The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.posted by LordSludge at 12:42 PM on January 14, 2011 [29 favorites]
Unless they smell weed.
...if, as a police officer, you say, 'I smell marijuana,' and then you hear the flushing, there's probable cause..."If "as a police officer" you hear a toilet flush from outside a residence, isn't that confirmation that you're much too late, that the game is over and the contraband is gone daddy gone? Wouldn't the sound of the flush be confirmation that the residence didn't contain any contraband anymore?
a) Cops may perform what is called a "Knock and Talk," at their discretion. In this circumstance, they knock on the door, ask if they can come in, ask if they can ask a few questions. They don't require a warrant for this, but you may refuse to comply.Basically, the case was about whether the cops performed the functional equivalent of a warrantless "Knock and Announce," thus causing the defendant/respondent (in the cops' eyes) to attempt to destroy his stash.
b) Cops may, with a warrant, perform a "Knock and announce," which basically means, "we're here, and if you don't open the door we're busting it open." They may not do this without a warrant, except in limited exceptions.
c) For the key exception here to apply, probable cause is needed, as well as "exigent circumstances." You need both.
d) The smell under the door is enough to create probable cause, but not exigent circumstances.
e) The sounds of what cops believe to be destruction of evidence MAY create exigent circumstances, but this is a question for the trial court in terms of determining whether the sounds were adequate, and SCOTUS wasn't deciding that here, because the Kentucky Supreme Court's decision said it was moot. And they said it was moot because...
f) In their view, the actions of the cops CREATED the exigent circumstances, rendering the seized evidence inadmissible.
JUSTICE SCALIA: It wouldn't technically be a Fourth Amendment violation, would it, if the police gave the impression that they had a warrant and were about to kick in the door? Is that a Fourth AmendmentI'm not going to place any bets here - it looks like either way, the case is going to be remanded, as Respondent's counsel requested the imposition of a test different from that which Kentucky used to dismiss the conviction - but the matter at hand was a Circuit court split on a key test for what constitutes 4th Amendment violations, and the transcript reads like the Justices weren't really so far apart, just looking for the right argument to make the decision on.
violation in and of itself?
MR. FARLEY: I don't believe so.
JUSTICE SCALIA: So your -- the -- the unlawfulness test would not prevent that?
MR. FARLEY: No, Justice Scalia, it would
not.
JUSTICE SCALIA: It would not? Oh. Maybe we have to come up with an unreasonable test, then.
"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."posted by Navelgazer at 4:19 PM on January 14, 2011 [1 favorite]
Oliver Wendell Holmes, Schenck v. United States
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.Ref: Schenck v. United States
my expectation of privacy in my house wouldn't extend to protect this person strangling meRight, because nobody has ever been attacked by a roommate or family member. Just doesn't happen.
Because they are only allowed to search a premises in order to determine criminal wrongdoing with a warrantWrong. Maybe it ought to be like that, but it isn't. See State v. McGacken, a case I find deeply troubling, and (much less seriously) McGee v. State.
a private dwelling cannot be intruded upon by government agents (be they local police or federal troops) without due cause.The Constitution protects you from unreasonable search and seizure. If there is a reasonable cause - that is, a belief that criminal activity is taking place from a reasoned consideration of the available evidence - then it's a reasonable search.
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posted by thsmchnekllsfascists at 12:38 PM on January 14, 2011 [8 favorites]