could have left officers at the building to prevent him from escaping in the meanwhile. So what if some pot gets flushed while they wait for the warrant? Them's the breaks. The purpose of the Constitution is not to bend every which way to ensure that the police always get their man. The purpose of the Constitution is to provide safeguards against abuse, safeguards that will, sometimes, let the guilty go free. That tradeoff is an intentional, foundational part of our system of government.
posted by jedicus at 1:55 PM on May 17, 2011 [15 favorites]


Does it matter that the folks were not actually hiding evidence?
At that point, the officers announced that they “were going to make entry inside the apartment.” Ibid. 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. 1 The officers performed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.
When they busted in, the guest was still smoking a joint/bowl/whatever and drugs were in plain view. What about that scene suggests that any evidence was being destroyed? Does that matter? I am clearly not a lawyer.
posted by AceRock at 1:57 PM on May 17, 2011


The opinion goes into careful detail as to the reasoning for not finding a police-created exigency in this case, while being very careful to maintain the existing doctrine that a police-created exigency can't be used to get around the warrant requirement.

Gator, did you read the decision? It pretty thoroughly rejects all the lower-court-devised rules for determining whether or not an exigency is police created, and offers this, instead: ...we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment .

So as long as they weren't already kicking your door down or threatening to do so, the cops did not create the exigent circumstances. Sure, they left it standing - they also completely ripped off its balls, but the rule's still standing, sure!

0. Cops have set up a controlled drug buy and are pursuing a suspect into the building after the drug deal was witnessed. They follow the suspect into the building and hear a door shut.
1. Cop smells marijuana, etc.

Does that factor into your opinion of this case?


Yeah - I thought it was covered in my parenthetical about the specifics of this case, but: it should make it easier and faster to get a warrant. "We have strong probable cause to suspect the apartment contains drugs, your honor, because we just set up a buy and watched the buyer run that way." Shouldn't be a hard sell to a judge.
posted by mstokes650 at 1:58 PM on May 17, 2011


AceRock, if you were to, heh heh, read the opinion, or even just the first few pages of it, you'd see that it started out as a drug bust, turned into a pursuit, they thought the apartment they went to contained the suspect they were pursuing (because of the smell), and they eventually did enter the other apartment which contained their original suspect.

No. People here have read the opinion. Here's the difference:

Pro-drug war conservative: "Well the police said they smelled it and they're surely right about it because the police usually are and it was just some whacked out druggie so who cares it'll never happen to me because I don't smoke drugs and my apartment won't smell of marijuana."

Anti-drug war liberal: "Because you smelled marijuana? How does that even get verified? What's to stop a cop from claiming they smelled marijuana to supply a good faith reasoning for exigent circumstances if they hear movement? The cop could be mistaken or deliberately lied but they still busted down my door in good faith according to the court's reasoning! This could happen to me!"
posted by Talez at 1:58 PM on May 17, 2011 [4 favorites]


I really don't think this ruling is as broad as people are making it out to be. The police in this case had a good faith belief that drugs may have been being destroyed because a) they were following a guy who just bought drugs from them, b) they had a 50/50 shot (there were two apartments the guy could have been in), and c) they smelled marijuana coming from the apartment of the defendant. Had all those factors not been present, the court may well have come to a different decision. It's straining belief to think that courts would allow extending this ruling to someone who was using a laptop or doing nothing in the absence of other evidence.

I've said before that if you can't see the other side in a 5-4 decision, you're not trying hard enough. If you're planning to argue against an 8-1 decision, you may not fully understand what the ruling says or what the circumstances were. That said, I agree this was incredibly poorly argued - the defense should have focused on the police's belief that movement sounds constituted destroying evidence, not that the exigency was police-created.
posted by 0xFCAF at 2:01 PM on May 17, 2011 [3 favorites]


oxFCAF, what I am gathering is that even though the specifics of the ruling are more narrow than perhaps some people realize, the implications or consequences of the ruling are broader than perhaps you are allowing.
posted by AceRock at 2:06 PM on May 17, 2011


A useful substitution here, for "the officer smelled marijuana" is "the officer claimed to have smelled marijuana later on; nobody can prove that he or she did not."

Smelling marijuana is the new looked like he was going for a gun.
posted by adipocere at 2:07 PM on May 17, 2011 [4 favorites]


Also, the probable cause section? They are literally arguing that everyone's convenience and potentially avoiding embarrassment for people, or avoiding failed attempts to get a warrant based on not having enough to go on yet (which basically amounts to a few minutes wasted time and a cop's embarrassment; it's not like they can't try again later when they have more to go on) are perfectly good reasons to not stop and get a warrant. It's a really depressing bit of opinion, if you ask me:

Faulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.

Sure, but faulting them for kicking down doors when they had earlier, ignored/bypassed opportunities to get a warrant seems to me to be absolutely in the Constitution. Sigh.
posted by mstokes650 at 2:09 PM on May 17, 2011


It's straining belief to think that courts would allow extending this ruling to someone who was using a laptop or doing nothing in the absence of other evidence.

If I bust down your door and I claim that I smelled marijuana, can you prove that I didn't? Can you prove that I'm lying when I say that I smelled marijuana coming from your house and "heard movement" indicating you were attempting to destroy that evidence?

If I'm a cop, the court is going to believe me. Once cops figure this out, all they'll need is to "smell marijuana" and "hear movement" anywhere they want to search. It's going to be so widespread that it'll be an internet meme.
posted by Avenger at 2:12 PM on May 17, 2011 [9 favorites]


If I bust down your door and I claim that I smelled marijuana, can you prove that I didn't?

That depends. When you busted down the door, did you find marijuana?
posted by The World Famous at 2:16 PM on May 17, 2011


That depends. When you busted down the door, did you find marijuana?

No because you destroyed it and you can't prove that you didn't!
posted by AceRock at 2:17 PM on May 17, 2011


That depends. When you busted down the door, did you find marijuana?

"Well, we didn't find marijuana because he flushed it! Also, he resisted arrest."
posted by clockzero at 2:18 PM on May 17, 2011 [1 favorite]


That depends. When you busted down the door, did you find marijuana?

It doesn't matter because even if the cop is mistaken they still thought they smelt it in good faith.
posted by Talez at 2:18 PM on May 17, 2011 [1 favorite]


Since we seem to be all about reading the opinion in this thread, I'm gonna go ahead and recommend maybe reading the dissent:

In no quarter does the Fourth Amendment apply with greater force than in our homes, our most private space which, for centuries, has been regarded as “‘entitled to special protection.’” Georgia v. Randolph, 547 U. S. 103, 115, and n. 4 (2006); Minnesota v. Carter, 525 U. S. 83, 99 (1998) (KENNEDY, J., concurring). Home intrusions, the Court has said, are indeed “the chief evil against which . . . the Fourth Amendment is directed.” Payton, 445 U. S., at 585 (internal quotation marks omitted); see Silverman v. United States, 365 U. S. 505, 511 (1961) (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.”). “‘[S]earches and seizures inside a home without a warrant are [therefore] presumptively unreasonable.’” Brigham City, 547 U. S., at 403 (quoting Groh, 540 U. S., at 559).
posted by blucevalo at 2:18 PM on May 17, 2011 [6 favorites]


Hah, we all found the world famous' remark very provocative it seems.
posted by clockzero at 2:19 PM on May 17, 2011


It's pretty damn crazy. In effect, it gives the cops an all-purpose, unfalsifiable excuse for kicking in doors without warrants. I'm not surprised at the ruling; but I'm a bit stunned that it was 8-1.

No, it's not crazy. It's a logical extension of the Court's Fourth Amendment jurisprudence. That's why the decision was 8-1. Everyone in the thread who is complaining about how this creates a loophole to Fourth Amendment privacy simply did not understand how scattershot the protections afforded by the Fourth Amendment's warrant requirement were in the first place.

It is well-established -- and has been well-established -- that police may enter a home without a warrant in a variety of circumstances, including circumstances that are within the subjective judgment of the police officer and that might be hard to disprove. All that is required is (1) probable cause plus (2) that an officer perceive circumstances that would cause a reasonable person to perceive that entry or other prompt action was necessary to prevent physical harm, the destruction of evidence, escape of a suspect, or some other consequences that would improperly frustrate legitimate law enforcement efforts. That's been the law for decades.

The only reason that this case reached the Court was because the Kentucky Supreme Court bucked that precedent on a very narrow issue. It basically established an exception-to-the-exceptions: namely, that the exigent circumstances exception to the Fourth Amendment's warrant requirement may not apply when it is police activity that prompts the exigent circumstances. That is, if the activity that police perceive to satisfy test #2 above is in response to lawful police activity, then there are no exigent circumstances. That doesn't make sense to me, just like it didn't make sense to eight members of the Court. After all, criminal law recognizes that a suspect's reaction to police activity is relevant in a whole host of respects in a criminal proceeding. I think every jurisdiction in the country recognizes that attempted flight is potential evidence of guilt, for example.

So, if you think the opinion is crazy because it creates huge loopholes in your privacy rights, then you should probably reconsider whether your perception privacy rights squares with the law in the first place.

In all events, the post sucks. Here's a link to a scotusblog article from before the case was argued that provides better context and some analysis.
posted by Slap Factory at 2:19 PM on May 17, 2011 [4 favorites]


It doesn't matter because even if the cop is mistaken they still thought they smelt it in good faith.

Sure it does. The whole point of the exclusionary rule is to exclude evidence discovered improperly. If no evidence is discovered, then there's nothing to exclude and I walk.
posted by The World Famous at 2:21 PM on May 17, 2011 [1 favorite]


The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.

That is pretty weak by the KY supremes. Don't see how the exigent circumstances rule is rendered inoperable by the fact that people might destroy evidence. Seems dumb.

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud as [they] could” and announced, “ ‘This is the police’ ” or “ ‘Police, police, police.’ ” Id., at 22–23. Cobb said that “[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.” Id., at 24. These noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.

That's a little bit more detail.

The Supreme Court of Kentucky reversed. 302 S. W. 3d 649 (2010). As a preliminary matter, the court observed that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” Id., at 655. But the court did not answer that question. Instead, it “assume[d] for the purpose of argument that exigent circumstances existed.” Ibid.

Dumb. Should have just ruled that the noises themselves were not probable cause.

To determine whether police impermissibly created the exigency, the Supreme Court of Kentucky announced a two-part test. First, the court held, police cannot “deliberately creat[e] the exigent circumstances with the bad faith intent to avoid the warrant requirement.” Id. , at 656 (internal quotation marks omitted). Second, even absent bad faith, the court concluded, police may not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” Ibid. (internal quotation marks omitted). Although the court found no evidence of bad faith, it held that exigent circumstances could not justify the search because it was reasonably foreseeable that the occupants would destroy evidence when the police knocked on the door and announced their presence. Ibid.

I agree with prong 1. Prong 2 is bullshit.

But a 8-1 decision? Seems pretty standard to me. The key holding is this:

For these reasons, we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment . This holding provides ample protection for the privacy rights that the Amendment protects.

The gist of their ruling is that if they did not make any moves, and the police busted in, there would have been no grounds for application of the exigent circumstances exception to the warrant requirement and the evidence would have been excluded. But by making noises that led the officers to believe that destruction of evidence would occur, they lost that ability.

Frankly, the record pointed out in the opinion is quite thin. I could live with this interpretation, but I'd need to see more factually to sign off on the decision.
posted by Ironmouth at 2:22 PM on May 17, 2011


That depends. When you busted down the door, did you find marijuana?

Doesn't matter. I'm not looking for marijuana. I'm looking for something else I can get you with. Or maybe I'm just looking to harass and intimidate you. Maybe if I don't find anything I can plant something on you?

All I have to do is tell the court that I, Honest Officer, smelled marijuana coming from your house, heard movement within that suggested the destruction of evidence. Then, suddenly, my door-kicking is perfectly legal and anything I find in your house (or anything I plant in your house) is admissible. Whether or not you actually smoke weed is immaterial.

If no evidence is discovered, then there's nothing to exclude and I walk.

Again, if I don't like you and I want to make your life miserable, I'm sure I can find something. Barring that, I can plant something. Or I can arrest you for resisting arrest. Or for obstructing justice.

Christ, we are so far down the rabbit hole that we don't even remember what the sunlight looks like.
posted by Avenger at 2:24 PM on May 17, 2011 [2 favorites]


It's straining belief to think that courts would allow extending this ruling to someone who was using a laptop or doing nothing in the absence of other evidence.

But they won't do that. Instead, the courts will straightforwardly apply the ruling to cases in which the police claim that they heard movement after they knocked on the door and announced themselves. Then the police will perform a protective sweep and plain view search. They will frisk and briefly interrogate everyone in the house. For a lot of people, that's going to lead to something incriminating. At the very least it will be an embarrassing intrusion, one that can easily be abused by the police to lean on people they don't like.

Sure it does. The whole point of the exclusionary rule is to exclude evidence discovered improperly. If no evidence is discovered, then there's nothing to exclude and I walk.

Right, no other harm done by the unjustified entry into the house, the search, the frisking, and the interrogation. No harm to your reputation or your relationship with family or friends who may have been at the house at the time and thus subject to being frisked and interrogated. Not to mention the cost of replacing the door.
posted by jedicus at 2:24 PM on May 17, 2011 [2 favorites]


In any event, the case was remanded, not just reversed, so the KY Supremes will apparently have the opportunity to reexamine the exigency issue anyway.
posted by Gator at 2:25 PM on May 17, 2011


So, if you think the opinion is crazy because it creates huge loopholes in your privacy rights, then you should probably reconsider whether your perception privacy rights squares with the law in the first place.

See, this is absolutely true but it's still bad news. Telling people not to get worked up about a SCOTUS ruling because the 4th amendment has been dead for decades isn't exactly, uh, an American attitude to have about these things.
posted by Avenger at 2:25 PM on May 17, 2011 [1 favorite]


The only reason that this case reached the Court was because the Kentucky Supreme Court bucked that precedent on a very narrow issue. It basically established an exception-to-the-exceptions: namely, that the exigent circumstances exception to the Fourth Amendment's warrant requirement may not apply when it is police activity that prompts the exigent circumstances.

Actually, no.
Over the years, lower courts have developed an exception to the exigent circumstances rule, the so-called “police-created exigency” doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was “created” or “manufactured” by the conduct of the police. See, e.g., United States v. Chambers , 395 F. 3d 563, 566 (CA6 2005) (“[F]or a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves”); United States v. Gould , 364 F. 3d 578, 590 (CA5 2004) (en banc) (“[A]lthough exigent circumstances may justify a warrantless probable cause entry into the home, they will not do so if the exigent circumstances were manufactured by the agents” (internal quotation marks omitted)).

In applying this exception for the “creation” or “manufacturing” of an exigency by the police, courts require something more than mere proof that fear of detection by the police caused the destruction of evidence. An additional showing is obviously needed because, as the Eighth Circuit has recognized, “in some sense the police always create the exigent circumstances.” United States v. Duchi , 906 F. 2d 1278, 1284 (CA8 1990).
It appears that has been around for at least 21 years and is endorsed by three separate circuits, at minimum. I think there is a good reason to not allow the police's mere appearance at the door create the circumstances. The question is, of course, what test to apply.
posted by Ironmouth at 2:27 PM on May 17, 2011


When the police will perform a protective sweep and plain view search. They will frisk and briefly interrogate everyone in the house.

And shoot your dog. C'mon, it's only a dog; it's a small price to pay to catch somebody who might be smoking the devil's weed!
posted by entropicamericana at 2:27 PM on May 17, 2011 [2 favorites]


That is pretty weak by the KY supremes.

Thank you for providing me with the name for my next band. The KY Supremes will be awesome.
posted by The World Famous at 2:27 PM on May 17, 2011


Doesn't matter. I'm not looking for marijuana. I'm looking for something else I can get you with. Or maybe I'm just looking to harass and intimidate you. Maybe if I don't find anything I can plant something on you?

All I have to do is tell the court that I, Honest Officer, smelled marijuana coming from your house, heard movement within that suggested the destruction of evidence. Then, suddenly, my door-kicking is perfectly legal and anything I find in your house (or anything I plant in your house) is admissible. Whether or not you actually smoke weed is immaterial.


it is most certainly not "perfectly legal" for an officer to lie. And none of the courts have actually ruled that there were exigent circumstances here. That decision has not been made by any court yet. This is just an argument over what test is going to be used. If the movement is or is not enough to generate the exigent circumstances is something that the lower court is now going to decide.
posted by Ironmouth at 2:30 PM on May 17, 2011


Again, if I don't like you and I want to make your life miserable, I'm sure I can find something. Barring that, I can plant something. Or I can arrest you for resisting arrest. Or for obstructing justice.

Christ, we are so far down the rabbit hole that we don't even remember what the sunlight looks like.


The only person down a rabbit hole here is you, because with these extra added facts, that are not part of any record, you are digging that hole.
posted by Ironmouth at 2:34 PM on May 17, 2011


There seems to be a split here. One view is that this case is not that big of a deal, and that the ruling was narrow and correct. The post linked to by Slap Happy is a good example:
In Kentucky v. King, I think it suggests a need for a narrow holding: Not a one-size-fits-all test for police-created exigent circumstances, but rather something more for the specific facts of this case. For that reason, I tend to support the test offered in King’s brief starting at Page 22 that the police create exigent circumstances when a reasonable person would believe that the police are about to conduct a forcible search — and the facts alleged to create the exigency are the natural byproduct of that perception.
The other view is that this has broader implications. From the NPR article:
In practice, says George Washington University law professor Stephen Saltzburg, the decision means that "whenever the police have suspicion that there is drug activity going on in a particular apartment or house and they knock and they hear movement inside and any reasonable delay in opening the door, they are going to break it in."

Saltzburg, author of a leading text on criminal law, says the decision resolves conflicting decisions in the lower courts. "It provides greater clarity to the police as to what they are permitted to do, and it provides less protection for homes and apartments than a lot of people thought they had and think they should have," he says.
So which is it?
posted by AceRock at 2:34 PM on May 17, 2011


it is most certainly not "perfectly legal" for an officer to lie.

I don't think he is assuming the cop is going to tell the judge he lied.
posted by furiousxgeorge at 2:35 PM on May 17, 2011 [2 favorites]


The cops argued that the smell of marijuana was what gave them probably cause. Just out of curiosity: is it SOP for street-level drug dealers who have just fled the scene of a police buy and are getting ready to flush their product down the toilet to, before they get started, light up a fatty?
posted by steambadger at 2:35 PM on May 17, 2011 [2 favorites]


That this incredibly stupid, anti-constitutional ruling got an 8-1 majority demonstrates that the elites on the the right and now even the left have become terrified of the populace as a whole--aka the underclass-- and are prepared to allow the police to go to any lengths in order to help themselves feel safe from that underclass.
posted by jamjam at 2:35 PM on May 17, 2011


The only person down a rabbit hole here is you, because with these extra added facts, that are not part of any record, you are digging that hole.

Cops lying and planting evidence is an imaginary issue?

Oh rich white people, never change.
posted by furiousxgeorge at 2:36 PM on May 17, 2011 [7 favorites]


Cops lying and planting evidence is an imaginary issue?

It's not an imaginary issue generally. Do you think it's an issue in this case?
posted by The World Famous at 2:39 PM on May 17, 2011


But they won't do that. Instead, the courts will straightforwardly apply the ruling to cases in which the police claim that they heard movement after they knocked on the door and announced themselves.

Counselor, there has been no decision of the sort in this case. The lower court has not ruled on whether exigent circumstances even exist. As you know, some factual situations will end up being ruled as exigent circumstances having existed and some others will find no such circumstances existed.
posted by Ironmouth at 2:40 PM on May 17, 2011


While I know the Supreme Court is unlikely to see it this way, I have real trouble extending good faith to the police as long as the police have the financial motive of asset seizure and forfeiture to find drugs anywhere they look. As a practical matter, it bothers me that the increasingly lenient scrutiny of warrantless searches and other police actions never seems to consider this matter.

Protection against corrupt police is the sort of reason we have the Fourth Amendment in the first place. The courts seem to have forgotten than.
posted by immlass at 2:41 PM on May 17, 2011 [4 favorites]


It's not an imaginary issue generally. Do you think it's an issue in this case?

I think if it was, we would have no way to prove it.
posted by furiousxgeorge at 2:41 PM on May 17, 2011


The only person down a rabbit hole here is you, because with these extra added facts, that are not part of any record, you are digging that hole.

Cops lying and planting evidence is an imaginary issue?

Oh rich white people, never change.


Seriously, please indicate where in the factual record of the case exists any evidence that the police lied about the case. I'll take a cut and paste from the opinion, please.
posted by Ironmouth at 2:42 PM on May 17, 2011


You don't need to prove it. You could smell him lying and knock down his thin blue line.
posted by It's Raining Florence Henderson at 2:42 PM on May 17, 2011 [2 favorites]


I think if it was, we would have no way to prove it.

If you think it is one of the issues of the case, you can prove it by citing the part of the opinion that you think considers the issue.
posted by The World Famous at 2:43 PM on May 17, 2011


"I didn't come to the door because I smelled pot, I thought the officers might be dangerously high on drugs."
posted by furiousxgeorge at 2:43 PM on May 17, 2011 [2 favorites]


It's not an imaginary issue generally. Do you think it's an issue in this case?

I think if it was, we would have no way to prove it.


Therefore, you have no basis for bringing it up here.

There's a point to be made. And that is this--if a cop lies on the stand, it has nothing to do with the proper test for the fourth amendment. It is a perjury case. And you know what, there is a list in almost every jurisdiction of police officers that the DA or US attorney will not bring cases with because they are believed to be not trustworthy. In DC its hundreds of names long and it is called the Lewis list. Stop assuming and start learning.
posted by Ironmouth at 2:45 PM on May 17, 2011 [1 favorite]


Yes, our legal system sure does a great job keeping cops from misbehaving, thanks for the lesson Ironmouth!
posted by furiousxgeorge at 2:48 PM on May 17, 2011 [4 favorites]


it is most certainly not "perfectly legal" for an officer to lie.

Are you a lawyer, Ironmouth? I get the feeling that you are.

I've noticed that many lawyers develop a certain kind of myopia about the law. A kind of tunnel vision, if you will. I guess that's a good thing if your job is to parse legal reasoning for hours on end. A necessary thing, even.

For you, this SCOTUS ruling is a series of logical, technical arguments, some of which have been determined by the court to be more weighty or correct than others. Real life has nothing to do with it. The 18 year old black kid who got a rock of crack cocaine planted on him by a cop because he gave the cop a dirty look earlier in the day has nothing to do with it.

The only person down a rabbit hole here is you, because with these extra added facts, that are not part of any record, you are digging that hole.

Yes, Ironmouth, I'm introducing facts not in evidence. I can do that here on Metafilter. Stop treating this website like it's your own personal fucking courtroom.

The truth is, this is not a sterile discussion about the minutiae of criminal law. American citizens are being abused and harassed by this nation's legal system. Some because of their skin color, others for being poor, others for being gay, many for no reason at all. It's happening, but you don't care. After all, that's not the specific issue being addressed in this case. Besides, all those poor and black people can seek remedy through the courts, like they always have. Sure, our courts are racist. Sure, the decks are stacked against them. But hey, it's the best we've got, right? America is great! America is fine!

America is not great. America is not fine. The outrage in this thread is from the fact that our government and it's legal system are steadily growing more repressive, especially towards those who can least defend themselves. This is not an academic issue to us non-lawyers. This is a deeply personal, intense issue which affects all of us, daily.

The fact that you are blind to this, the fact that nothing exists in Ironmouth's universe until it's been submitted as evidence in a court of law, speaks volumes to your blindness. This ruling will be used as a bludgeon against the poor, the weak, the helpless, the underclass. I understand that it's not your job to consider the social ramifications of SCOTUS rulings. I really do. But they do have ramifications and I'm laying some of them out for you.

America is broken, Ironmouth. America is horribly, terribly broken and it's getting worse.
posted by Avenger at 2:48 PM on May 17, 2011 [35 favorites]


"I didn't come to the door because I smelled pot, I thought the officers might be dangerously high on drugs."

Fine, furiousxgeorge. We won't exclude the evidence you discovered by not answering the door.
posted by The World Famous at 2:48 PM on May 17, 2011


^ Was referncing It's Raining Florence Henderson's comment.
posted by furiousxgeorge at 2:50 PM on May 17, 2011


This is fucking infuriating and I'm afraid that's all I have to contribute at the moment because I'm about this close to foaming at the mouth.
posted by six-or-six-thirty at 2:56 PM on May 17, 2011


I've noticed that many lawyers develop a certain kind of myopia about the law.

I've noticed that many non-lawyers think they know what they're talking about when discussing the law but actually have no idea.

For you, this SCOTUS ruling is a series of logical, technical arguments, some of which have been determined by the court to be more weighty or correct than others. Real life has nothing to do with it.

SCOTUS opinions are written specifically, expressly, and exclusively for the purpose of providing logical, technical arguments for future use by lawyers and courts. That's it.

The truth is, this is not a sterile discussion about the minutiae of criminal law.

The truth is, the Supreme Court's decisions are sterile discussions about the minutiae of criminal law.

The outrage in this thread is from the fact that our government and it's legal system are steadily growing more repressive, especially towards those who can least defend themselves.

That outrage is correct. But don't be surprised when people who actually want to discuss the Supreme Court's decision think you're off-base when your discussion goes where, by your own admission, it is unrelated to the legal analysis of the minutiae of criminal law contained in the Supreme Court decision that is the subject of the FPP.

The fact that you are blind to this, the fact that nothing exists in Ironmouth's universe until it's been submitted as evidence in a court of law, speaks volumes to your blindness.

Ironmouth's not blind to it. He's discussing the Supreme Court opinion while you're discussing something else. And you're criticizing him for being capable of discerning what the Supreme Court's opinion is actually about.
posted by The World Famous at 2:57 PM on May 17, 2011 [2 favorites]


The truth is, this is not a sterile discussion about the minutiae of criminal law.

This is a post about Kentucky v. King. Its not about hypos, made up facts, stuff you found on the bottom of your shoe. How can we have a reasonable discussion when you are just spouting hyperbole? Made up stuff? I'm sorry you don't like that I ask you to support the facts you have. But that's what I do here. I cite facts. I go and link to shit in my responses. Read over my posting history. You'll see that I have opinions, yes, but that I try my ass off to bring facts to the table.

The fact that you are blind to this, the fact that nothing exists in Ironmouth's universe until it's been submitted as evidence in a court of law, speaks volumes to your blindness. This ruling will be used as a bludgeon against the poor, the weak, the helpless, the underclass. I understand that it's not your job to consider the social ramifications of SCOTUS rulings. I really do. But they do have ramifications and I'm laying some of them out for you.

Really? What is your actual real vast experience with the criminal law? Please tell me. Because reading blogs don't count.

Ever tried a criminal case? Been a defendant in one? Because this is the problem with the internet and arguments like this, its full of uninformed opinion, dressed up as "facts."

America is more repressive now then when? 1845? 1890? 1910? 1944? 1965? Please enlighten me as to the source of these "facts" that you have. Because, unlike the internet, facts count in the real world out there. In real criminal cases. That actually exist.

Have you ever tried a criminal case?

Didn't think so.
posted by Ironmouth at 3:00 PM on May 17, 2011 [1 favorite]


future use

You mean in situations where some facts of the case might be different? Well, God forbid we discuss such possible scenarios.
posted by furiousxgeorge at 3:00 PM on May 17, 2011


The 18 year old black kid who got a rock of crack cocaine planted on him by a cop

This ruling isn't going to have any effect on that sort of thing one way or another. For everybody who thinks this is going to encourage cops to lie more -- how, specifically, do you think that's going to work? Because if a cop can decide to lie about smelling marijuana in order to knock on the door (not knock it down, just knock on the door, which is what happened here, after which things escalated), what was previously stopping that same cop from lying about smelling marijuana in order to gain a warrant for the same purpose?

(Ironmouth and TWF, I may not always agree with you but I appreciate the way you speak to the actual legal documents and realistic impressions of the precedents being set rather than just grargrarSCOTUSsuxxors.)
posted by Gator at 3:01 PM on May 17, 2011


You mean in situations where some facts of the case might be different? Well, God forbid we discuss such possible scenarios.

Discuss them all you want. But acknowledge that they are, by definition, distinguishable from this case and that, therefore, the extent to which this precedent would apply is arguable at best.
posted by The World Famous at 3:03 PM on May 17, 2011



what was previously stopping that same cop from lying about smelling marijuana in order to gain a warrant for the same purpose?


The pain in the ass. Without it of course they will look more.

Discuss them all you want. But acknowledge that they are, by definition, distinguishable from this case and that, therefore, the extent to which this precedent would apply is arguable at best.

It is your opinion that this case would have resulted in a different decision had all the facts been the same, but the cop lied about some of them?
posted by furiousxgeorge at 3:05 PM on May 17, 2011


future use

You mean in situations where some facts of the case might be different? Well, God forbid we discuss such possible scenarios.


Lets be very clear. This hasn't even decided whether or not in this case the search was legal. It is merely a battle over what standard to use.
posted by Ironmouth at 3:06 PM on May 17, 2011


It is your opinion that this case would have resulted in a different decision had all the facts been the same, but the cop lied about some of them?

Without question. If that additional fact were part of those considered by the Supreme Court, the opinion and outcome would have been completely different.
posted by The World Famous at 3:08 PM on May 17, 2011


It is your opinion that this case would have resulted in a different decision had all the facts been the same, but the cop lied about some of them?

Uh, if it had been shown there was lying, we wouldn't be discussing it.

What exactly is your problem with the legal standard laid out in this case which is this:

exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment .
posted by Ironmouth at 3:08 PM on May 17, 2011


America is more repressive now then when?

It's more repressive now than last week, before this ruling was passed.

Have you ever tried a criminal case?

Didn't think so.


No, sorry, you don't get to do this. Lawyers aren't the only ones entitled to have opinions about the law.

Anyway, enjoy the rest of your thread, Ironmouth. I'm sure that when SCOTUS inevitably rules that homosexuals aren't entitled to equal rights under the Constitution you'll have a very cogent and interesting take on their use of Wilson Grain Co. v. Dunlop Haberdashers, Inc. (1809) in Section III, subparagph 97.
posted by Avenger at 3:09 PM on May 17, 2011 [8 favorites]


It is your opinion that this case would have resulted in a different decision had all the facts been the same, but the cop lied about some of them?

Without question. If that additional fact were part of those considered by the Supreme Court, the opinion and outcome would have been completely different


The fact that you have to disingenuously assume I'm suggesting the cop got caught in the lie is telling. The answer of course is that if the cop lied he would likely not have gotten caught and we have the same result.
posted by furiousxgeorge at 3:10 PM on May 17, 2011


How exigent is something when there is no violence being perpetrated? Christ, they make it sound like a baby† is about to be murdered.

"It was an exigent circumstance! We thought he might be impairing his motor coordination somewhat!"

† The baby may or may not grow up to be the next Hitler and/or cure cancer. How does THAT weigh on your decision?
posted by Eideteker at 3:11 PM on May 17, 2011 [3 favorites]


No, sorry, you don't get to do this. Lawyers aren't the only ones entitled to have opinions about the law.

Of course not. But you have to be able to rationally tell me why you think these things are true with evidence to support your claim if you want to be taken seriously. All I'm saying is don't spout things off without being able to support them.

Anyway, enjoy the rest of your thread, Ironmouth. I'm sure that when SCOTUS inevitably rules that homosexuals aren't entitled to equal rights under the Constitution you'll have a very cogent and interesting take on their use of Wilson Grain Co. v. Dunlop Haberdashers, Inc. (1809) in Section III, subparagph 97.

But these "minutae" are exactly what gives people their rights in real world situations. They are very important and thousands of people have evidence suppressed by courts every year, and have their rights vindicated.
posted by Ironmouth at 3:15 PM on May 17, 2011 [1 favorite]


Police: "Knock, knock."
Me: "Who is it?"
Police: "Police. Open up."
Me: "Come back later. I'm doing the dishes."
Police: "Ok..."

Works every time.
posted by I'm Doing the Dishes at 3:15 PM on May 17, 2011 [7 favorites]


The fact that you have to disingenuously assume I'm suggesting the cop got caught in the lie is telling. The answer of course is that if the cop lied he would likely not have gotten caught and we have the same result.

I guess if you want to assume that every cop lies in every single evidentiary hearing, despite the fact that thousands of criminal defendants win their cases on suppression motions every year, there's nothing we can do to stop you.
posted by Ironmouth at 3:17 PM on May 17, 2011


Police: "Knock, knock."
Me: "Who is it?"
Police: "Police. Open up."
Me: "Come back later. I'm doing the dishes."
Police: "Ok..."

Works every time.


Under the standard of this case, it would work.
posted by Ironmouth at 3:17 PM on May 17, 2011


Put another way, the rule for everyone is this. If the police knock and want to search without a warrant, do nothing, but verbally deny them entry.
posted by Ironmouth at 3:18 PM on May 17, 2011 [1 favorite]


Ironmouth, what do you think of what these law professors quoted in the NPR article think?
Philip Heymann, former head of the U.S. Justice Department's Criminal Division and now a professor at Harvard Law School, says the standard laid out in Monday's decision will be very tempting for law enforcement officers to abuse — namely, allowing police to break in and search without a warrant when they knock on the door and hear sounds suggesting destruction of evidence. "That is a very fuzzy, indeterminate, easily faked — if the policeman wants to — test, when drugs have afterwards been found," says Heymann.

And that, says University of Chicago law professor Bernard Harcourt, will mean a different set of police imperatives. "Once there is probable cause to believe that there are drugs in a home — and in this case the probable cause was the smell of marijuana emanating from the home ... the police no longer need to stop and think about whether they should get a warrant."
posted by AceRock at 3:22 PM on May 17, 2011 [1 favorite]


This is all besides the point but if we want to talk about lying and where to find it try here:

"Respondent argues that the officers “demanded” entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion."

Unless the respondent has a tape recorder it becomes the word of a drug user against a officer.
posted by Shit Parade at 3:29 PM on May 17, 2011



I guess if you want to assume that every cop lies in every single evidentiary hearing, despite the fact that thousands of criminal defendants win their cases on suppression motions every year, there's nothing we can do to stop you.


I assume that they may be lying. In situations like drug searches, in which it has been shown repeatedly that officers are willing to lie, it is best to err on the side of protecting citizens rather than law enforcement.
posted by furiousxgeorge at 3:31 PM on May 17, 2011 [1 favorite]


Unless the respondent has a tape recorder it becomes the word of a drug user against a officer.

That's okay, it's illegal to record the police (in many states) anyway! Enjoying your freedom yet, citizens?
posted by entropicamericana at 3:31 PM on May 17, 2011 [4 favorites]


That reads to me more like Respondent was trying to assert facts not in evidence, and that there was never even an allegation in the original trial of the officers "demanding" entry and it was just a word that was (vaguely and contradictorily) included in one of the lower courts' opinions.
posted by Gator at 3:32 PM on May 17, 2011


Also, looking back over the argument transcript, I recall that the question of whether or not there was actually a demand for entry prior to the exigency got hashed out (though the Lil' Lawyer Brigade they had arguing the case didn't do very well on that issue, either).
posted by Gator at 3:36 PM on May 17, 2011


One well-recognized exception applies when “ ‘the exigencies of the situation’ make the needs of law en-forcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment .” Mincey v. Arizona , 437 U. S. 385, 394 (1978) ; see also Payton , supra, at 590 (“[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant”).


"Exigent Circumstances" is where people should be focusing their attention. It seems, from reading the majority opinion, that exigent circumstances are lawful when an objective observation of the facts would render them reasonable (as opposed to unreasonable).

"The reasons for looking to objective factors, rather than subjective intent, are clear. Legal tests based on reasonableness are generally objective, and this Court has long taken the view that “evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” Horton , supra, at 138."

I can't tell, so far, from reading the decision, if the mere smell of pot allows for police to enter the home, or if they have to also be in search of a suspect.
posted by Shit Parade at 3:37 PM on May 17, 2011


Unless the respondent has a tape recorder it becomes the word of a drug user against a officer.

Why are you assuming that the defendant is a drug user in cases where a cop falsely claims to have smelled marijuana?
posted by The World Famous at 3:38 PM on May 17, 2011


Legal tests based on reasonableness are generally objective

That, right there, is the biggest fiction in American jurisprudence, and always has been.
posted by The World Famous at 3:40 PM on May 17, 2011 [1 favorite]


Enjoying your freedom yet, citizens?

Pick up that can.
posted by ryoshu at 3:40 PM on May 17, 2011 [1 favorite]


Of course cops lying is a concern here - and should rightly be of great relevance to the SCOTUS. It's essentially bound with it. Practical consequences matter, because we live in a real world, not a hypothetical world. The very point of writing in protections for citizens is precisely because the founding fathers knew from history and/or their own experiences that a law that relies exclusively on the agents of the state always behaving perfectly is a law that will fail in practice. As has been said: "if people were perfect, we wouldn't need protective laws in the first place". So chipping away at citizens protections against state agents, with the only safety mechanism being the assumption that LEOs would never lie (or per the recent Indiana case "seek remedy later"), is to ignore that very hard won historical wisdom that led to the protections being there, including protections that were meant to be interpreted intentionally broadly (even at the cost of the occasional guilty going free). When the SCOTUS starts interpreting the protections ever more narrowly while expanding the oppressive powers of the state every chance it gets, it leads us back to the same bag of "fuck you" that gave rise to this bitter observation: "the law forbids rich and poor alike to sleep under bridges". "You just made it trivially easy for any cop who is not a saint, to lie, and made it extremely difficult to seek remedy" "Oh, that's not my problem, the law says what it says, and we can't assume the cops will lie, and if they do, oh well, you can complain later".
posted by VikingSword at 3:41 PM on May 17, 2011 [4 favorites]


Why are you assuming that the defendant is a drug user in cases where a cop falsely claims to have smelled marijuana?

Why are you continuing to post this kind of disingenuous bullshit that pretends you are unaware of how our legal system treats the accused?
posted by furiousxgeorge at 3:44 PM on May 17, 2011


What exactly is your problem with the legal standard laid out in this case which is this:

exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment .


exigent circumstances rule: the rule saying cops can enter your home under certain circumstances without a warrant and without violating your 4th amendment rights

So let's be "clear": the rule saying the cops can come in without a warrant and without violating your 4th Amendment rights applies when the police didn't threaten to violate your 4th Amendment rights or actually violate your 4th Amendment rights. So...if they didn't violate my 4th Amedment rights, they didn't violate my 4th Amendment rights? Gee, thanks for the deep decision, SCOTUS. I can see why you tossed out a bunch of lower-court tests to propose your brilliant standard instead.

Really, my issue with it (aside from that poor wording) is that it takes the incredibly naive view that law-abiding citizens have no reason to feel or act threatened by cops knocking on their door, and that a cop knocking on your door and shouting "It's the police!" does not carry any implication of "...so open up!" whatsoever. This sounds like legal fantasyland with no basis in real-world experience.

Also, I want to point out, that by the time your court case gets to the point where the evidence is being thrown out or not thrown out based on the legality of the search, your life is most likely already a trainwreck, unless you had a pretty solid safety net to begin with. "It'll all get sorted out in court" is cold comfort to most folks (who aren't lawyers). This is why any decision like this, which may rightly or wrongly (as police are not always as expert on the law as one might like to think) lead to police making less effort to get warrants, is *bad*. Likewise, the courts getting that pesky cop for perjury several weeks or months afterwards is not going to make up for the fact that you spent those several weeks or months in jail; this is why obstacles to the usefulness of perjury, things that remove the temptation to perjure, are a hell of lot more useful than the blind faith that all perjuring cops will get theirs eventually. An ounce of prevention is worth a pound of cure.

Ironmouth and/or TheWorldFamous, perhaps you would be willing to explain to me where and how you disagree with the dissenting opinion? I found it to be spot-on, personally.
posted by mstokes650 at 3:47 PM on May 17, 2011 [3 favorites]


I said drug user, because the case at hand has substantial material evidence to suggest those in the home are drug users.

So far I am leaning in the direction that the decision here is actually very narrow -- that it mostly clarifying the "police-created exigency doctrine"

"We now apply our interpretation of the police-created exigency doctrine to the facts of this case."

see also:
Some lower courts have adopted a rule that is similar to the one that we recognize today. See United States v. MacDonald , 916 F. 2d 766, 772 (CA2 1990) (en banc) (law enforcement officers “do not impermissibly create exigent circumstances” when they “act in an entirely lawful manner”); State v. Robinson , 2010 WI 80, ¶32, 327 Wis. 2d 302, 326–328, 786 N. W. 2d 463, 475–476 (2010). But others, including the Kentucky Supreme Court, have imposed additional requirements that are unsound and that we now reject.

Bad faith . Some courts, including the Kentucky Supreme Court, ask whether law enforcement officers “ ‘deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.’ ” 302 S. W. 3d, at 656 (quoting Gould , 364 F. 3d, at 590); see also, e.g., Chambers , 395 F. 3d, at 566; United States v. Socey , 846 F. 2d 1439, 1448 (CADC 1988); United States v. Rengifo , 858 F. 2d 800, 804 (CA1 1988).
posted by Shit Parade at 3:49 PM on May 17, 2011


Why are you continuing to post this kind of disingenuous bullshit that pretends you are unaware of how our legal system treats the accused?

In a case where no drugs or evidence of drugs is found (and, therefore, no evidence that might be subject to the exclusionary rule in the first place), there will also be no evidence to corroborate the cop's claim to have smelled marijuana. In a case where evidence of marijuana possession and/or use is found (and, therefore, the subject of the exclusionary rule challenge), it would be ridiculous to pretend that is implausible that a cop would have smelled it.

It's not disingenuous to ask why, if there is no evidence of drug use, you would assume that the defendant is a drug user. And if there is evidence of drug use (i.e. the evidence that the defendant seeks to exclude), does that not tend to corroborate the allegation that the cop smelled the drugs?
posted by The World Famous at 3:51 PM on May 17, 2011


My issue is the fantasy that the prosecutors and court won't be inclined to view anyone accused of drug use as a drug user.
posted by furiousxgeorge at 3:54 PM on May 17, 2011


I am a little confused TWF, in the case you are discussing I believe I wouldn't refer to the defendant as a drug user? I didn't assume the defendant is a drug user, but in this instance KENTUCKY-V-KING), the defendant has been convicted of drug possession?

Personally, the recent supreme court of IN decision that allows officers to force themselves into your home is much worse. I certainly want that decision to be overturned by the SCOTUS.
posted by Shit Parade at 3:56 PM on May 17, 2011


You're right, Shit Parade.

My issue is the fantasy that the prosecutors and court won't be inclined to view anyone accused of drug use as a drug user.

Ah. My issue is the strange assumption that it is at all likely that someone would be accused of marijuana use if there is no evidence found that could corroborate the allegation that a cop smelled marijuana.
posted by The World Famous at 3:59 PM on May 17, 2011


Anyway, I rather get back to the case, is there a current list of "exigent circumstances" that are considered "objectively" reasonable for an officer to enter a home without a warrant?

Again, to me this what this case is about, KC and other states had an exception to exigent circumstances which was, from what i can tell, somewhat convoluted, here the SCOTUS has denied those exceptions and have reaffirmed their doctrine of exigent circumstances. The question remains, what is currently seen as "objectively" reasonable for exigent circumstances to be invoked?
posted by Shit Parade at 4:00 PM on May 17, 2011


Ah. My issue is the strange assumption that it is at all likely that someone would be accused of marijuana use if there is no evidence found that could corroborate the allegation that a cop smelled marijuana.

Well of course there was no evidence, the suspect destroyed it, the cop was right there and heard the whole thing happen.
posted by furiousxgeorge at 4:01 PM on May 17, 2011


If there's no evidence in your hypothetical, furiousxgeorge, what is your hypothetical defendant seeking to exclude as evidence?
posted by The World Famous at 4:02 PM on May 17, 2011


I am not basing my argument here on the idea the assumption that the officer will not have planted evidence to back up the lie.
posted by furiousxgeorge at 4:11 PM on May 17, 2011


furiousxgeorge, we all know that there are bad cops who lie and plant evidence. They've been doing it for centuries. It's getting harder for them to get away with, thankfully, but we all know it still happens. We all agree it's heinous and they should be punished when they get caught.

What I fail to understand is how you think this ruling will make it easier for bad cops to do this, or harder for defendants to bring up in their defense at trial.
posted by Gator at 4:14 PM on May 17, 2011


If only police had to pay a price for false positives many of these abuses would be non-issues.

If there's no evidence in your hypothetical, furiousxgeorge, what is your hypothetical defendant seeking to exclude as evidence?

Whatever non-drug crime was discovered.
posted by a robot made out of meat at 4:14 PM on May 17, 2011


It's getting harder for them to get away with,

hahahahahahahaahahahahahahahaha
posted by furiousxgeorge at 4:15 PM on May 17, 2011 [1 favorite]


Sorry for that, but the War on Drugs is the biggest breakthrough in "easy to lie and plant evidence" in the history of mankind.
posted by furiousxgeorge at 4:16 PM on May 17, 2011


Perhaps you're unfamiliar with a gentleman named Rodney King? Video cameras alone have served to curb a ton of police misconduct. All sorts of other things have developed in the past few decades with which citizens can protect themselves against such things. How about answering my question?
posted by Gator at 4:17 PM on May 17, 2011


All I have to do is put some sugar in a ziplock and I can accuse you of possession of an imitation controlled substance, no camera is going to prevent it.
posted by furiousxgeorge at 4:19 PM on May 17, 2011


True. How is that more true today, with this ruling, than it was last week?
posted by Gator at 4:20 PM on May 17, 2011


I think if you need more information on that particular point of view you should take a look at the quotes from Philip Heymann posted above.
posted by furiousxgeorge at 4:21 PM on May 17, 2011


Gator -- I think you're stepping on tenuous ground here. Have you examined the incarceration statistics of young black males? It is a ghetto, and, to godwin the thread, life as a young poor black is nearly no better than being a ww2 jew.
posted by Shit Parade at 4:22 PM on May 17, 2011


No, the point I've been trying to make is that bad cops already lie and plant evidence. This ruling doesn't make it any easier for them to do that. If a bad cop is going to lie about smelling marijuana or hearing suspicious noises in order to gain entry, he could do it last week just as easily as he can do it now. If he's going to plant evidence after gaining entry, he could do it last week just as easily as he can do it now. I don't see how this ruling has any practical effect on that particular kind of injustice.
posted by Gator at 4:28 PM on May 17, 2011


This ruling allows "bad" cops to more easily gain access to your home without any repercussions.
posted by Shit Parade at 4:31 PM on May 17, 2011 [1 favorite]


People keep saying that, and I keep asking "how?" Last week, a bad cop could lie about about smelling drugs, get a warrant, break down the door, plant drugs where there were none. This week, a bad cop can lie about smelling drugs, lie about hearing suspicious noises, break down the door and plant drugs where there were none. What's the practical difference here? Since we're wanting to focus on the practical effects this will have on real people, rather than debate the grand legal theories.
posted by Gator at 4:36 PM on May 17, 2011 [1 favorite]


So what if a cop claims to smell marijuana, claims to hear movement, busts in, and finds nothing? So what? As long as the occupant doesn't file a report, no judge is ever going to hear about it, no record is made, there is zero accountability for the cop.

So can't the cops just bust down doors until they find marijuana? Or what if they find no marijuana but some other kind of contraband? Won't that hold up?
posted by callmejay at 4:38 PM on May 17, 2011 [1 favorite]


Exactly, callmejay. People don't seem to understand the exclusionary rule.
posted by The World Famous at 4:40 PM on May 17, 2011


"get a warrant" I think is the practical difference.
posted by Shit Parade at 4:43 PM on May 17, 2011 [1 favorite]


So can't the cops just bust down doors until they find marijuana? Or what if they find no marijuana but some other kind of contraband? Won't that hold up?

Well, no.
posted by anigbrowl at 5:19 PM on May 17, 2011


I overhear discussion of drugs in this thread; I might need to bust your door down.
posted by a robot made out of meat at 5:20 PM on May 17, 2011


I think the cops are just bummed cause no one ever offers them a bowl.
posted by It's Raining Florence Henderson at 5:23 PM on May 17, 2011


Place your hands on the yellow circles and spread your legs.
posted by seanmpuckett at 5:24 PM on May 17, 2011 [1 favorite]


Please correct me if I'm wrong, but did the SCOTUS just make the persuit for prosecution of a non violent crime into something with great potential for lethality?

It sounds like an invitation to a Mexican Standoff to me.

The "Scales of Justice" are broken.
posted by snsranch at 5:24 PM on May 17, 2011


Well, no.

Huh. Well that's good, at least.
posted by callmejay at 5:27 PM on May 17, 2011


They are serpent scales.
posted by It's Raining Florence Henderson at 5:28 PM on May 17, 2011


According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011.
posted by Bernt Pancreas at 5:38 PM on May 17, 2011


Sheesh, is everybody here on those drug guys side?
posted by telstar at 5:41 PM on May 17, 2011


Not me. I'm on the side of justice. Which just happens to not be on the warrantless search side.
posted by It's Raining Florence Henderson at 5:44 PM on May 17, 2011


Thanks for the Wise Latina and the former Solicitor General, President Obama!

Like Hillary, they've proven that just because you're a women, you don't have to be a soft-on-crime liberal!

In fact, like your whole administration, you've proven that just because you call yourself a Democrat doesn't mean you can't produce outcomes indistinguishable from Richard Nixon!
posted by orthogonality at 6:12 PM on May 17, 2011


Nixon wouldn't have dared.
posted by It's Raining Florence Henderson at 6:13 PM on May 17, 2011 [2 favorites]


OK, look here, practical example happening literally right now as I type.

Mrs Primate is at a city council hearing about funding for schools. There is no money. Pre K gone, kindergarten slashed to half day, no more bus monitors, no and that means no after school programs and oh yeah, the laid off 700 teachers last Friday.

But, the town in which I live has the highest paid police and firefighters in the entire country.. THAT's where the money went: to cops whose pensions are determined by their entire pay package including overtime. There are more than 20 making more than 200K in retirement after 20 years. And only 20% of our cops and firefighters even live in our city.

Cops and firefighters should be paid well. Schools should, I don't know, maybe have teachers too?

So, anyway this ruling, to a corrupt police system, is carte blanche to come to MY door because of what my wife is saying in city council chambers RIGHT NOW and kick down my fucking door because their fucking 6 figure salaries and pensions are at stake.

And that's what this shit is about. There is literally no way to stop police intimidation in one's own home now.
posted by digitalprimate at 6:18 PM on May 17, 2011 [3 favorites]


Good point, digitalprimate. What's your address?
posted by It's Raining Florence Henderson at 6:22 PM on May 17, 2011 [2 favorites]


And shoot your dog. C'mon, it's only a dog; it's a small price to pay to catch somebody who might be smoking the devil's weed!

Especially if it's just a corgi.
posted by homunculus at 6:23 PM on May 17, 2011


To be fair, corgi's are known for smoking the ganja.
posted by It's Raining Florence Henderson at 6:25 PM on May 17, 2011


Napolitano (as heinous as a lot of his opinions are) might be one who would speak against this kind of thing. But he's an actual Libertarian and not of the pretend-Libertarian who jumped on the Tea Party bandwagon.

symbioid, I don't know who you meant to reference, but Janet Napolitano and "his opinions" don't go together, nor is she a Libertarian. Clearly you meant someone else.
posted by IAmBroom at 7:09 PM on May 17, 2011


Wrong Napolitano.
posted by furiousxgeorge at 7:13 PM on May 17, 2011


0. Cops have set up a controlled drug buy and are pursuing a suspect into the building after the drug deal was witnessed. They follow the suspect into the building and hear a door shut.
1. Cop smells marijuana, etc.


Hmm...so they who smelt it, also dealt it?
posted by stevis23 at 7:20 PM on May 17, 2011


It seems like there's at least two camps of people showing up in this thread, those who believe we live in a world where cops are frequently corrupt and will use this and other rulings as much as possible to get convictions, as well as being used to punish dissidents, and those who believe in some kind of bizarre fantasy world.
posted by odinsdream at 7:31 PM on May 17, 2011 [12 favorites]


Meanwhile, in Florida, crooks keen to exploit the more broadly interpreted warrant-less search powers of the police have started posing as police officers to stage home invasion assaults.

Who wouldn't willingly open their doors to any person knocking at the door who looked like a cop now, after this travesty of a ruling? By gradual degrees, we've basically voided the principle that we have an inherent right to be secure in our homes.
posted by saulgoodman at 8:11 PM on May 17, 2011 [1 favorite]


saulgoodman, have you read the opinion, or did you just read the dissent and decide to agree with it?

twf: Yes I read the opinion, and I've been following the case and the arguments leading up to the decision in various news channels for a while now. That's what makes that kind of rhetorical shit so annoying. Just reading a decision isn't going to make me agree with it. And obviously there are valid, qualified arguments to be made in opposition to the ruling, since there's a dissent.

posted by saulgoodman at 8:18 PM on May 17, 2011 [2 favorites]


The War on Drugs will must end with either legalization or a total police state. Take your pick.

look at what's going on in mexico lately? - it won't end - it'll get much, much worse
posted by pyramid termite at 9:03 PM on May 17, 2011


Last week, a bad cop could lie about about smelling drugs, get a warrant, break down the door, plant drugs where there were none. This week, a bad cop can lie about smelling drugs, lie about hearing suspicious noises, break down the door and plant drugs where there were none. What's the practical difference here?

Here, let me just quote from the dissenting opinion (actually Ginsburg is quoting from Johnson v. United States here):

“The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a policeman … .


The difference is, it's a judge making the decision, hopefully after giving it some thought, not a policeman making the decision in the heat of the moment.

I'll reiterate my earlier question: for anyone who agrees with this decision, can you explain where you disagree with the dissenting opinion?
posted by mstokes650 at 9:21 PM on May 17, 2011 [1 favorite]


Things like this are precisely why my Dream Home has 18″ thick, steel-reenforced concrete walls, all steel entry doors with high-security locks, and full-time video surveillance with off-site backups.

I have said in the past that I took some solace in the fact that I'd likely be dead before things got so bad I'd wish I was dead. Lately I'm not so sure.
posted by ob1quixote at 9:43 PM on May 17, 2011


I'll give it a shot mstokes650:

I agree officers ought to be allowed to enter a home without a warrant under certain circumstances -- what the court calls "Exigent Circumstances", i'll quote the majority:

his Court has identified several exigencies that may justify a warrantless search of a home. See Brigham City , 547 U. S., at 403. Under the “emergency aid” exception, for example, “officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Ibid.; see also, e.g., Fisher , supra, at ___ (slip op., at 5) (upholding warrantless home entry based on emergency aid exception). Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. See United States v. Santana , 427 U. S. 38, 42–43 (1976) . And—what is relevant here—the need “to prevent the imminent destruction of evidence” has long been recognized as a sufficient justification for a warrantless search. Brigham City , supra, at 403; see also Georgia v. Randolph , 547 U. S. 103 , n. 6 (2006); Minnesota v. Olson , 495 U. S. 91, 100 (1990) . 3

bolds are mine (I know wading through legal jargon is a chore)

the case here is a little different in that the people who ended up being charged with crimes had nothing to do with the original string operation. And the reason they took the case up, if i had to guess, was that KC ruled using their "bad faith" test which was an exception to the "Exigent Circumstances" (an exception to the exception)

given the facts of the case, i do rule with the majority -- they pursued a suspect after a drug deal into an apartment where there was one of two doors to enter. They then smelled pot, and upon announcing themselves heard "movement" which they took to believe that evidence was being destroyed. Now, for me, the fact they were pursuing someone is important when it comes to invoking exigent circumstances -- and so far no one is arguing against this fact -- the question before the court was whether or not (since it turned out that this was the wrong door with another crime occurring) if KC exception to the exigent circumstances was going to take effect, they ruled that no it won't and furthermore that it is, more or less, a bad rule to invoke to begin with.

so to return the question, what exactly about this ruling of the majority do you believe to be wrong?
posted by Shit Parade at 9:46 PM on May 17, 2011


The difference is, it's a judge making the decision, hopefully after giving it some thought, not a policeman making the decision in the heat of the moment.

I'll reiterate my earlier question: for anyone who agrees with this decision, can you explain where you disagree with the dissenting opinion?


What about the decision, don't you like. The part you quote is not the holding. I bet if you think about it you do agree with the doctrine of exigent circumstances.

Let me explain with a hypo of one part of the doctrine. Exigent circumstances also includes any evidence gathered when police break in to a house where they hear a woman's voice screaming "Don't rape me!" at the top of her lungs. The doctrine means that if that happens and they enter to save her, they can collect the gun, knife or other weapon involved.

The question here is when there are exceptions to the rule. Currently the rule says that if the police hear a crack dealer repeatedly flushing every toilet in the house in rapid succession, they can enter to prevent the destruction of evidence. Is that wrong?
posted by Ironmouth at 9:46 PM on May 17, 2011


Cops and firefighters should be paid well. Schools should, I don't know, maybe have teachers too?

They both should be paid a great deal. And the rich should start paying their fair share of taxes.

Remember, also, that it is the voters who are stripping the teachers of funds by voting down bond issues. You wanna blame someone? We all gotta look in the mirror for that. Cops and firefighters are paid out of city funds. The teachers deserve the same pay, if not more.
CEOs should get less, not cops and firefighters.
posted by Ironmouth at 9:50 PM on May 17, 2011


Things like this are precisely why my Dream Home has 18″ thick, steel-reenforced concrete walls, all steel entry doors with high-security locks, and full-time video surveillance with off-site backups

ineffective against warrants. Which is how the majority of these seizures occur. This is about the exception to the rule. When should it come into play. Where exactly do you think that should be?
posted by Ironmouth at 9:52 PM on May 17, 2011


Nixon wouldn't have dared.

Richard M. Nixon claimed the constitutional right to wiretap U.S. citizens in the US without warrant.

So, yes, he dared. I think knowing the actual history here is a really important thing.
posted by Ironmouth at 9:54 PM on May 17, 2011 [1 favorite]


do you Ironmouth -- since you study the law -- know of a list of Exigent Circumstances because simply smelling pot and hearing "movement" wouldn't be enough for me to consider reasonable to enter a home, the fact that the cops were chasing a suspect who entered one of two doors however does, now if it it were one of a thousand doors? I'd say no, it isn't enough.
posted by Shit Parade at 9:55 PM on May 17, 2011


It seems like there's at least two camps of people showing up in this thread, those who believe we live in a world where cops are frequently corrupt and will use this and other rulings as much as possible to get convictions, as well as being used to punish dissidents, and those who believe in some kind of bizarre fantasy world.

The problem is that only one group of people has, you know, actual experience with this.
posted by Ironmouth at 9:56 PM on May 17, 2011 [1 favorite]


It seems like there's at least two camps of people showing up in this thread, those who believe we live in a world where cops are frequently corrupt and will use this and other rulings as much as possible to get convictions, as well as being used to punish dissidents, and those who believe in some kind of bizarre fantasy world.

The problem is that only one group of people has, you know, actual experience with this.


Oh please, it is asinine to suggest there are no corrupt cops because cops are people and it is asinine to suggest there are no corrupt people. Perhaps there is a profession in which no corrupt people work, but I wouldn't know it.

Hey Ironmouth, do you agree or disagree with the recent IN supreme court ruling involving the 4th amendment?
posted by Shit Parade at 10:02 PM on May 17, 2011


do you Ironmouth -- since you study the law -- know of a list of Exigent Circumstances because simply smelling pot and hearing "movement" wouldn't be enough for me to consider reasonable to enter a home, the fact that the cops were chasing a suspect who entered one of two doors however does, now if it it were one of a thousand doors? I'd say no, it isn't enough.

OK, here's the problem. This isn't what the decision says. Not at all. The decision says this:
For these reasons, we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.
It doesn't say that these particular officers hearing "movement" had the right to enter the house because that is enough to say that evidence being destroyed. Not at all. It says that the lower court has to decide the problem on the following basis: "the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment."
dd
Read the opinion: " We need not decide whether exigent circumstances existed in this case. Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency."

What happened here is that trial court found the exigency. Not the supreme court. The only question is, did the trial court use the wrong standard when deciding the case. The Supreme Court said no.

Let's be clear--this particular "exception to the exception" is about making sure that the police don't commit misconduct by creating the exigency themselves. The Supreme Court set the rule as follows. If the defense argues that the police created the exigency, when you look at the case, see if they self-justified by saying Police, open up or we will break the door down and then when people go to flush the stuff, they say "see destroying evidence" lets go in there. This ruling says the edge is here--If the police threaten to come in anyway, or break in after you say "get a warrant", they can't claim they heard you flush the toilets or moving to destroy evidence. But if they don't actually threaten or break in, then you can't run to the toilets and then claim exigent circumstances don't exist.
posted by Ironmouth at 10:07 PM on May 17, 2011


do you Ironmouth -- since you study the law -- know of a list of Exigent Circumstances because simply smelling pot and hearing "movement" wouldn't be enough for me to consider reasonable to enter a home, the fact that the cops were chasing a suspect who entered one of two doors however does, now if it it were one of a thousand doors? I'd say no, it isn't enough.

The other thing is that at the trial court level, there were pages and pages of testimony in the suppression hearing, where the defense was able to ask all sorts of questions about what happened. By necessity, the appeals court (here the SC) summarizes them in a few lines. They defer to the findings of the trial court on this because the trial court judge actually heard the evidence. So summarizing it as "Simply smelling pot and hearing "movement" isn't the extent the facts the lower court found in the hearing. It is the gloss of the appeals court.
posted by Ironmouth at 10:13 PM on May 17, 2011


The Supreme Court set the rule as follows. If the defense argues that the police created the exigency, when you look at the case, see if they self-justified by saying Police, open up or we will break the door down and then when people go to flush the stuff, they say "see destroying evidence" lets go in there. This ruling says the edge is here--If the police threaten to come in anyway, or break in after you say "get a warrant", they can't claim they heard you flush the toilets or moving to destroy evidence. But if they don't actually threaten or break in, then you can't run to the toilets and then claim exigent circumstances don't exist.
you're actually misreading it slightly:
Over the years, lower courts have developed an exception to the exigent circumstances rule, the so-called “police-created exigency” doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was “created” or “manufactured” by the conduct of the police. See, e.g., United States v. Chambers , 395 F. 3d 563, 566 (CA6 2005) (“[F]or a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves”); United States v. Gould , 364 F. 3d 578, 590 (CA5 2004) (en banc) (“[A]lthough exigent circumstances may justify a warrantless probable cause entry into the home, they will not do so if the exigent circumstances were manufactured by the agents” (internal quotation marks omitted)).
the supreme court is striking down all exceptions, or at least police created exigency, to exigent circumstances, which returns us to the question, without the pursuit of a suspect, would smelling pot and hearing movement (as I have "glossed" it) been sufficient to invoke exigent circumstances.
posted by Shit Parade at 10:23 PM on May 17, 2011


I think knowing the actual history here is a really important thing.

That was sarcasm.

I'm old enough to have lived through that bit of history, actually. Has a lot to do with my distrust of idealism, to be honest. I'll never forget watching the resignation speech, either. I happened to be in Canada at the time, on vacation with my ultra-liberal family, watching the news at the home of an ultra-conservative ex-pat. He wept bitterly, while we tried our damnedest not to cheer. No need to be rude guests. But it was definitely good riddance to bad rubbish.

So, yeah. I know he actually would have dared. But luckily for America, he didn't have a court that was ready to bend America over the nearest piece of furniture at the first sign of trouble.
posted by It's Raining Florence Henderson at 10:28 PM on May 17, 2011


so to return the question, what exactly about this ruling of the majority do you believe to be wrong? -Shit Parade

What about the decision, don't you like. The part you quote is not the holding. I bet if you think about it you do agree with the doctrine of exigent circumstances. -Ironmouth (followed by a patronizingly simplistic example of exigent circumstances)

I've posted about that several times in this thread already (and yes, Ironmouth, if you look at my second post in this thread, you'll see me specifically stating I generally support the idea of exigent circumstances). Chiefly, I think they threw out some reasonable tests for exigent circumstances as being 'not good enough' and replaced it with the standard Ironmouth described - where, for one thing, the difference between yelling "Police!" and yelling "Police! Open up!" is viewed as a bright and clear and meaningful distinction - and I think that's a distinction which, to put it politely, suggests that the Supreme Court Justices (not unsurprisingly) do not have much experience with dealing with unfriendly police officers that want to come in their house.

Much like Ginsburg, I also think that in this case, specifically, the cops should've gotten a warrant before announcing their presence by knocking on doors, thus preventing it from ever becoming an issue.

But I am repeating myself; I have already said all these things in this thread. It'd be nice if people could be bothered to read them before asking me to repeat myself again.
posted by mstokes650 at 10:41 PM on May 17, 2011


but mstokes650 do you give no credence to the fact that the police were in pursuit of a suspect?

I mean, proverbially, these people were in the wrong place at the wrong time doing the wrong thing. When it comes to whether cops need to always ask for a warrant was the majority opinion discussion as such not convincing?

see:
This approach unjustifiably interferes with legitimate law enforcement strategies. There are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired. Without attempting to provide a comprehensive list of these reasons, we note a few.

First, the police may wish to speak with the occupants of a dwelling before deciding whether it is worthwhile to seek authorization for a search. They may think that a short and simple conversation may obviate the need to apply for and execute a warrant. See Schneckloth v. Bustamonte , 412 U. S. 218, 228 (1973) . Second, the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant. A consensual search also “may result in considerably less inconvenience” and embarrassment to the occupants than a search conducted pursuant to a warrant. Ibid. Third, law enforcement officers may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application. Fourth, prosecutors may wish to wait until they acquire evidence that can justify a search that is broader in scope than the search that a judicial officer is likely to authorize based on the evidence then available. And finally, in many cases, law enforcement may not want to execute a search that will disclose the existence of an investigation because doing so may interfere with the acquisition of additional evidence against those already under suspicion or evidence about additional but as yet unknown participants in a criminal scheme.
posted by Shit Parade at 10:48 PM on May 17, 2011


First, It's Raining Florence Henderson, you say:

Nixon wouldn't have dared.


and then when you get called on it, you say:
So, yeah. I know he actually would have dared.

Can you see why someone might have a problem following your arguments?
posted by IAmBroom at 11:14 PM on May 17, 2011


To be perfectly clear, I don't think the lower court tests are perfect; particularly the "bad faith" test that the Kentucky Supreme Court used is uncomfortably subjective. I do think the test suggested by the SCOTUS is useless and basically worthless, though.

When it comes to whether cops need to always ask for a warrant was the majority opinion discussion as such not convincing?

I think those are pretty weak reasons, as I've mentioned already - I mean, the SCOTUS is seriously proposing that the police's desire to avoid potentially embarrassing people is a legitimate reason for them to skip getting a warrant? Yeah, I'm sorry, but put me firmly in the camp that says the 4th Amendment > my personal embarrassment; I'd much rather have you search my house with a warrant (and find nothing!) than knock on my door and then kick it open without a warrant because I happened to be on the shitter when you knocked and then flushed at bad time. And keep in mind, we're talking about situations where there is presumably enough probable cause already that the cops could get a warrant.

While we're talking about lower-court tests, here's the one I *am* a fan of:
Reasonable foreseeability . Some courts, again including the Kentucky Supreme Court, hold that police may not rely on an exigency if “ ‘it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.’ ”

That makes perfect sense to me. Yes, if the cops knock on a door of a person potentially involved in the drug trade, they should consider the possibility that the person's going to start flushing immediately. Cops aren't stupid, generally, and I'm pretty sure they already do consider this possibility. Seems to me that the War on Drugs has not been greatly handicapped by this "reasonable foreseeability" standard. Get a warrant before you knock, instead of acting "oh my gosh, totally surprised" that the people you had probable cause to search reacted poorly to you, and then kicking their door down sans warrant. Why is that so hard?

In this particular case, yeah, they were in pursuit of a suspect. They got the wrong apartment, but hey, hot pursuit! Is there a reason they couldn't have camped outside for a few minutes, let him think he got clean away for a few minutes while they got a warrant, and then gone in? Neither I nor Justice Ginsburg seems to think so.
posted by mstokes650 at 11:28 PM on May 17, 2011


Can you see why someone might have a problem following your arguments?

Sure. Especially since I wasn't making any arguments. All I've done in this thread is shoot my mouth off. Nothing here to follow. Not sure why you're invested in a throwaway snark than I'm not even defending, especially since there are people in this thread making actual arguments and I've already admitted I was just dropping my usual drive-by turd into the punchbowl. But since you seem to care, I'll break my own rule and try to explain the joke, even though it honestly isn't worth your time:

Nixon lost the most powerful job in the nation, if not the world, in large part because he sent his stooges to illegally break into Democratic headquarters. You can choose to believe I'm stupid enough not to know that, or you can choose to believe that not only did I know that, but that I thought it was so obvious that every MeFite reading would know it, too. The absurdity of the statement was meant to underscore the depth of my disappointment in the current court and administration. That even someone who personally conspired in (at the least, covering up) an illegal B&E couldn't compare to the crap we're legalizing now. Obviously, the joke bombed. To me, it feels like saying someone who did some heinous but obviously lesser evil is worse than Hitler, and having someone claim that I obviously don't know why Hitler was so bad. Pretty much exactly misses the point.

If you'd rather assume that I'm an idiot, got "called on it," and am now trying to backtrack, that's your prerogative. You asked, so I'm explaining. But let's not waste any more of this thread on my blathering. Absolutely my fault for the derail, so let's just leave it at "my bad" and move on.
posted by It's Raining Florence Henderson at 12:14 AM on May 18, 2011


It seems like there's at least two camps of people showing up in this thread, those who believe we live in a world where cops are frequently corrupt and will use this and other rulings as much as possible to get convictions, as well as being used to punish dissidents, and those who believe in some kind of bizarre fantasy world.

The problem is that only one group of people has, you know, actual experience with this.


What a strange statement. Only lawyers and those who practice law professionally have actual experience with this?

There are many people in this thread who have actual practical experience with drug laws and illegal searches, just not on the police side. Countless threads on metafilter have shown the community is economically diverse and several of the users have related personal stories of police discrimination and drug law encounters.

I would argue that those who are going to be on the other end of the searches, the downtrodden and the neglected, actually have MORE practical experience with this.

If I wanted to appeal to authority, I'd quote some of the legal experts in the NPR piece:

For example, George Washington University law professor Stephen Saltzburg, who says "whenever the police have suspicion that there is drug activity going on in a particular apartment or house and they knock and they hear movement inside and any reasonable delay in opening the door, they are going to break it in."

And Philip Heymann, former head of the U.S. Justice Department's Criminal Division and current professor at Harvard Law School, who said in the article, "That is a very fuzzy, indeterminate, easily faked — if the policeman wants to — test, when drugs have afterwards been found," says Heymann.

But I'm not going to appeal to authority. I'm going to appeal to an understanding of the incentives we are setting up here. Honestly, can anybody deny this will not lead to more warrant-less searches? The question then becomes: do you trust the police or not?

This list of corrupt cops might answer that question: Week after week, page after page.

We need to get the police out of the drug business, all of it, so they can get back to their real job of catching criminals. This ruling isn't going to do that.
posted by formless at 12:17 AM on May 18, 2011 [2 favorites]


The problem is that only one group of people has, you know, actual experience with this.

See, the thing is we are supposed to know our history. And, indeed, as a people, we all have experience with this. See: Kings and Redcoats.

We have to serve two gods here: First we have to protect and defend what we consider to be man's God-given rights. Second, we have to maintain a civil society. It's not surprising (or, at least it shouldn't be) that the Bill of Rights came before all the vaunted legal minutae. The Bill of Rights - our bedrock values - are antithetical to police power. It is not un-American to acknowledge that. In fact, it's just the opposite.

It is not the court's job to sympathize or commiserate with the police on how difficult it is to do their job. The court's job is to protect our basic rights - damn procedure and the consequences.

We have been moving in the wrong direction for a while.
posted by Benny Andajetz at 4:43 AM on May 18, 2011 [3 favorites]


Seems to me your best protection is to keep your shit in boxes. No plain view.

You need a place for your stuff.
posted by Bovine Love at 6:26 AM on May 18, 2011


This isn't directly related to this ruling, but it's a timely reminder that Supreme Court decisions on narrow technical grounds can have broader negative social consequences, and pointedly illustrates the general dismissive attitude of toward the public will and public good that many of the court's more recent opinions have helped foster:
Responding to watchdogs' complaints that his new Super PAC is illegal even on the now-virtually-lawless campaign finance frontier, Republican uber-lawyer James Bopp growls (I'm imagining the chewed stubb of a cigar dangling from his lips): "The Supreme Court doesn't care, and I don't care, and the [FEC] doesn't care. No one that matters cares."
posted by saulgoodman at 7:31 AM on May 18, 2011 [2 favorites]


(source for that last quote.)
posted by saulgoodman at 7:32 AM on May 18, 2011


Sure. Especially since I wasn't making any arguments. All I've done in this thread is shoot my mouth off. Nothing here to follow. Not sure why you're invested in a throwaway snark than I'm not even defending, especially since there are people in this thread making actual arguments and I've already admitted I was just dropping my usual drive-by turd into the punchbowl. But since you seem to care, I'll break my own rule and try to explain the joke, even though it honestly isn't worth your time:

I always assume people are arguing in good faith here. I am sure that IAmBroom thought the same. If all you are doing is dropping "drive by turds" on the blue and derailing the conversation...why do you bother? Isn't what you are doing breaking the guidelines/rules here?
posted by futz at 7:49 AM on May 18, 2011


Worst. Supreme. Court. Decision. Ever.
posted by neuron at 7:59 AM on May 18, 2011


I hope that the Super-Supreme Court overturns this.
posted by Galaxor Nebulon at 8:23 AM on May 18, 2011 [1 favorite]


You know what makes me sad? I read this and realize that I'm probably seeing the foreshadowing of my own death:

I can see the cops coming to my door and I can see myself not answering because, living in an area where people try to convert you to their religion or brand of vinyl siding is common, I find it's easier to tell visitors to call my cell instead of using the doorbell, that way I always know if it's someone I want to open the door for, and when I don't answer and the cops notice that my house if filled with the kinds of lighting popular with hydroponic pot growers, and after the doorbell goes off, my dogs start going crazy (they love the new people so. much.) and the police kick in the door, and shoot the animals coming to greet them. Hearing gunshots and my dogs suddenly silenced, I go to investigate, and when the police see an armed man coming to confront them, they gun me down as well.

And it'll all be for the metal halide lights over my wife's fishtanks. No illegal drugs in the house at all.

No, it won't actually happen, but the mere fact that it could, and it would be generally considered legal makes me really sad.
posted by quin at 8:34 AM on May 18, 2011 [3 favorites]


Two camps: formalists and realists?

When the decision goes your way, it's easy to be a formalist. I think there are more formalists than realists here. Unhappy formalists, but formalists nevertheless.
posted by warbaby at 9:14 AM on May 18, 2011 [1 favorite]


One of my problems with the so-called "formalist" view on law is that it implicitly assumes that the law is essentially a complete, formal logical system. All legal conclusions derive inevitably from legal axioms, and the law never yields any inherently undecidable propositions.

But as has been proven, there's no such thing as a non-trivial, complete and self-consistent formal system. It's not even theoretically possible for the formalists to be right. Logically consistent legal decisions do not and cannot always follow from the axioms of our legal systems. That's why judges have to use, well, good judgment, and we can't simply replace them with calculators.
posted by saulgoodman at 9:31 AM on May 18, 2011


It appears that has been around for at least 21 years and is endorsed by three separate circuits, at minimum. I think there is a good reason to not allow the police's mere appearance at the door create the circumstances. The question is, of course, what test to apply.
posted by Ironmouth at 2:27 PM on May 17


Whatever. I said the Kentucky Supreme Court bucked the precedent by "establishing" an exception to the exception. I should have said "bucked the precedent by joining the clear minority view in a three-way split on the issue that established an exception to the exception." Either way, the 8-1 decision is not crazy and shouldn't be cause for foaming at the mouth, which was my basic point. I'm not sure you are disagreeing with me on that anyway.
posted by Slap Factory at 9:36 AM on May 18, 2011


The problem is that only one group of people has, you know, actual experience with this.

As formless indicated, the people with "you know, actual experience with this" are the people who have been on the business end of drug raids or police harassment. If you've been harassed by the police or know people who have (and I do know people who have, although luckily I've never been one of them), you trust the police's ability to reasonably decide what a proper exigent circumstance is less than you otherwise would, and you probably trust the judicial system overturning a police officer's decision less than you otherwise would.

This is all about how the attitude of never trusting the cops (and not trusting the courts to rein them in when they're out of line) has spread well into the middle class. You can call that cynicism or (not legal) realism, but that's where I see it coming from. If you don't trust the police, court deference to their judgement is a frightening thing.
posted by immlass at 9:36 AM on May 18, 2011


I was just reading this thread when someone came and pounded on my door--I nearly fell off my couch, I was so scared. Heart pounding, I tip toed to the door and peered through the peek hole. A strange man in dark clothes was standing there for a while. On the other side of the door, I stood, scarcely breathing. At last he walked around the corner and I cracked the door open.

He had delivered a pair of shoes.
posted by chatongriffes at 9:42 AM on May 18, 2011


Two camps: formalists and realists?

I was not familiar with the formal terms for the legal philosophies, but you're right, I think that gets at one of the core disagreements here.
posted by formless at 9:47 AM on May 18, 2011


Isn't what you are doing breaking the guidelines/rules here?

Absurdist-style one-liners do not break the guidelines on the Blue, even if you don't get/like them. This meta-conversation about their propriety, however, does. I have already accepted responsibility, so it sort of feels like this dead horse has been well and truly beaten by now. But if any of you still feel the overwhelming need to continue, please take the conversation to MetaTalk, where it belongs. In order to end this derail, I will no longer follow this thread. Sorry for the wasted time.
posted by It's Raining Florence Henderson at 9:55 AM on May 18, 2011


I still strongly believe the more basic point--that searching a person's home under any circumstances is not supposed to be trivial or easy for authorities (one of the US's most revolutionary legal ideas, and one that John Adams argued for as a justification for American independence)--is being obscured by legalistic and expedient rationalizations in this case.

As noted in the link above, many among the early Americans were smugglers and bootleggers, but nobody liked the British authorities busting down people's doors all the time to look for contraband. It's ironic how directly this ruling ignores and contradicts the spirit of the historical circumstances that prompted the adoption of the 4th amendment in the first place. At the time, we decided as a society that even the potential for the movement of illegal contraband was not a sufficient basis for giving authorities the power to search our homes without presenting good evidence, through due process--so much so we embodied the principle in our founding laws. Now where are we?
posted by saulgoodman at 9:57 AM on May 18, 2011 [5 favorites]


It is a ghetto, and, to godwin the thread, life as a young poor black is nearly no better than being a ww2 jew.

Uh, no.

I first came to DC as an intern at the Holocaust museum. While cataloging video interviews of survivors, I got exposure to dozens of survivor stories. I can tell you there is no fucking comparison. None.
posted by Ironmouth at 11:07 AM on May 18, 2011 [1 favorite]


I still strongly believe the more basic point--that searching a person's home under any circumstances is not supposed to be trivial or easy for authorities (one of the US's most revolutionary legal ideas

You fundamentally misunderstand the warrant requirement. It has nothing to do with ease, it has to do with oversight. And with technology, officers can get warrants much faster than before.

The idea is that a judge gets to decide that it is ok. There are a few exceptions and the battle here is about where the line is drawn where officer's actions may have created the exigency.
posted by Ironmouth at 11:14 AM on May 18, 2011


Worst. Supreme. Court. Decision. Ever.

Worse than Dred Scott or Bush v Gore?

I think not.
posted by Ironmouth at 11:19 AM on May 18, 2011


It has nothing to do with ease, it has to do with oversight.

Explain that to John Adams would you? Because my point was about the historical circumstances that gave rise to the 4th amendment. Not about current legal interpretations. And the fourth definitely was deliberately intended to make search and seizure more difficult for authorities at the time. I'm not arguing that's how it is and always should be on Originalist grounds or anything. Just pointing out our current national character no longer much resembles our national character at the outset. We're much more legally and culturally deferential to authority now. I'm not even on the anarchist side of things, and I can see that.
posted by saulgoodman at 11:27 AM on May 18, 2011


We're much more legally and culturally deferential to authority now.

Bingo. And it's very sad. It's impossible to be exceptional without being exceptional.
posted by Benny Andajetz at 11:53 AM on May 18, 2011


Meanwhile, in Gotham City ... okay, California.

Is this the camel's nose in the tent?
posted by adipocere at 12:05 PM on May 18, 2011


It is a ghetto, and, to godwin the thread, life as a young poor black is nearly no better than being a ww2 jew.

Uh, no.

I first came to DC as an intern at the Holocaust museum. While cataloging video interviews of survivors, I got exposure to dozens of survivor stories. I can tell you there is no fucking comparison. None.


The holocaust was a horrific event. But that doesn't mean there can't be comparisons. Comparing something to it doesn't need to minimize the significance and horror of that event, or insult the victims. I'd like to think that by comparing current social situations to the holocaust, we can work to prevent a future one.

I grew up in Saginaw, Michigan, which has been rated the most violent city in the US from 2003-2010 by the FBI. It's an old GM town that has seen its manufacturing base move away, and with it the jobs and stability that go with it. The per-capita income is only $21,665.

Remember that crack epidemic in the 80s? Saginaw is still in the middle of it. The east side is a ghetto, there is no other word to describe it. I'll let the Wikipedia article on the history of Saginaw explain the circumstances:
Attitudes of racism promoted the segregation of African-American residents into concentrated neighborhoods almost exclusively within the city's east side. Mortgage lenders and real estate sales agents enforced racial segregation by making it difficult for residents of certain areas to obtain financing or for African-Americans to purchase properties in white neighborhoods
If that doesn't encourage comparisons to other historical ghettofication projects, I don't know what would. The poverty is horrifying in Saginaw.

But to relate it back to this thread in general, Saginaw has a conservative law & order police force. Their solution to their economic woes is to crack down harder and harder. While the city continues to crumble, and schools let off more teachers, the police have a new habit. They've taken to driving around with cars seized from drug dealers, with "Taken From a Cocaine Dealer" and "Taken From A Drug Dealer" emblazoned on their sides. It's become a game for them.
posted by formless at 12:07 PM on May 18, 2011


The obvious solution here is not to live in an apartment, or in a small house with thin walls. Not to be poor, in other words.

For example, it's not like the officers are going to hear Justice Alito deleting his kiddie porn deep in his Virginia mansion when they are waiting at the estate gates.
posted by Robin Kestrel at 1:34 PM on May 18, 2011 [1 favorite]


and the fourth definitely was deliberately intended to make search and seizure more difficult for authorities at the time.

I will need a real cite for that, not that "some guy who wrote something for the internet thing" you cited before. Federalist papers, perhaps?

Because the Fourth is about oversight. If a magistrate was standing right there, he or she could immediately issue a search warrant.

Why would we want to make the job of the police harder? We want to have oversight yes, but why create a force and then make it deliberately harder, regardless of rights. Remember this is a positive right possessed by the people. The presence of the magistrate is to be sure that such a search is necessary, not to make it harder.

The view that it is to "make it harder" is totally inconsistent with what the fourth is, which is a positive grant of rights to individuals, not an attempt to make it "harder" for the police.
posted by Ironmouth at 2:04 PM on May 18, 2011


The holocaust was a horrific event. But that doesn't mean there can't be comparisons. Comparing something to it doesn't need to minimize the significance and horror of that event, or insult the victims. I'd like to think that by comparing current social situations to the holocaust, we can work to prevent a future one.

I'll never forget reading one woman's account. A hungarian jew, she was hiding under a house, holding her baby, with about 20 other jews while members of the Green Arrow, the Hungarian Fascist group were hunting them. When the baby started to cry when the Green Arrow was nearby, she held its mouth shut until it died so that they would all live.

That ain't happening here. The comparison is horseshit
posted by Ironmouth at 2:07 PM on May 18, 2011 [1 favorite]


Why would we want to make the job of the police harder?

Why indeed?
posted by furiousxgeorge at 2:13 PM on May 18, 2011


The view that it is to "make it harder" is totally inconsistent with what the fourth is, which is a positive grant of rights to individuals, not an attempt to make it "harder" for the police.

Read a history book once in a while instead of just legal journals. The colonists were sick of the red coats busting and searching people's houses all the time without warning. The 4th was conceived partly in reaction to the popular outcry over that state of affairs. That's a simplification, but it's accurate. You won't have to search long to find history texts on the subject. The 4th amendment, like the rest of our laws, didn't just plop out fully-formed from the brow of Zeus or anything.

Also, you can't make it easier for people to be secure against unreasonable search and seizure in their homes without at the same time making it harder for authorities to search their homes. IMO, the reasoning part of those "reasonable decisions" is supposed to be carried out under the law, in a formal legal process, not out on the street by a cop and that's the whole point.
posted by saulgoodman at 2:21 PM on May 18, 2011


Read a history book once in a while instead of just legal journals.

I have a BA and an MA in history. You are not citing anything. I can't take any of your gross oversimplifications seriously. Hint: find something in the Federalist Papers to support your opinion.

Please don't tell me what I have read or haven't read. It is unseemly. Throughout your criticism of my answers in this thread you've made a large number of generalizations regarding what I've read or what my perspective is. May I gently suggest that you find a cite to the historical record rather than waste your time telling me what I think or know or what my attitude is about something. I haven't said a word about what you are thinking or what you have read.

It is important we look at how the law handles these things. Because that is where real life is happening. There's all sorts of made up counterfactuals in the thread and the like, none of which involve real life courts, where people's actual rights are being litigated and evidence supressed or not supressed. The assumptions should be left at the door and the facts referred to. Soapboxing and strawmanning doesn't move the debate forward.
posted by Ironmouth at 2:52 PM on May 18, 2011 [1 favorite]


Equating real life with how the law handles things is a great confusion and so is equating the law with justice.

Have you forgotten what it is to think with your heart? People are upset and they see this ruling as another step away from freedom and security. How about you actually attempt to understand this mood instead of retorting elegant legal jargon? Can you recall why law exists? It is to serve human dignity and a harmonious society, and to go on speaking in a manner cold and distant from the educated laymen is willfully obtuse and rude, nor does it "move the debate forward".
posted by Shit Parade at 4:43 PM on May 18, 2011


Law exists so lawyers and judges can erect walls of impenetrable bullshit code words and precedents behind which they hide positions based on self motivated greed or ideology.
posted by furiousxgeorge at 4:46 PM on May 18, 2011


Equating real life with how the law handles things is a great confusion and so is equating the law with justice.

First, the law is real life. The Supreme Court here isn't just opining about hypotheticals - it is considering an actual real case and providing guidance regarding the test to be applied in that real life case. Second, you're right that equating the law with justice is a "great confusion." Justice is what people look for when they go to court. The law is what they get when they get there.
posted by The World Famous at 4:47 PM on May 18, 2011


Law exists so lawyers and judges can erect walls of impenetrable bullshit code words and precedents behind which they hide positions based on self motivated greed or ideology.

Law exists, in large part, so that you have some recourse when some greedy or ideologically-motivated bastard takes advantage of you. Hate lawyers and judges all you want, but the law is a wall of code words and precedents that is intended to protect you. And the reason most people in this thread are upset about Kentucky v. King is that they perceive it as an erosion of that wall.
posted by The World Famous at 4:51 PM on May 18, 2011


Just laws are a great protection and alternative to violence, and laws are necessary for at least the birth of civil society if not it's continuation.
posted by Shit Parade at 4:51 PM on May 18, 2011


Law exists, in large part, so that you have some recourse when some greedy or ideologically-motivated bastard takes advantage of you.

That was the idea, but for the reality you visit my link posted just above.
posted by furiousxgeorge at 4:52 PM on May 18, 2011


Your link posted just above does not rebut my assertion.
posted by The World Famous at 5:14 PM on May 18, 2011


I'm sure it feels that way.
posted by furiousxgeorge at 5:21 PM on May 18, 2011


I know you are, but what am I?
posted by Gator at 5:27 PM on May 18, 2011


People are upset and they see this ruling as another step away from freedom and security. How about you actually attempt to understand this mood instead of retorting elegant legal jargon?

They feel that way because the OP completely misstated the case and threw a big bomb without taking the time to understand what the case meant. It is a refinement of a narrow exception to an exception. But people read the facts only and not the law and added a dash of preconcieved "I hate all cops" and you got this train wreck, where people with training and experience were attacked for bringing the knowledge they had to the thread because people did not like what they were saying. Those with real-world knowledge--knowledge of how people's rights actually work in the real world, were told they were lost in some citiadel while everyone reacting to feelings and ideology were actually the people that did not have the real world background.

I'm trying to reassure people that this doesn't really mean much. It is a corner of a corner of the law.

What really troubles me is that people don't take the time to become informed anymore. Everywhere citizens react with emotion immediately instead of stepping back and saying "what do I know about this and how can I learn more."

In the end, it is not my place in this world to comfort the emotions of the people who reflexively declare the US a police state and godwin at every opportunity.

I get it. We all wish weed was legal. But put the emphasis where it needs to be, on legalization, not on police following the rules they are given.
posted by Ironmouth at 5:46 PM on May 18, 2011


No one's watching this thread anymore, but just to follow up on my rather (admittedly histrionic) post earlier: there were over 1,000 people in front of city hall last night. Not a single uniformed cop in sight for a crowd that large.

On reviewing the video I shot, I'm fairly sure (check my profile for my credentials for this particular appeal to authority) I spotted at least four plainclothes officers there. Who were not protesting but did have cameras.

This decision is not an abstraction, nor is it about thin wedge cases at all. In a very practical sense it is flat out about authority and its limits, or rather the lack thereof.

(and It's Raining Florence Hendersons that was a cheap shot, but it would be pretty damn easy to google where this is happening if you wanted, you lazy fuck).
posted by digitalprimate at 5:54 PM on May 18, 2011


"...police following the rules they are given."

That of course is the crux of this: are they following actual rules, or just yet again stretching them to justify their actions? Seriously, real world and all of that. This is not some abstraction any longer, nor has it been for a very long time.
posted by digitalprimate at 5:56 PM on May 18, 2011


I apologize for not providing historical cites, but since you've read the Federalist papers, too, I'm sure you can find the details on Wikipedia or somewhere if we're going to make this into a formal academic debate or court case. I'll provide some cites where relevant, but I'm not going to offer a formal geometric proof for you.

Meanwhile, I'll stick with my original historical case: colonial smugglers (including founding luminaries like John Hancock), who strongly opposed the authority of the police to search their homes regardless of how reasonable their suspicions may have been because they were involved in criminal trade. Bootleggers, contraband merchants: These were chief among the political interests that fueled the American revolution. Law and order types might not like to admit it, but our nation has a long sometimes proud and sometimes appalling tradition of tolerating whatever the current-day powers that be deem benevolent lawlessness--for example, the many crimes on Wall Street and in corporate boardrooms the world over that are going unpunished in the name of "the public interest"; for another example, the (officially unsanctioned, but always unhindered) posse's and lynch mobs that have sprung up throughout history.

But it seems to me you have to realize that the whole of revolutionary American history and the ideas and human desires that went into crafting those early foundational legal documents, and the spirit behind them, is a lot more complex and nuanced than is reflected in the narrow, almost personal arguments that found their way into the Federalist papers, because you're an educated and thoughtful person. It seems to me you get all the words right, but completely miss the tune to the song.
posted by saulgoodman at 5:58 PM on May 18, 2011 [1 favorite]


Dude, Ironmouth, just because people have an experience with the legal system that does not line up with what your textbooks say it should does not mean they are all emotional idiots not capable of reaching your level of rationality.

People in this thread have agreed with an ex-head of the Justice department and Harvard law professor that this is an expansion of police powers that can be abused.

Those with real-world knowledge--knowledge of how people's rights actually work in the real world


Believe me, the real world is not inside your legal ivory tower.
posted by furiousxgeorge at 5:58 PM on May 18, 2011


Believe me, the real world is not inside your legal ivory tower.

The real world of what evidence is excluded from criminal trials exists only inside the legal ivory tower.
posted by The World Famous at 6:00 PM on May 18, 2011


They feel that way because the OP completely misstated the case and threw a big bomb without taking the time to understand what the case meant.

Do you honestly not remember that many of the folks posting here in this thread have been following this case some time now since the early arguments, and have been anticipating this ruling and forming opinions of their own all along prior to reading this particular FPP on the subject? Because it doesn't take a lawyer to find and interpret the evidence of that.
posted by saulgoodman at 6:02 PM on May 18, 2011


The real world of what evidence is excluded from criminal trials exists only inside the legal ivory tower.

No, it also exists in millions jail cells filled disproportionately with the poor and black because your ivory tower bullshit is not what determines how cases are decided.
posted by furiousxgeorge at 6:03 PM on May 18, 2011 [1 favorite]


"The real world of what evidence is excluded from criminal trials exists only inside the legal ivory tower."

The real world of obtaining evidence, on the other hand is considerably more messy my dear.
posted by digitalprimate at 6:03 PM on May 18, 2011 [2 favorites]


No, it also exists in millions jail cells filled disproportionately with the poor and black because your ivory tower bullshit is not what determines how cases are decided.

Ivory tower bullshit is exactly what determines how cases are decided. That's the whole point. If that were not the case, it would not matter one bit what the Supreme Court's opinion is.

The real world of obtaining evidence, on the other hand is considerably more messy my dear.

Look, the whole point of this case and the discussion about it is what test should be applied to determine whether or not evidence should be excluded at trial.
posted by The World Famous at 6:06 PM on May 18, 2011



No, it also exists in millions jail cells filled disproportionately with the poor and black because your ivory tower bullshit is not what determines how cases are decided.

Ivory tower bullshit is exactly what determines how cases are decided. That's the whole point. If that were not the case, it would not matter one bit what the Supreme Court's opinion is.


Right, black people just plain break the law more! It's all done by the book!
posted by furiousxgeorge at 6:07 PM on May 18, 2011


Ivory tower bullshit is exactly what determines how cases are decided.

No, in this case, Ivory tower bullshit is what determined it. That's what we're criticizing. You try telling Oliver Wendall Holmes that the how cases are decided has to be determined in an Ivory tower.

He once observed: "The life of the law has not been logic; it has been experience."
posted by saulgoodman at 6:10 PM on May 18, 2011


Right, black people just plain break the law more! It's all done by the book!

If you think that the legal standards for excluding evidence at trial are irrelevant because of the injustices already inherent in the system, then why on earth do you care one way or another what the Supreme Court's opinion is in Kentucky v. King?
posted by The World Famous at 6:11 PM on May 18, 2011


Right, black people just plain break the law more! It's all done by the book!

If you think that the legal standards for excluding evidence at trial are irrelevant because of the injustices already inherent in the system, then why on earth do you care one way or another what the Supreme Court's opinion is in Kentucky v. King?


Because it would be nice if we set a path towards reducing the built in loopholes that allow police abuse instead of setting a path towards expanding them.
posted by furiousxgeorge at 6:14 PM on May 18, 2011


No, in this case, Ivory tower bullshit is what determined it. That's what we're criticizing. You try telling Oliver Wendall Holmes that the how cases are decided has to be determined in an Ivory tower.

You're agreeing with me. furiousxgeorge's "ivory tower bullshit" argument, which was expressly stated as an indictment of the entire legal system and all lawyers and judges, would, I believe, include Oliver Wendell Holmes, Jr. (but probably not Justice Holmes' father, Oliver Wendell Holmes).
posted by The World Famous at 6:14 PM on May 18, 2011


Because it would be nice if we set a path towards reducing the built in loopholes that allow police abuse instead of setting a path towards expanding them.

That path, I'm afraid, is going to have to be paved with legal decisions.
posted by The World Famous at 6:15 PM on May 18, 2011


TWF, it's time to stop making disingenuous characterizations of my arguments as you have done repeatedly throughout this thread.
posted by furiousxgeorge at 6:16 PM on May 18, 2011


Cite, please.
posted by The World Famous at 6:16 PM on May 18, 2011


I'm not playing games with you on this.
posted by furiousxgeorge at 6:18 PM on May 18, 2011


That's exactly what you're doing. Look, either you agree with the SCOTUS opinion or you don't. But don't expect everyone to agree with you when you appear to be arguing, essentially, that anyone with education and experience relevant to understanding the context of the opinion has no business discussing it precisely because of that education and experience. Arguing that someone who deals with the criminal justice system every single day of their career does not understand the real world of the criminal justice system is just ridiculous.
posted by The World Famous at 6:21 PM on May 18, 2011


Kids, let's play nice. no more pretending we're writing a dissertation here, okay? Cite's aren't mandatory; this is MetaFilter, not Wikipedia.

Cite's are nice, when offered, but pressing for them all the time gets to feel a little... rhetorically desperate.

Maybe a MeTa callout's in order if we need to continue this discussion?
posted by saulgoodman at 6:21 PM on May 18, 2011



You're agreeing with me. furiousxgeorge's "ivory tower bullshit" argument, which was expressly stated as an indictment of the entire legal system and all lawyers and judges, would, I believe, include Oliver Wendell Holmes, Jr. (but probably not Justice Holmes' father, Oliver Wendell Holmes).


TWF, if you're going to continue to be a dick I'll cite and then I'm pretty much done with you if you aren't going to back off the disingenuous bullshit.

Just because I say the South African legal system was a racist enterprise in which wealth and nationality were often determining factors in the possiblity of access to justice and the law was subservient does not mean I disagree with the legal opinions of Gandhi on the basis of he's a fucking lawyer.
posted by furiousxgeorge at 6:32 PM on May 18, 2011


Oliver Wendall Homes, Jr. did not support an Ivory tower view of law, but he recognized that law must be practical and in step with its society. Ours is a society in which poor blacks and other economically vulnerable people are routinely targeted for criminal prosecution at vastly disproportional rates.

It's not a practical ruling in the sense that it doesn't take the likely real-world social consequences of the precedent it sets fully into account (that is, it doesn't consider the likely social consequences of higher rates of forced entry into people's homes during police fishing expeditions--the disruptive impact on the peace and perceived security of a neighborhood in which these kinds of forced entries become commonplace, for instance, or other abuses, such as the increasingly frequent home invasion scams I alluded to earlier in the thread).

Elaborating on the Holmes, Jr. quote from before:
In 1881, Holmes published The Common Law, representing a new departure in legal philosophy. By his writings, he changed attitude to law. An excerpt from the opening passage captures the pragmatic theme of that work and of Holmes's philosophy of law: 'The life of the law has not been logic; it has been experience.'

In a dissenting opinion in Lochner v. New York (1905)[22] Holmes declared that the law should develop along with society and that the 14th Amendment did not deny states a right to experiment with social legislation.
Holmes was the prototype for the hypothetical activist judge bugaboo of the right.
posted by saulgoodman at 6:34 PM on May 18, 2011 [2 favorites]


Holmes was the prototype for the hypothetical activist judge bugaboo of the right.

I agree. My comment was in reference to furiousxgeorge's statement above that "Law exists so lawyers and judges can erect walls of impenetrable bullshit code words and precedents behind which they hide positions based on self motivated greed or ideology." Taken together with furiousxgeorge's comments about Ironmouth's "ivory tower," I understood the comment to be a general indictment of the entire legal system, including the law itself and all lawyers and judges. Furiousxgeorge has now, it seems, stated that that was not his intent (accusing me of lying about his prior statements but being nice enough to use the word "disingenuous" rather than "liar"). To the extent that I may have misunderstood the scope of his prior comments, I apologize.
posted by The World Famous at 6:42 PM on May 18, 2011


It strains credulity that you think I disagree with all lawyers, considering that I have cited a prominent lawyer in this very thread. At this point I will indeed call you a liar and ignore you going forward.
posted by furiousxgeorge at 6:44 PM on May 18, 2011


What did I lie about?
posted by The World Famous at 6:52 PM on May 18, 2011


Do you honestly not remember that many of the folks posting here in this thread have been following this case some time now since the early arguments, and have been anticipating this ruling and forming opinions of their own all along prior to reading this particular FPP on the subject? Because it doesn't take a lawyer to find and interpret the evidence of that.

Some guy in that previous thread had this argument:

Massively disagree. These guys are clowns. They can't get in there without a warrant. Its a home.

Seems reasonable, I just favorited the comment.

I'm guessing what's happening here is that when you believe in the inherent fairness and justness of the American legal system, you ultimately need to believe that most decisions of the Supreme Court are just. If you start believing that the Supreme Court is making increasingly unjust decisions, that calls into question your entire belief in whether justice can be served with our current system.

Evidence for that theory comes from this earlier statement:
when you have a recourse to the highest court of the land on whether evidence obtained in this situation is able to be excluded, then you don't have a police state.

That statement only works if the highest court of the land is working for the people.

Unfortunately, as the Supreme Court increasingly veers right, those who believe in Law & Order and a working system will also move to the right.

posted by formless at 7:03 PM on May 18, 2011 [1 favorite]


Erk, the last two sentences shouldn't be linked.
posted by formless at 7:04 PM on May 18, 2011


This is kinda interesting: a local teenager refuses to let police into his house to check for underage drinking. The police call his dad, who's on vacation. The dad refuses entry. The police say "welp, okay, that's your right, have a good night." (Caveat, this is Wisconsin, where drinking is pretty much a constitutional right. Also, these are rich white people.)
posted by desjardins at 7:19 PM on May 18, 2011 [1 favorite]


formless I think you're pretty much spot-on; Ironmouth seems to be justifying his faith in the correctness of the Supreme Court by arguing that everyone else has no experience with the legal system and therefore no rational basis to even discuss this. It's pretty disappointing, but people resort to pretty extreme 'othering' when a key part of their worldview is threatened.

I'm still waiting for someone to explain to me exactly what the logical or even rhetorical flaws in the dissenting opinion are; where the dissenting opinion says something that isn't true, isn't logical or doesn't make sense. Every time I've asked for that, all I've gotten is "I agree with the majority, what's wrong with the majority opinion?"...in other words, "No u!" - despite the fact that I've repeatedly stated the problems I find with the majority opinion.

Here's another one: their dismissal of the "reason foreseeability" test uses a hypothetical example that is frankly disturbing: whether or not police knocking on basically random doors and hearing "evidence destroyed" is a police-created exigent circumstances or a regular exigent circumstances. Holy false dichotomy, batman! Maybe "reasonable foreseeability" fails as a test there because it's not exigent circumstances at all?!

Fortunately that's basically a throw-away paragraph in the decision (and I've no doubt Ironmouth will stress that point so that his faith in the SCOTUS can remain untarnished by this decision) but it's basically accepting, in its premise, the idea of a world where the police might well try to catch bad guys by just going nigh-randomly house-to-house knocking on doors, listening for people on the other side to freak out, then kicking down the door and arresting them. If the police can even consider doing that, even if 100% of that evidence gets thrown out in court later on, the 4th Amendment is dead.

Look, the whole point of this case and the discussion about it is what test should be applied to determine whether or not evidence should be excluded at trial.

The only way this statement can possibly be true is if you think this decision cannot and will not impact police procedure at all. If you really believe that, fine; you and I will just have to disagree and see which of us turns out to be right (and believe me I would be happy to be wrong here!) But the 4th Amendment is not "the right to be secure...against going to jail as a result of unreasonable searches and seizures," it's the right to be secure against the unreasonable searches and seizures occurring at all.
posted by mstokes650 at 7:59 AM on May 19, 2011 [2 favorites]


Some guy in that previous thread had this argument:

Massively disagree. These guys are clowns. They can't get in there without a warrant. Its a home.

Seems reasonable, I just favorited the comment.


Well, let's look at that, OK?

The story linked to in that thread, from the LA Times said this:
Police officers who smell marijuana coming from an apartment can break down the door and enter if they have reason to believe the evidence might be destroyed, several Supreme Court's justices suggested Wednesday.

In the past, the high court usually has said police cannot enter a home or apartment without a search warrant because of the 4th Amendment's ban on "unreasonable searches and seizures."
Well it turns out the facts were way different than described in both the MeFi post and the article which did not mention the narrow question which was the basis for the case:
It is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. In this case, we consider whether this rule applies when police, by knocking on the door of a residence and announcing their presence, cause the occupants to attempt to destroy evidence.
That is the only thing that was dealt with in the case. That simple, small question. None of that was in the original post or the LA Times article. None of it.

The Court never even decided if indeed the police were right and an exigency did exist:
We need not decide whether exigent circumstances existed in this case. Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency. See Brigham City , 547 U. S., at 406 . The trial court and the Kentucky Court of Appeals found that there was a real exigency in this case, but the Kentucky Supreme Court expressed doubt on this issue, observing that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” 302 S. W. 3d, at 655. The Kentucky Supreme Court “assum[ed] for the purpose of argument that exigent circumstances existed,” ibid., and it held that the police had impermissibly manufactured the exigency.

We, too, assume for purposes of argument that an exigency existed. We decide only the question on which the Kentucky Supreme Court ruled and on which we granted certiorari: Under what circumstances do police impermissibly create an exigency?
So, far from ruling that there's a whole new class of warrantless searches allowed, as everyone who didn't read the actual ruling thinks, the Supreme Court did not even rule that this one case constituted a legal search. Think about that. Still don't understand?:
Any question about whether an exigency actually existed is better addressed by the Kentucky Supreme Court on remand.
see also:
Like the court below, we assume for purposes of argument that an exigency existed.
Got it? They are ruling only on the test applied by the lower court, not even on the facts of the case.

They didn't even say that the police did right in this case. They just said that the test the KY SC used to decide the case was wrong and use this other test:
we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment .
Now, please inform me, why, exactly this test is bad for determining whether or not the police are impermissibly creating the exigency upon which they rely for warrantless entry. Because that's all that was done here. They never even said this search was bad.

The only way this statement can possibly be true is if you think this decision cannot and will not impact police procedure at all

Read the fucking case. That is the legal issue here. There is nothing more, nothing less. It is supposed to affect police procedure and provide predictability as to how the police are supposed to act when they knock on a door.

Here's another one: their dismissal of the "reason foreseeability" test uses a hypothetical example that is frankly disturbing: whether or not police knocking on basically random doors and hearing "evidence destroyed" is a police-created exigent circumstances or a regular exigent circumstances.

OK, you're not going to like this.

The "destruction of evidence" rule has been the law of the land since 1990. Who voted for and against?

BRENNAN, MARSHALL, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., post, p. 495 U. S. 101, and KENNEDY, J., post, p. 495 U. S. 102, filed concurring opinions. REHNQUIST, C.J., and BLACKMUN, J., dissented.

That's right. Marshall, Brennan and Stevens, the ultra-liberals voted for it. It was the law of the land before many of the commenters here could read.

So the question is, what happens when the police create the exigency themselves? And there must be some test that both allows for the rule in Olsen to be applied and that prevents the police from entering the house based on a fake exigency.

And this is where the dissent fails and why this is an 8-1 decision. Ginsberg doesn't even provide a test. She focuses on only the facts of the case and says "no exigency." But cert was not granted on the facts. It was granted on the narrow question of what the test is. Got it?

This is how it works. If the police knock and say "police" you say get a warrant, or say nothing. If the police knock and say "Police, Open up" or "Police get on the floor we are coming in!" or start to open the door, and then you move to destroy evidence, the police have created the exigency and the evidence is properly excluded. The court is saying assert your rights or don't reply and you won't create the exigency.

Now somebody tell me a better test, and don't tell me "Ginsburg's test" because she doesn't provide one.
posted by Ironmouth at 11:10 AM on May 19, 2011 [2 favorites]


The only way this statement can possibly be true is if you think this decision cannot and will not impact police procedure at all

Read the fucking case. That is the legal issue here. There is nothing more, nothing less. It is supposed to affect police procedure and provide predictability as to how the police are supposed to act when they knock on a door.


Read my words. Like, you know, the rest of that paragraph you're quoting? I make it quite clear I expect this to affect police procedure, in contradiction to The World Famous's assertions that this will only ever matter inside a courtroom. But hey, keep failing to read the paragraphs that you're pulling quotes from and then reassuring yourself that I'm not making sense. That is not you behaving rationally; that is you acting out of feeling threatened. I'm not out to get you, really; I think this was a poor decision (though far the end of the world as we know it) and I am interested in explaining why I think so. That's all that's at stake here; in a word, nothing.

OK, you're not going to like this.

While you're at it, why don't you tell me how much pot I've smoked in my lifetime? (Hint: you don't actually know anything about me.) Or, May I gently suggest that you [do basically anything else] rather than waste your time telling me what I think or know or what my attitude is about something. What you could tell me, instead, is how any of the lower-court standards for determining police-created exigency conflict with Minnesota v. Olson, because I'm not seeing it, and if there is a conflict, that would definitely help me to make sense of this decision.

This is how it works. If the police knock and say "police" you say get a warrant, or say nothing. If the police knock and say "Police, Open up" or "Police get on the floor we are coming in!" or start to open the door, and then you move to destroy evidence, the police have created the exigency and the evidence is properly excluded. The court is saying assert your rights or don't reply and you won't create the exigency.

...it takes the incredibly naive view that law-abiding citizens have no reason to feel or act threatened by cops knocking on their door, and that a cop knocking on your door and shouting "It's the police!" does not carry any implication of "...so open up!" whatsoever. This sounds like legal fantasyland with no basis in real-world experience.


Now somebody tell me a better test, and don't tell me "Ginsburg's test" because she doesn't provide one.

Ginsburg doesn't need to provide one; there were already four tests in existence. All she has to say is "I don't see a problem here that gives us cause to re-write perfectly good rules." Now, were I the sole Justice on the Supreme Court, I'd look for a reasonable way to marry "Probable cause and time to secure a warrant" with "Reasonable foreseeability" in something like "Reasonable foreseeability in situations where probable cause exists". I would certainly try not to dismiss existing tests based on poor reasoning and replace them with something that relies on, in my opinion, very unrealistic expectations of both how police will behave and how people who have cops pounding on their doors will behave.
posted by mstokes650 at 3:40 PM on May 19, 2011


I make it quite clear I expect this to affect police procedure, in contradiction to The World Famous's assertions that this will only ever matter inside a courtroom.

I have not asserted that this will only ever matter inside a courtroom. If you think that I have, then please quote for me the language that I used that led you to believe that I had made such an assertion.

...it takes the incredibly naive view that law-abiding citizens have no reason to feel or act threatened by cops knocking on their door, and that a cop knocking on your door and shouting "It's the police!" does not carry any implication of "...so open up!" whatsoever. This sounds like legal fantasyland with no basis in real-world experience.

Sorry - I'm not dense, I'm just trying to understand, in the context of Kentucky v. King, what the relevance of that comment is. Are you arguing that, in the real world, there's no such thing as a situation where, the Court's words, "the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment?" If that's what you're arguing, are you also arguing that, therefore, Kentucky v. King has no relevance in the real world? I'm just trying to understand what you're saying. I'm not disagreeing with you at this point.

I would certainly try not to dismiss existing tests based on poor reasoning and replace them with something that relies on, in my opinion, very unrealistic expectations of both how police will behave and how people who have cops pounding on their doors will behave.

The factual question of whether and how fiercely the police "pound" on a door would, I assume, be part of the initial inquiry that would have to take place in order to determine whether the King test would even apply in the first place, though. Or were you using "pounding" as hyperbole?
posted by The World Famous at 3:50 PM on May 19, 2011


please quote for me the language that I used that led you to believe that I had made such an assertion.

I already quoted it once, but one more time, with feeling emphasis:
Look, the whole point of this case and the discussion about it is what test should be applied to determine whether or not evidence should be excluded at trial.

Both Ironmouth and I seem to agree you're wrong about this (Ironmouth maybe even more forcefully than I do), and that ultimately this is a question about police procedure in the field. I'm not suggesting that there's no relationship between the two, but...well, just read my last sentence here again.

Sorry - I'm not dense, I'm just trying to understand, in the context of Kentucky v. King, what the relevance of that comment is.


I'm arguing that, in the real world, the difference between a situation where cops are behaving in a threatening manner and a situation where cops are behaving like ordinary cops is...frequently not very distinct. Especially in the situations where this rule is ever likely to come up. Do the police you know generally act like they will happily take "no" for an answer when they have their minds set on something? At what point does that "won't take no for an answer" attitude cross the line from ordinary to threatening? The Supreme Court seems to see a bright, clear line there, where I see a lot of shades of gray.

The factual question of whether and how fiercely the police "pound" on a door would, I assume, be part of the initial inquiry that would have to take place in order to determine whether the King test would even apply in the first place, though. Or were you using "pounding" as hyperbole?

I'm assuming a good test will be able to be applied to a situation without relying on details like how loud a knock on the door was; that's one of the reasons I think this is not a good test. Curiously, avoiding that kind of thing was precisely one of the reasons the Supreme Court gave for dismissing the respondent's proposed rule:

If respondent’s test were adopted, it would be extremely difficult for police officers to know how loudly they may announce their presence or how forcefully they may knock on a door without running afoul of the police-created exigency rule.

posted by mstokes650 at 5:15 PM on May 19, 2011


I already quoted it once, but one more time, with feeling emphasis:

Ah. You apparently misunderstood me, then. What happens procedurally at trial certainly affects police procedure and conduct in the real world. Kentucky v. King is about what happens procedurally at trial. It will certainly have some effect on what the police do in anticipation of the King test being applied in court. Got it?

Both Ironmouth and I seem to agree you're wrong about this

Actually, neither of you think I'm wrong about it. It's just that you assumed I meant something that I didn't say, in spite of my explicit statement to the contrary.

I'm arguing that, in the real world, the difference between a situation where cops are behaving in a threatening manner and a situation where cops are behaving like ordinary cops is...frequently not very distinct.

OK. So you are, in fact, arguing that the very limited circumstances where the King test would apply only occur extremely rarely (i.e. a situation where the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment). Since the Court in King specifically stated that it was not considering the question of whether this was such a situation, why is your comment relevant in a discussion of King?

I'm assuming a good test will be able to be applied to a situation without relying on details like how loud a knock on the door was

OK. What test do you propose?
posted by The World Famous at 5:25 PM on May 19, 2011


Since the Court in King specifically stated that it was not considering the question of whether this was such a situation, why is your comment relevant in a discussion of King?

What Court specifically stated was:
Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.
The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.


Why does the Court hold that the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency?

Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either “ ‘Police, police, police’ ” or “ ‘This is the police.’
...
There is no evidence of a “demand” of any sort, much less a demand that amounts to a threat to violate the Fourth Amendment .


Do I need to spell it out further? I mean, I'm trying to assume you're not being deliberately obtuse, but unless I'm missing something, you seem to be suggesting that criticizing the reasoning on which the decision is based is not relevant to a discussion of the decision. In which case I'd love to know what the hell you think we should be discussing. The lovely fonts used in Supreme Court opinions? The professional white background on law.cornell.edu?


OK. What test do you propose?


So...much...repeating...myself....just read my last paragraph here.
posted by mstokes650 at 6:03 PM on May 19, 2011 [1 favorite]


Why does the Court hold that the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency?

Because it is bound by the facts established in the lower court.

I mean, I'm trying to assume you're not being deliberately obtuse, but unless I'm missing something, you seem to be suggesting that criticizing the reasoning on which the decision is based is not relevant to a discussion of the decision.

You're missing something.

So...much...repeating...myself....just read my last paragraph here.

The paragraph to which you linked was the reason I asked what test you propose when you then then said "I'm assuming a good test will be able to be applied to a situation without relying on details like how loud a knock on the door was." If you have no test to propose, that's fine. I get that you disagree with the King majority's asking whether or not the police violated or threatened to violate the Fourth Amendment prior to the exigency and that your disagreement seems based, at least in part, on your belief that there are few, if any, situations in the real world where a Fourth Amendment violation is not at least threatened, merely because of the force of law that any police action carries. I see your point and don't entirely disagree.

Ultimately, mstokes650, I don't think you and I are actually disagreeing. And that makes the tone of your comments directed at me all the more frustrating.
posted by The World Famous at 8:56 PM on May 19, 2011


Why does the Court hold that the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency?

It doesn't. The holding is that the exigency justified the warrantless search.

I think what you're asking is 'why does the Court assume that the officers did not violate or threaten to violate the Fourth Amendment prior to the exigency?' We all know that police officers sometimes tell lies, so it seems dangerous for a Court to just assume the truth of the police officers' account. Is that a correct reading of your question?

If not, ignore the following: the reason is that appeals courts (including the Supreme Court) examine questions of law, not of facts. Facts are dealt with by the trial court. The defendants in this case did not argue during trial that the police just burst in, or that they threatened to violate the Fourth Amendment. Pay careful attention to this sentence in the opinion:

Respondent argues that the officers “demanded” entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion.

In other words, none of the defendants made this claim during the trial. If they had got on the stand and said the police officers demanded entry, it would be in the trial transcript. They did not do so. Instead, they're relying on the trial judge's summary of events in his written opinion. The trial judge did indeed refer to the police officers 'demand[ing] entry', but elsewhere in the same opinion contradicts this. That's sloppy writing/editing on the judge's part, but it's not evidence. the judge wasn't present for these events and is not a witness. An error in the opinion of the trial court does not change the facts and is not evidence.

Now, it's one thing to complain that the trial Court delivered an opinion which inaccurately stated the facts. It's quite another to claim that the facts themselves have changed as a result. There is nothing else in the record to support this version of events. Barring the discovery of new information (which did not happen here) a defendant may not submit new factual evidence at appeal. You put your facts in the record during the trial process, and if the trial court incorrectly excludes any of that evidence at trial, then you appeal that decision. A key part of an attorney's job is to make a record by attempting to introduce all evidence that was available. If the attorney offers something in evidence and the court refuses to admit it, the fact of the offer still becomes part of the trial record. The jury may not get to hear about it, but an appeals court can look and say 'well, yes, that would have been admissible, and I see here that you indeed attempt to introduce that evidence and were improperly denied.' If the attorney had evidence but did not attempt to introduce it, then that is the attorney's fault. Even if the judge is an ass, it's the attorney's job to plan ahead and make a record that can be shown to the appeal court. Without making a proper record, there isn't enough information for the appeals court to judge whether a trial was fair or not.

Justice Ginsburg's dissent is hopelessly flawed. She cites US v. Johnson to argue that the police could have 'post[ed] officers on the premises while proceeding to obtain a warrant authorizing their entry' instead of knocking on the apartment door. She goes on:
In Johnson, the Court confronted this scenario: standing outside a hotel room, the police smelled burning opium and heard “some shuffling or noise” coming from the room. 333 U. S., at 12 (internal quotation marks omitted). Could the police enter the room without a warrant? The Court answered no.
This is not true. In Johnson, a police officer acting on a tip went to a hotel room and smelled opium. He knocked on the door, responded to an inquiry by identifying himself as a Lieutenant, and heard shuffling noises. He waited, and then the defendant opened the door. The officer said he wanted to talk, and the defendant stepped back and admitted him into the room. The officer asked about the opium smell and the defendant denied there was any such smell. then the officer told the defendant that she was under arrest and he was going to conduct a search, which in due course turned up some opium.

The government did not claim that any exigency existed in that case. The improper aspect of the search took place because the officer entered before announcing his intent to conduct a search, and then performed an arrest based on his observations during that search (beginning with the fact that the defendant was alone in the room, something he did not become aware of until after he had entered).

Here (in Kentucky v. King), nobody disputes that an exigency existed. Respondent contends that law enforcement officers impermissibly create an exigency when they “engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.” (opinion, part C, emphasis added) The defendants say it's forseeable that people who fear imminent police entry will do things and make noise, and that those noises will afterwards be used as justification for warrantless entry.

OK...but if you think the police are about to come without a warrant, why do anything? If you do nothing at all, the police may come in anyway, but then their entry is illegal so none of the evidence is admissible. Yes, the police might lie about it, but then at the suppression hearing you make a record by saying 'Officer Krupke is a liar, there was no exigency. I stood there in silent fear and then he entered the room.' The only situation where it's logical to do anything like destroying evidence is one where a) you know the police are outside and plan to come in, b) you have a bunch of evidence that you'd rather they didn't find you with, and c) youdon't know about the 4th amendment and assume instead that they have the right to enter at will. If you do know about the 4th amendment you just sit tight and express your surprise and disappointment at their decision to enter without a warrant.

Yes, this means getting arrested, sitting in jail, and getting a court to agree that illegal entry took place. On the other hand, this strategy is much, much better than trying to get rid of all the drugs and hoping you didn't miss any so the cops will have to leave empty handed. Unless you don't know about the fourth amendment.
posted by anigbrowl at 9:04 PM on May 19, 2011 [2 favorites]


Here (in Kentucky v. King), nobody disputes that an exigency existed.

Actually the exigency was assumed for the purposes of arguing which standard to use. Also, the trial court held a supression hearing, determined there was an exigency and the the defendant was convicted. The appeal was taken and the defendant won. The case was appealed to ky supremes, who applied their test and found for the defendant. It was appealed to the Supreme court, which indicated that the test was wrong and remanded to the KY Supremes to decide whether an exigency existed based on the application of the new test.
posted by Ironmouth at 7:05 AM on May 20, 2011


What you could tell me, instead, is how any of the lower-court standards for determining police-created exigency conflict with Minnesota v. Olson, because I'm not seeing it, and if there is a conflict, that would definitely help me to make sense of this decision.

Uh, you do understand that while they may or may not conflict with Olsen, they conflict with one another?

One of the primary reasons cert is granted is because there is a split in the lower courts and the Supreme Court is stepping in to decide what standard will be used. So it is immaterial whether the lower courts standards are "ok"--the problem is that they conflict with one another. This would mean different constitutional rights for different people. That is bad. So you must propose a test. That is why we are all asking you to provide one.

And this is where Ginsberg's dissent fails so spectacularly. She doesn't comment once in the KY Supremes' test, the different test proposed by the defendant, or provide any test of her own.

As for why KY supremes' test or the defendant's test isn't good enough, its all in the opinion--they provide no clear guidance to an officer on the ground as to how he or she is supposed to avoid creating an exigency him or herself.
posted by Ironmouth at 7:37 AM on May 20, 2011


TWF: The paragraph to which you linked was the reason I asked what test you propose when you then then said "I'm assuming a good test will be able to be applied to a situation without relying on details like how loud a knock on the door was."

Okay, I will spell it out yet more clearly. Under my proposed "Reasonable foreseeability in situations where probable cause exists" standard, the volume of the police's knock on the door is completely irrelevant, because if the police knock on the door of someone they have probable cause to suspect of a crime, and announce they are the police, it is reasonably foreseeable that the people on the other side of the door may react with panic and/or attempts to destroy evidence; the police created the exigency by announcing their presence. The problematic examples the Court used for "reasonable foreseeability" described situations where there was insufficient probable cause; the problems the Court found with the "probable cause and time to secure a warrant" test are at least limited, as police are not required to obtain a warrant at the earliest possible moment, they are only required to obtain a warrant if it is reasonably foreseeable that the course of action they plan to take (e.g., knocking on the suspects door) may require them to have a warrant.

anigbrowl: Now, it's one thing to complain that the trial Court delivered an opinion which inaccurately stated the facts. It's quite another to claim that the facts themselves have changed as a result.

I am not claiming that the facts were inaccurately stated; however, the question of whether or not the police demanded entry or not is only relevant because of the standard the Supreme Court chose to make their test. I brought up the facts of this case because The World Famous seemed to think my comments about police pounding on doors were irrelevant to a discussion of this case, a misunderstanding which (I think) seems to have been remedied at this point.

Yes, this means getting arrested, sitting in jail, and getting a court to agree that illegal entry took place. On the other hand, this strategy is much, much better than trying to get rid of all the drugs and hoping you didn't miss any so the cops will have to leave empty handed. Unless you don't know about the fourth amendment.


You've shifted the responsibility for preserving peoples' 4th Amendment rights from the police onto the people. AFAIK, you're not supposed to be required to know about your rights in order to be able to enjoy them.
posted by mstokes650 at 8:21 AM on May 20, 2011


ecause if the police knock on the door of someone they have probable cause to suspect of a crime, and announce they are the police, it is reasonably foreseeable that the people on the other side of the door may react with panic and/or attempts to destroy evidence; the police created the exigency by announcing their presence.

That's what we call the exception eating the rule. Under stare decisis you can't use that standard because it reverses Olsen Your rule states the police cause the exigency every single time they approach a door with probable cause and every criminal with evidence may destroy that evidence upon the approach of the police.

But this thread has gotten way, way better. People are actually reading the cases and talking about what was actually decided! Bravo [non-sarcastically] mstokes650!
posted by Ironmouth at 9:51 AM on May 20, 2011


Yes, this means getting arrested, sitting in jail, and getting a court to agree that illegal entry took place. On the other hand, this strategy is much, much better than trying to get rid of all the drugs and hoping you didn't miss any so the cops will have to leave empty handed. Unless you don't know about the fourth amendment.

You've shifted the responsibility for preserving peoples' 4th Amendment rights from the police onto the people. AFAIK, you're not supposed to be required to know about your rights in order to be able to enjoy them.


Destruction of evidence is a crime. The Fourth Amendment does not grant the right to violate criminal law. The only legal course of action is to not answer the door or tell them to go away.
posted by Ironmouth at 9:57 AM on May 20, 2011


Thanks, mstokes650. As I said above, it looks like your position is based on the assumption that every knock on a door by the police, regardless of the circumstances, constitutes at least the threat of a 4th Amendment violation. I just barely and only slightly disagree with that assumption, actually. I don't think there's a qualitative difference between "[Knock Knock] Police!" and "[Knock Knock] Police! We're coming in whether you like it or not!"

You've shifted the responsibility for preserving peoples' 4th Amendment rights from the police onto the people.

It's the government's responsibility not to violate 4th Amendment rights. The way that responsibility is enforced has always been for the people to have a recourse against the government if those rights have been violated. In other words, it has always been the responsibility of the citizens to preserve their own rights by availing themselves of the available remedies when those rights have been violated. As I said above, the exclusionary rule is a really weak remedy, since it only comes into play if there is, in fact, evidence found that incriminates the citizen. But Kentucky v. King does not change the fact that it is the citizen's responsibility to preserve his or her own rights.
posted by The World Famous at 10:32 AM on May 20, 2011


As I said above, the exclusionary rule is a really weak remedy, since it only comes into play if there is, in fact, evidence found that incriminates the citizen.

There are 42 U.S.C. Section 1983 and Bivens remedies, but the damages would likely be nominal if there was no prosecution.
posted by Ironmouth at 11:19 AM on May 20, 2011


Yeah, those remedies are, as far as I can tell, a joke.
posted by The World Famous at 11:22 AM on May 20, 2011


Actually the exigency was assumed for the purposes of arguing which standard to use.

True; I'm going off the fact that respondents (King et al.) are making the same assumption within the scope of this argument. I'm not suggesting that the SC is engaged in any fact-finding.

Moving on to mstokes650...
it is reasonably foreseeable that the people on the other side of the door may react with panic and/or attempts to destroy evidence

Well, only if they'are actually engaged in some criminal activity or have evidence of same. If the police were to knock on my door right now I'd be perplexed, but not panicked. Now, it's true that I might be among a class of people that the police habitually discriminate against, but if I were actually law-abiding I might not even have any evidence to destroy. As pointed out above, your proposed standard would seem to require police to get a warrant before knocking on a door or talking to anyone.

I'm wondering if your real position isn't simply that drug offenses aren't serious enough to justify entry without a warrant, whereas you'd probably be quite happy for police to enter a dwelling without a warrant if they saw someone wearing bloody clothes and carrying a weapon, say. If this is the case, then I'd agree with you as a matter of policy, but getting that changed would require persuading legislators to lower the priority for drug arrests in some fashion. That's not something the courts can do; constitutionality isn't an assurance of quality, so it's quite possible to have something that's legally watertight even though it's dreadfully bad policy.
posted by anigbrowl at 4:07 PM on May 20, 2011


Ironmouth: Under stare decisis you can't use that standard because it reverses Olsen

Olsen, as I understand it, just rules that the cops may enter warrantlessly in situations where there's imminent destruction of evidence. It seems possible to me to rule that unless the destruction of evidence was imminent before the police announced their presence, then the exigency was police-created, without completely contradicting Olsen. If the destruction of evidence was already imminent, then the exigency is clearly not police-created.

TWF: It's the government's responsibility not to violate 4th Amendment rights. The way that responsibility is enforced has always been for the people to have a recourse against the government if those rights have been violated. In other words, it has always been the responsibility of the citizens to preserve their own rights by availing themselves of the available remedies when those rights have been violated.

Thinking some more about this, I considered a comparison to Miranda warnings - another situation where you can't effectively exercise your rights if you don't know about them; but in that situation the police are required to inform you of your rights. Refusing to cooperate with the police in a criminal investigation is a crime, but you have the right to remain silent; the police can't coerce you to answer their questions. "Destroying the evidence," in Kentucky v. King, might be likened to lying to the police - it's illegal, but it's also something that generally only makes sense if you don't understand your rights. Importantly, the Court didn't draw the line, with the 5th Amendment, at merely saying "If the police coerced the answers out of you or threatened to do so, before you lied to them, that stuff's inadmissible;" the Court also requires the police to inform you of your rights.

So, if the police, when they knock on a door, were required to inform the residents that they didn't have a warrant and you were within your rights to ask them to come back with a warrant, I don't think I'd have as much of a problem declaring the police weren't causing an exigency just by knocking on your door. Do you see the distinction?

anigbrowl: Well, only if they'are actually engaged in some criminal activity or have evidence of same.

It's impossible to know that for sure until post-trial; but we're talking about situations where the police have probable cause. Do the police have probable cause to search your house right now? No. That was the point of my marrying reasonable foreseeability with probable cause like that - nixing examples like yours (and the very similar ones the Court used to dismiss reasonable foreseeability on its own).

As pointed out above, your proposed standard would seem to require police to get a warrant before knocking on a door or talking to anyone.


Not anyone; anyone they have probable cause to suspect of a crime (and only if no other pre-existing exigent conditions exist). That's quite different. And yeah, requiring the cops to get a warrant in those situations is pretty much exactly what I'm after.

I'm wondering if your real position isn't simply that drug offenses aren't serious enough to justify entry without a warrant, whereas you'd probably be quite happy for police to enter a dwelling without a warrant if they saw someone wearing bloody clothes and carrying a weapon, say.


Way to ruin that butcher's day and a whole bunch of Halloween parties, officers! No, that's not really my position; you're partly right, in that I might be willing to grant a hypothetical exception to "police-created exigencies don't count" for situations where there's a threat of immediate physical harm (e.g., the cops announce "Police!" and the person on the other side grabs a gun and a hostage); even though I think the police basically did create that exigency I don't think it should make everything they find after kicking the door open inadmissible. Although, I assume that'd really only be an issue if the original crime was worse than taking hostages and getting into a police standoff...
posted by mstokes650 at 3:17 PM on May 21, 2011


East Manitoba Regional Junior Kabaddi Champion '94 writes "I feel I should point out that this ruling only seems to apply if the police have evidence that there are illegal drugs in the house. That is not the impression I got from the comments here."

Well if it's a prostitution bust it's not like they have to worry about the suspects flushing a half dozen whores down the toilet.

adipocere writes "I am starting to think that cinderblock walls and airtight homes are the only remedy aside from a 28th Amendment that says, 'No, seriously, The Fourth. Go read it again. We're not kidding.'"

Make sure you fill the cavities with reinforced concrete; a hollow cinder block wall isn't more more protection than a sheathed wood frame wall.

Talez writes "It doesn't matter because even if the cop is mistaken they still thought they smelt it in good faith."

This is the thing that gets me; smelling pot is a pretty weak basis for probably cause. Even though no one in my household does drugs you can stand at my back entrance on any calm spring/summer/fall day and smell pot because of the smoke wafting over from the town house complex across the alley. It's not like our noses sniff in stereo. How could a cop possibly determine which door in an apartment building was giving off the smell?

Ironmouth:
"Things like this are precisely why my Dream Home has 18″ thick, steel-reenforced concrete walls, all steel entry doors with high-security locks, and full-time video surveillance with off-site backups
"ineffective against warrants. Which is how the majority of these seizures occur. This is about the exception to the rule. When should it come into play. Where exactly do you think that should be?"

I think the goal was to be effective against warrantless searches.

Bovine Love writes "Seems to me your best protection is to keep your shit in boxes. No plain view."

I like to keep my shit in a nice big box called my home.

posted by Mitheral at 9:10 PM on June 8, 2011


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