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
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.christ what an asshole
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.
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.
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.
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)).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.
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).
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."So which is it?
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.
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.posted by AceRock at 3:22 PM on May 17, 2011 [1 favorite]
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."
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.posted by Shit Parade at 3:49 PM on May 17, 2011
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).
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."
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.
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.posted by Shit Parade at 10:48 PM on May 17, 2011
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.
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]
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 neighborhoodsIf that doesn't encourage comparisons to other historical ghettofication projects, I don't know what would. The poverty is horrifying in Saginaw.
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.'Holmes was the prototype for the hypothetical activist judge bugaboo of the right.
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.
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.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:
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."
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.
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.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?:
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?
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.
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.
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.
"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?"
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