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Criminals Are Stupid
January 14, 2011 12:34 PM   Subscribe

'Conservative justices appear to agree police should be allowed to enter a suspect's residence without a warrant if they suspect evidence is being destroyed.' '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.''Scalia said the police couldn't go wrong by knocking loudly on the door. "Criminals are stupid," he said, and they often cooperate with police when they are not required to do so. They might open the door and let officers inside, or if not, the police can break in.''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." But during arguments in a drug case, the court's conservatives said they favored relaxing that rule when police say they have a need to act fast.'

'Five years ago, police had banged on the apartment door of Hollis King in Lexington, Ky., about 10 p.m. after they detected the smell of marijuana. They broke in the door when they heard sounds inside and arrested King for marijuana and cocaine possession.''"Everything done here was perfectly lawful," Justice Antonin Scalia said.

"There's nothing illegal about walking down the hall and knocking on somebody's door, and if, as a police officer, you say, 'I smell marijuana,' and then you hear the flushing, there's probable cause," Chief Justice John G. Roberts Jr. said.

Several of the court's liberal justices, who grew up in apartments in New York City, expressed surprise.

If the court rules this way, "aren't we just simply saying they [police] can walk in whenever they smell marijuana without bothering with a warrant," Justice Sonia Sotomayor said.

"We start with the strong presumption that the 4th Amendment requires a search warrant," Justice Ruth Bader Ginsburg added.

Since the war on drugs began in the 1980s, the Supreme Court has steadily given police more leeway to search cars, travelers and baggage. But the justices have been reluctant to permit searches of homes without a warrant.'

'Ginsburg said it was unclear what prompted the police to act. "It was kind of vague. They heard movement.... There was nothing about a toilet flushing."'
posted by VikingSword (147 comments total) 22 users marked this as a favorite

 
Goddamnit.
posted by thsmchnekllsfascists at 12:38 PM on January 14, 2011 [8 favorites]


> Scalia said the police couldn't go wrong by knocking loudly on the door. "Criminals are stupid," he said, and they often cooperate with police when they are not required to do so.

So it's stupid people who are exempt from being innocent until proven guilty. Thanks for the clarification!
posted by at by at 12:38 PM on January 14, 2011 [25 favorites]


'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,

SMOKING EVIDENCE ≠ DESTROYING EVIDENCE

No, wait....
posted by zarq at 12:40 PM on January 14, 2011 [1 favorite]


"Suggested"? What did they rule?
posted by Sys Rq at 12:40 PM on January 14, 2011 [8 favorites]


Wouldn't the actual smell of the dope smoke also indicate the evidence is being destroyed? I mean, the weed is literally going up in smoke.

So to protect the children and fight the wars on drugs and terrorism, let's just get rid of the 4th Amendment.
posted by birdherder at 12:41 PM on January 14, 2011 [2 favorites]


Isn't there a massive potential for abuse here? By not requiring oversight or approval for a warrant, what's stopping cops from claiming the smelled marijuana?
posted by thsmchnekllsfascists at 12:41 PM on January 14, 2011 [14 favorites]


They need to act fast, because if they don't act fast, someone might smoke some marijuana.

Uh-oh!
posted by mr_roboto at 12:42 PM on January 14, 2011 [8 favorites]


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.

Unless they smell weed.
posted by LordSludge at 12:42 PM on January 14, 2011 [29 favorites]


This is not encouraging.
posted by hippybear at 12:42 PM on January 14, 2011


Well at least Scalia as a strict constructionist is so consistent.

/sarcasm
posted by nola at 12:42 PM on January 14, 2011 [9 favorites]


You have got to be kidding me.
posted by kenko at 12:43 PM on January 14, 2011


...the court's conservatives said they favored relaxing that rule when police say they have a need to act fast.

Oh! You have to act fast? Why didn't you say so before! Yeah, we don't need that 4th Amendment that much. We didn't think anyone was in a hurry.
posted by rusty at 12:44 PM on January 14, 2011 [15 favorites]


Wow. A story that the conservative judges on the court are debating the points of a case with the liberal judges? *Before* a decision has been handed down?

This is an outrage!
posted by Slarty Bartfast at 12:44 PM on January 14, 2011 [6 favorites]


"Suggested"? What did they rule?

This is just a report on arguments. The decision, as always, is Kennedy's. I can't wait to find out what Justice Kennedy thinks!
posted by mr_roboto at 12:44 PM on January 14, 2011 [3 favorites]


Scalia said the police couldn't go wrong by knocking loudly on the door

So a knock had been established. Time between knock and answer? Only the 14th Amendment knows and 9 people, one who thinks a toliet is a factor.
posted by clavdivs at 12:46 PM on January 14, 2011 [1 favorite]


Kennedy is the critical vote here, not the "give the police whatever they want" justices. I for one will be very surprised if the court votes to overturn the longstanding prohibition against entering a home without a warrant absent very extraordinary circumstances.

I am sorry to say that I am not surprised that the "conservative" justices don't seem very interested in the actual text of the Fourth Amendment.
posted by bearwife at 12:47 PM on January 14, 2011 [5 favorites]


Wouldn't the actual smell of the dope smoke also indicate the evidence is being destroyed? I mean, the weed is literally going up in smoke.

Justice Kennedy said the same thing at oral argument. (From a Slate article: "Kennedy uses this opportunity to ask why the smoking of marijuana itself doesn't constitute the destruction of evidence.")
posted by John Cohen at 12:47 PM on January 14, 2011 [1 favorite]


Wow. A story that the conservative judges on the court are debating the points of a case with the liberal judges? *Before* a decision has been handed down?

This is an outrage!


Nowhere does it say that we are only allowed to make FPPs from decided cases. An FPP can be anything, as long as it's interesting. I find this interesting, and thought that others may too. I find it interesting how conservative justices reason, especially Scalia. I look forward to your contributions beyond snarky "outrage!", which really is a non-sequitor.
posted by VikingSword at 12:48 PM on January 14, 2011 [3 favorites]


The cognitive dissonance required to synthesize "small government! personal responsibility!" and "fuck you, 4th amendment" into a coherent belief system is enough to make my head explode.
posted by auto-correct at 12:48 PM on January 14, 2011 [43 favorites]


Well speed is always of the essence in police work, is it not? Barge away!
posted by Mister_A at 12:50 PM on January 14, 2011


Is this the part where, because of our renewed commitment to civility in public discourse, I refrain from calling Scalia a pig fucker?
posted by Devils Rancher at 12:51 PM on January 14, 2011 [10 favorites]


Is this the part where, because of our renewed commitment to civility in public discourse, I refrain from calling Scalia a pig fucker?

Hahaha, I thought we were all in agreement:

It's always okay to call Scalia a pig fucker, as long as it's consensual pigfucking.
posted by thsmchnekllsfascists at 12:53 PM on January 14, 2011 [4 favorites]



The fourth amendment was once upon a time a one hundred pound armored shield protecting the citizenry against an over bearing government. Today? Not so much. More like a one ounce crucifix.
posted by notreally at 12:54 PM on January 14, 2011 [6 favorites]


I'd refrain just out of civility to pigs.
posted by Zozo at 12:54 PM on January 14, 2011 [9 favorites]


previously on metafilter
posted by DaddyNewt at 12:55 PM on January 14, 2011


Okay, what if you're actually on the toilet when the cops knock?
posted by Devils Rancher at 12:56 PM on January 14, 2011 [8 favorites]


Nowhere does it say that we are only allowed to make FPPs from decided cases. An FPP can be anything, as long as it's interesting. I find this interesting, and thought that others may too. I find it interesting how conservative justices reason, especially Scalia. I look forward to your contributions beyond snarky "outrage!", which really is a non-sequitor.

Well, see, though, this post is outrage-filter. What's more, it's incredibly misleading outrage-filter, and that makes it doubly outrageous.
posted by Sys Rq at 12:56 PM on January 14, 2011 [2 favorites]


Isn't "I smelled marijuana and heard a toilet flush" something a police officer could claim 100% of the time he wants to search without evidence? How is that okay?
posted by callmejay at 12:58 PM on January 14, 2011 [30 favorites]


Oh! You have to act fast? Why didn't you say so before! Yeah, we don't need that 4th Amendment that much. We didn't think anyone was in a hurry.

It was written hundreds of years ago. It would take a fortnight to get a warrant! Then again smoking a little cannabis wasn't a crime back then.
posted by birdherder at 12:59 PM on January 14, 2011 [1 favorite]


Here's what I find interesting about Scalia's ""Criminals are stupid," he said, and they often cooperate with police when they are not required to do so. They might open the door and let officers inside, or if not, the police can break in."

It means that in effect, he's already decided that the people inside are criminals. But aren't the police supposed to investigate possible crimes, and therefore the people inside might be criminals, but then, might not be? Aren't they innocent until proven guilty? If so, why call them already guilty as in "criminals"? Further, anyone who decides to go the extra mile in making the police work easier, is therefore automatically considered "stupid"? I suppose, if your outlook is that the police will always look to do you as bad as possible, then yes, it's "stupid". I mean if you are innocent and think that the police are simply trying to get the guilty rather than just pin the crime on the innocent, you might be tempted to give up your rights to make their work easier - but that presumes indeed that the police are acting with some degree of objectivity. Clearly, in practice that's often wrong, and so indeed it is "stupid", but it's interesting to see Scalia endorse such a cynical view. Finally, I like how it doesn't matter either way, because if you open, you're "stupid", and if not, they'll just break in anyway, so fuck you. Aaah, the conservatives, always in the corner of the jackbooted thugs - the "limiting of government", and respect for rights and freedoms only refers to limiting compassion. Incidentally, I always laugh when I hear that Scalia is a "lion" of the supreme court and a great conservative intellectual. Reading him, whether it's about torture or almost anything else, Scalia mostly struck me as a thug (exemplified perfectly when he exited a Catholic Church after attending mass and made an obscene gesture at journalists - everything he is in a nutshell, the militant piousness, and the raw thug that sticks out from underneath it all).
posted by VikingSword at 1:01 PM on January 14, 2011 [38 favorites]


High court. Heh heh.
posted by hellbient at 1:03 PM on January 14, 2011 [4 favorites]


What's more, it's incredibly misleading outrage-filter, and that makes it doubly outrageous.

What's misleading? Can you specify what exactly in the FPP is misleading and I'll address that.
posted by VikingSword at 1:03 PM on January 14, 2011


Related Canadian Version.

A Gatineau, Que., man is demanding an apology from police after his home was raided at gunpoint Thursday.

Oliver MacQuat said around 7:30 p.m. Thursday a team of armed police officers entered his rural home on Montée Paiement with guns drawn, on the assumption they were busting a marijuana grow-op...

..."A senior officer came in and said there is a skunk … everything is clean," MacQuat said.

"You could see they were all embarrassed and genuinely sorry. They all apologized"

posted by chugg at 1:05 PM on January 14, 2011 [1 favorite]


Note to self: acquire a skunk.
posted by hellbient at 1:08 PM on January 14, 2011 [1 favorite]


"Criminals are stupid," [Scalia] said, and they often cooperate with police when they are not required to do so. They might open the door and let officers inside ...

"Dave, come on man, open up. I think the cops saw me ..."
posted by octobersurprise at 1:09 PM on January 14, 2011 [2 favorites]


Related Canadian Version.

Reminds me of the British case:

"ANTI-drugs officers were convinced they had uncovered a cannabis factory when a police helicopter detected a suspicious building.
The onboard thermal imaging camera identified what looked like a clear case of a heating system to cultivate the illegal weed.
But police were left glowing with embarrassment when they swooped on Pamela Hardcastle’s semi – and found the family’s guinea pigs Simon and Kenny being kept warm by an electric heater."

posted by VikingSword at 1:09 PM on January 14, 2011 [3 favorites]


Meanwhile, in England...
posted by Faint of Butt at 1:09 PM on January 14, 2011 [1 favorite]


Curse you, VikingSword.
posted by Faint of Butt at 1:09 PM on January 14, 2011


I'm ready for Scalia and Thomas to no longer be in any position of power. Their stupidity has no limit.
posted by Mister Fabulous at 1:12 PM on January 14, 2011


Webcams embedded in cop uniforms. Always on, always live streaming, all of it archived, all of it public.

If I'm gonna live in a surveillance state, I damn sure want the cops under surveillance, too.
posted by BitterOldPunk at 1:13 PM on January 14, 2011 [39 favorites]


You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?
"In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all." (January, 2011)

HYPOCRITICAL DICK.
posted by Iridic at 1:17 PM on January 14, 2011 [11 favorites]


What's misleading? Can you specify what exactly in the FPP is misleading and I'll address that.

I already did. The article makes it seem, if one is not paying close attention, like there has been a ruling on the matter, and that this is a grave miscarriage of justice that everyone should be up in arms about. There hasn't, and it isn't.
posted by Sys Rq at 1:17 PM on January 14, 2011


VikingSword: "But police were left glowing with embarrassment when they swooped on Pamela Hardcastle’s semi – and found the family’s guinea pigs Simon and Kenny being kept warm by an electric heater.""

♫ Set your piggies free... ♪
posted by zarq at 1:18 PM on January 14, 2011


Okay, what if you're actually on the toilet when the cops knock?

Your obligation is to put your pants on and attempt to crap them.
posted by a robot made out of meat at 1:19 PM on January 14, 2011 [1 favorite]


Wow...
posted by orbis23 at 1:21 PM on January 14, 2011


That's good. If you to shoot somebody, you can use the South Park "He's coming right at us" defense.

If you need to break into somebody's house, you can use the Scalia "I smell marijuana" defense.
posted by Joey Michaels at 1:22 PM on January 14, 2011


The decision, as always, is Kennedy's. I can't wait to find out what Justice Kennedy thinks!

I wouldn't wish harm on anyone, of course, but wouldn't it be great if Kennedy woke up and realized he needed to take up a new full time career as painter of landscape watercolors down in New Mexico? In the next 2 years? Sounds pretty relaxing to me.
posted by Justinian at 1:24 PM on January 14, 2011 [2 favorites]



I don't know what you liberals are so bent out of shape about. I have it from some very credible sources (facebook) that there is an elite cadre of middle aged, overweight, balding men armed with hunting rifles and extended magazine Glocks just itching to commit treason in the face of tyranny by the state.

We have nothing to worry about. These are top men.
posted by Pogo_Fuzzybutt at 1:26 PM on January 14, 2011 [7 favorites]


"The article makes it seem, if one is not paying close attention, like there has been a ruling on the matter, and that this is a grave miscarriage of justice that everyone should be up in arms about. There hasn't, and it isn't."

No, it does not. Not only have I made it clear, in several places in the FPP, that the case is being decided and not a done deal by use of language as f.ex. "If the court rules this way", (one of many instances) but by actually providing a link that focuses on oral arguments in current cases. Of course, a reader who has an agenda or who doesn't bother to read the actual words of the FPP will read into any FPP anything they wish. Such appears to be the case with you, but that does not describe the situation for most readers. Also, if you don't find the subject of the FPP interesting - the (to me) very interesting issue of legal arguments - or find the FPP deficient, flag it and move on.
posted by VikingSword at 1:27 PM on January 14, 2011 [4 favorites]


This isn't about the instances where a bunch of gang bangers are holed up in a project apartment and getting rid of all the evidence while the police patiently wait outside. It is about the innocent people in a low-rent apartment complex somewhere, hearing a knock on the door, only to have a bunch of cops barging in commando style when the flush their shit down the toilet and scaring the shit out of a bunch of kids playing the Wii. Do you think they're going to cooperate with the police in 5, 10, 15 years down the road? Or are they always going to remember being scared shitless because some cop smelled pot in an apartment complex?
posted by geoff. at 1:28 PM on January 14, 2011 [6 favorites]


If Scalia is assuming criminals are uniformly stupid, surely police don't need a pretext to break in, they can just knock on the door and be let in, leaving the Fourth Amendment intact. (He is right, though, that knocking and asking to be let in works more than one would perhaps expect (which would be never).)
posted by hoyland at 1:30 PM on January 14, 2011 [1 favorite]


Here's what I find interesting about Scalia's ""Criminals are stupid," he said, and they often cooperate with police when they are not required to do so. They might open the door and let officers inside, or if not, the police can break in."

"Law and Order" = Us and Them = Blacks and Whites = Smart and Ignorant

Scalia and Roberts and their ilk continue to spout the ages-old elitist horseshit that there are those among us that are less equal than the "rest of us". That is their square peg that they insist on hammering into our round hole at every opportunity. Make no mistake, their worldview comes first, and their legal philosophy (and responsibility to all citizens) comes second.
posted by Benny Andajetz at 1:31 PM on January 14, 2011 [6 favorites]


Scalia said the police couldn't go wrong by knocking loudly on the door. "Criminals Justices are stupid," he said, and they often cooperate with police when they are not required to do so.
posted by malocchio at 1:33 PM on January 14, 2011 [7 favorites]


The best way to protect your constitutional rights is to get a steel door, with a steel jamb, and a vertical deadbolt. Fill the door with concrete and then I'll bet you the police will give you a few minutes to look over the warrant before kicking in your door. What would cops have to do if we didn't have drug prohibition and how does one come to the conclusion that catching someone with a bit of weed is a fair trade for curtailing a constitutional protection?
posted by Tashtego at 1:34 PM on January 14, 2011 [1 favorite]


The article makes it seem, if one is not paying close attention, like there has been a ruling on the matter

To me, it's pretty clear by just reading the headline of the article. Perhaps you should read more carefully rather than complaining about the article/post.

I think the article was probably published at least partially to expose a huge potential travesty of justice before it happens, and possibly influencing the court to not rule that way because it has already been shown that a) the media will pick up on it and b) they will show that such a decision is ridiculous. I don't know that this tactic would ever work, but it is worth a shot.
posted by snofoam at 1:36 PM on January 14, 2011 [1 favorite]


But during arguments in a drug case, the court's conservatives said they favored relaxing that rule when police say they have a need to act fast.

This is in the article and in the post and it's not at all well grounded in argument. (Which is another reason why this post is outragefilter.)

The conservatives seem to have favored interpreting the police practice according to the facts of this case as being allowed under the exitgent circumstances exception. The liberals seem to have not favored allowing the police practices used in this case. They're not talking about making the exigent circumstances rule broader, or if they are, the evidence isn't in the article.

In fact, you could write an article that would be just as well grounded in fact (that is, badly) that said "LIBERAL JUSTICES CONSIDER PREVENTING POLICE FROM TAKING ACTION IN EMERGENCY CIRCUMSTANCES" since destruction of evidence has been considered "exigent" in the past.

The Washington Post article is calmer and much better.

It means that in effect, he's already decided that the people inside are criminals.

Yeah, oddly enough hypothetical people don't have the presumption of innocence.
posted by Jahaza at 1:37 PM on January 14, 2011 [2 favorites]


Just out of curiosity, is there marijuana-scented incense?

Because I've kinda got an upset stomach and I feel a lawsuit coming on.....
posted by BitterOldPunk at 1:37 PM on January 14, 2011 [5 favorites]


Massively disagree. These guys are clowns. They can't get in there without a warrant. Its a home.
posted by Ironmouth at 1:44 PM on January 14, 2011 [3 favorites]


Yeah, oddly enough hypothetical people don't have the presumption of innocence.

Especially in the hypothetical world where any time the police decide to break in without a warrant the hypothetical people inside are always 100% criminals, never any mistakes. Meanwhile, back here on the real Earth, hypothetical constructs may become the grounds for quite real consequences. Which is why it's worth discussing those hypotheticals. And why the legal reasoning is interesting enough in an of itself to merit an FPP, IMHO.
posted by VikingSword at 1:44 PM on January 14, 2011 [2 favorites]


callmejay : Isn't "I smelled marijuana and heard a toilet flush" something a police officer could claim 100% of the time he wants to search without evidence?

Exactly! The things the police can claim are warrentless-search worthy are smells and sounds? Things that are completely ethereal and fleeting. There is no way to prove any of it, and it will always come down to the word of the homeowner versus that of the cop, and the law always sides with the word of the cop.

It's complete and utter bullshit, and it'll put yet more unrestricted power into the hands of those that already have way too much.
posted by quin at 1:51 PM on January 14, 2011 [2 favorites]


Yeah, a good post about the legal reasoning would be a good post. Instead we've got a hyperventilating LA Times article, a link to wikipedia, and a link to summaries of a couple dozen cases (which probably would have been a good post in itself.) Then we've got your comments, which are not a good discussion of the legal reasoning. How can we tell? When you dismiss one side as "jackbooted thugs", you're not having a good discussion of the legal reasoning.

Your insults aside, Scalia is making a point about hypothetical criminals. You are all ticked off because "he's already decided that the people inside are criminals." Of course he has. That's the whole point. He's making a point about hypothetical criminals. In order to do so he has to discuss criminals!
posted by Jahaza at 1:54 PM on January 14, 2011 [1 favorite]


...and it will always come down to the word of the homeowner versus that of the cop...
As long as the homeowner survives the invasion. That big black remote control in your hand sure looked like a 9mm...
posted by Thorzdad at 1:56 PM on January 14, 2011 [4 favorites]


Yeah, a good post about the legal reasoning would be a good post.

If you don't like this one, flag it. Alternatively, make a better one. You don't like the LA Times article, and prefer the WaPo. Go to it.
posted by VikingSword at 1:59 PM on January 14, 2011


He's making a point about hypothetical criminals. In order to do so he has to discuss criminals!

Because hypothetically we're all criminals.
posted by JaredSeth at 2:00 PM on January 14, 2011 [1 favorite]


Yeah, a good post about the legal reasoning would be a good post.

Yeah, that would've been nice.

Anyway, I just listened to the argument audio on the official SCOTUS site (PDF transcript here, recap from the delightful SCOTUSblog here), and a couple of things stood out to me: (1) There was a LOT of laughter in the Court during this argument, and (2) all the attorneys on both sides sounded incredibly young. The Respondent's attorney in particular seemed not to understand how the Supreme Court works -- you're not there to retry your particular case, you're there to argue a legal question. I loved how the Chief Justice was like, "It's your case and all, but you might want to move on is all I'm saying," and yet she keeps going with the facts in the case rather than the underlying legal issue. By the time she was admitting that she didn't know what "unlawful" means, I was cringing. Towards the end of her allotted time, I thought she was going to cry.

Seriously, this was poorly-argued on both sides, in my layperson's opinion.

Sorry, carry on with the grar.
posted by Gator at 2:00 PM on January 14, 2011 [6 favorites]


Vikingsword: "Further, anyone who decides to go the extra mile in making the police work easier, is therefore automatically considered "stupid"? "

Well, I guess that answers the question of Scalia's intellect, then, doesn't it?
posted by symbioid at 2:02 PM on January 14, 2011 [2 favorites]


Sorry, I'm with Jahaza. The post is deceptive in implying a ruling and the linked article - while not as completely crap as most law reporting - doesn't do any favors when it makes assumptions about how justices would rule based on their questions during oral argument.

Here's my number one proof the LAT article is shit: it doesn't link to any transcripts or the original case or... anything. Instead it's sub-standard guessing with no backup. The closest thing to good background is used deceptively late in the article. Instead is makes an unfounded bit of personal analysis about how the justices would rule.

You want something worth reading on the matter, the first stop should be SCOTUSblog. How about a more neutral recap that doesn't draw conclusions? Or just the generic roundup page for the Kentucky v King case.

Note, by the way, that the LAT article doesn't bother to name the case till the until the 12th paragraph. The same point at which it finally identifies the core point of the case.

Oh wait, no I'm sorry - the point where it incorrectly identifies the point of the case. Because the question of imminence isn't actually something new that needs to be argued. The real issue here is that by knocking the police potentially create the imminent threat.
posted by phearlez at 2:10 PM on January 14, 2011 [1 favorite]


You want something worth reading on the matter, the first stop should be SCOTUSblog. How about a more neutral recap that doesn't draw conclusions? Or just the generic roundup page for the Kentucky v King case.

Like in the very link I provided in the FPP, where there's not only a link to the supreme court official site, but also a link to the transcript of the oral arguments. The FPP is not just composed of the LA Times article.
posted by VikingSword at 2:17 PM on January 14, 2011 [1 favorite]


He's making a point about hypothetical criminals. In order to do so he has to discuss criminals!

See, I read his comments as being about hypothetical residents in a house who have the cops outside their door thinking they smell marijuana.

There isn't any equivocation in the 4th Amendment about who it applies to. There is no claim that supposed criminality somehow vacates the need for a warrant. The text of it is included early in the comments for this thread, so you can scroll up and read it and see.

But all that aside, Kentucky doesn't have a medical marijuana law, so there are no circumstances under which having it is permissible under state law. However, it seems that you can possess up to EIGHT OUNCES of the stuff and have it be only a misdemeanor offence. That's right, owning just under a half-pound of pot will only result in misdemeanor charges against you.

So what we have, basically, is a state in which the cops are claiming they have the right to enter any residence they wish based on ephemeral "evidence", which nearly all the time will result in misdemeanor charges. Because, well, damn. I've been smoking pot for nearly 30 years now, and have NEVER possessed anything close to a half-pound of the stuff at any one time.

This is also a case which the KY Supreme Court already decided that the cops overstepped their bounds. So, the criminal justice system there has decided that it's more important to spend money and time and other resources on trying to circumvent the 4th Amendment of the national constitution than matters of actual importance. The fact that they found cocaine in the house is immaterial to the case, because the officers in question don't claim to have heard "snorting sounds" or smelled cocaine from outside the closed door of a private residence. Their entry is based entirely on the aroma of marijuana.

This is pretty fucked up, and I can only hope that Scalia will end up on the losing side of this.

How can we impeach a Supreme Court Justice, anyway? After everything I've heard about Scalia in the past year or so, from his paid speaking engagements at Tea Party events to his recent pronouncements about the Constitution not having any implicit acknowledgement of racial or gender equality to his willingness to speak before the incoming House freshmen (mostly freshmen) about "separation of powers"... he seems to be overstepping his bounds a lot in ways which make me question whether he is becoming a bit of an extrajudicial force advocating for his viewpoints outside the scope of his appointment.
posted by hippybear at 2:19 PM on January 14, 2011 [8 favorites]


Micromanaging your post isn't making it any better, VikingSword.
posted by phearlez at 2:21 PM on January 14, 2011 [1 favorite]


"Kennedy uses this opportunity to ask why the smoking of marijuana itself doesn't constitute the destruction of evidence.")

And now for some related real life experience...

Last year I tried the case of Darnell. Darnell was driving along on a perfectly clear afternoon. An officer recognized Darnell as someone he had arrested before. He also knew Darnell had recently skipped his court date and had an outstanding order for arrest for missing court. The officer put his blue lights on and Darnell immediately pulled into a driveway.

The officer walked to the driver's side of the car. He testified to the jury that the window was open an inch or so. The officer said he could smell the odor of unburned marijuana. He told Darnell to exit the vehicle, and Darnell repeatedly asked him why he stopped him. The officer then testified that Darnell reached into the back seat. At that point, the officer took his club and shattered the window. He tased Darnell while he was sitting in the driver's seat, pulled him out of the car, and threw him face down on the ground. The officer attempted to cuff Darnell, but when Darnell regained use of his muscular functions, he pulled his hands under his stomach. The officer tased him again. The second tasing occurred one to two seconds after Darnell regained the ability to control his arms. There was also a second officer present.

The officer testified that he believed Darnell was trying to swallow marijuana. He tried to reach into his mouth. He ordered Darnell to open his mouth. The officer said that he could see a green leafy substance in Darnell's mouth. He was not able to recover any marijuana. All of this was actually captured on the police video.

Darnell was charged with the misdemeanors of Resisting a Public Officer and Possession of Marijuana and the felony of Destruction of Evidence.

Here's the thing (and this takes us back to the FPP a bit): it isn't evidence until law enforcement has possession or custody of it. If the officer removed marijuana from Darnell's pocket and then Darnell knocked it out of the officer's hands and into a sewer grate, then that would be Destruction of Evidence. It would be evidence because the officer controlled it. Until the officer has it, it simply isn't evidence.

So that, Justice Kennedy, is why the smoking of marijuana is not the destruction of evidence. Unless the officer had it in his possession, it simply is not evidence.

In my case, the presiding Judge agreed with me and dismissed the felony charge at the close of the state's evidence. The jury acquitted Darnell of the possession of marijuana, but they did convict him of Resist, Obstruct, or Delay an Officer.

Juries do love them a good tasering.
posted by flarbuse at 2:21 PM on January 14, 2011 [19 favorites]


Micromanaging your post isn't making it any better, VikingSword.

You are right. There is no need to address every blatant misrepresentation of the FPP. I will no longer address such posters in this thread.
posted by VikingSword at 2:24 PM on January 14, 2011


Man, you know this should would be so much more cool if everyone on the court was high as fuck. Ya know, man?
posted by symbioid at 2:25 PM on January 14, 2011 [1 favorite]


There is no need to address every blatant misrepresentation of the FPP. I will no longer address such posters in this thread

Great, that leaves you free to address my criticisms of your arguments in your comments! How is calling conservatives "jackbooted thugs" a good way to argue about a supreme court case? How is Scalia making a hypothetical argument about criminals assuming the guilt of the parties involved in the case?
posted by Jahaza at 2:30 PM on January 14, 2011


"Criminals are stupid," [Scalia] said, and they often cooperate with police when they are not required to do so. They might open the door and let officers inside ...

"Criminals are a superstitious, cowardly lot," Wayne remarked, "so my disguise must be able to strike terror into their hearts. I must be a creature of the night, black, terrible..."

FTFY
posted by blue_beetle at 2:39 PM on January 14, 2011 [3 favorites]


I understand the hyperbole of the post, but answer me this. Why, if the Constitution is something to be revered and treasured and respected, have most of the accepted exclusions to requiring a warrant come about in the last 30 years?

I, personally, feel like this is just another example of the table-tilting that's been in play since the Reagan Revolution. And, trust me, I wouldn't believe that if I hadn't witnessed the last forty years' goings-on with my own eyes.
posted by Benny Andajetz at 2:39 PM on January 14, 2011 [2 favorites]


He told Darnell to exit the vehicle, and Darnell repeatedly asked him why he stopped him.

This seems like a good opportunity to point out that the organization Flex Your Rights has a new video out and it does a good job talking about auto stops & searches and practical ways to assert your rights... and avoid being tasered while doing so.
posted by phearlez at 2:41 PM on January 14, 2011 [1 favorite]


I have never partaken of illegal drugs myself, and I don't even get invited to that sort of party, so I could be talking through my hat here but:
...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?

That is, if you suspected the residence contained contraband, and you suspected the occupants had just flushed it, wouldn't that pretty much be exactly the opposite of probable cause?

Isn't this incredibly obvious to any halfway intelligent person?

In other words: What is Roberts smoking?
posted by Western Infidels at 2:46 PM on January 14, 2011 [1 favorite]


"Criminals are a superstitious, cowardly lot," Wayne remarked, "so my disguise must be able to strike terror into their hearts. I must be a creature of the night, black, terrible..."

Hi. I just want to break in here for a sec and mention that there are a lot of people in the world who a little like Batman, and a few people in the world who are a lot like Batman, but there is almost no one in the world who is less like Batman than Antonin Scalia.
posted by The Bellman at 2:50 PM on January 14, 2011 [5 favorites]


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?

No, because they might have more than can be flushed at one time.
posted by Jahaza at 2:52 PM on January 14, 2011


Just out of curiosity, is there marijuana-scented incense?

Yes, there is. Kind of defeats the purpose of incense, if you ask me, but it's pretty easy to find at a head shop.
posted by vorfeed at 3:04 PM on January 14, 2011



Police drug raid finds guinea pig heater

Proper ventilation required.
posted by clavdivs at 3:04 PM on January 14, 2011


We're coming for your MP3s and your diplomatic cables, quick break the door down before they get deleted.
posted by RobotVoodooPower at 3:07 PM on January 14, 2011 [3 favorites]


For once I'd like to have the law-and-order types apply their zero-tolerance policies to those charged with enforcing the law-and-order.
posted by Capt. Renault at 3:22 PM on January 14, 2011 [4 favorites]


I feel like there's a lot of misunderstanding going on in this thread. To hopefully clear things up a little:

1. Oral argument notoriously makes almost no difference at the SCOTUS level, which is part of why the allotted time is so limited. Arguments are made in briefs. Oral argument, if anything, is to allow the judges to eke out points that the attorneys either failed to make or failed to make clear in their briefs, but even in that respect it doesn't mean or do much.

2. Those looking for a split court on this are REALLY reaching. I haven't listened to the audio yet, but I've read the transcript, and nobody but Roberts seems to be settled on this seizure being kosher.

3. Scalia sucks, but has been good on 4th Amendment issues, and by all accounts seems by the questions to be doing fairly well on this issue as well.

4. Lemme back up, because there seems to be a lot of confusion as to what the issue is here in the first place. It is NOT whether a cop can knock on one's door after smelling marijuana, and then force entry if they hear what sounds like the destruction of evidence. Both sides agree that cops may do so and that doing so is both lawful and reasonable. It breaks down like this:
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.

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.
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.

This question led to a lot of both attorneys "arguing the facts on appeal," which is indeed sloppy, but perhaps necessary in this case. Farley was trying to establish that the knock was standard, lawful behavior. Drake was trying to establish that it was unlawful and unreasonable (in both cases under the 4th Amendment.)

Scalia's bit about "criminals are dumb" was taken WAY out of context here. He was saying that the 4th amendment protects people in their homes from warrantless searches, and that one of the great boons to cops is that criminals will often let them in anyway, despite the protections. It's an ambiguous statement at best, but I read it as a Rebuttal to Farley & Co. that the 4th Amendment protections didn't necessarily need to be lightened.

Gator's right that both sides argued poorly. Like, to the extent where they were almost arguing the other side's case for one another. Repeatedly, Justices from both ends of the spectrum asked Drake to tell them what test they should impose. This is a HUGE thing for the court to ask, and so it makes sense that a young attorney would get a bit flustered, but the fact is that they apparently had a test lined out in their brief, and she couldn't properly explain it or convince them of it. Then, they turned back to Farley and needled him enough to get it out of him instead.
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 Amendment
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.
I'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.
posted by Navelgazer at 3:28 PM on January 14, 2011 [18 favorites]


I'm a fan of keeping nonmedical pot illegal. But I am an even bigger fan of the rule of law, where those rules don't move around just because we feel like it.

This ruling (or contemplated ruling, or whatever) is insane.

Why is the 4th Amendment less important than the 1st? (Or the 2nd?) Exceptions matter and make sense. "Fire!" in a crowded public building is not protected speech. But "I think I smell something so I get to kick in the door and bust me some potheads?" Really? Are search warrants _that_ difficult or time consuming to get?

I think the "umpire calling balls and strikes" metaphor is actually perfect for the US Supreme Court. Different umpires have different strike zones. Conservatives call strikes a bit on the inside - liberals are more likely to call a strike that just miss the outside corner. We'll probably see few 9-0 rulings any time soon. But this suggestion makes as much sense as calling a beanball a strike.
posted by andreaazure at 3:30 PM on January 14, 2011


there is almost no one in the world who is less like Batman than Antonin Scalia

Ruben Bolling is trying his best
posted by anthill at 3:31 PM on January 14, 2011


This ruling (or contemplated ruling, or whatever) is insane.

...Sigh.
posted by Gator at 3:35 PM on January 14, 2011


...Sigh.
posted by Gator at 4:35 PM on January 14 [+] [!]


#whathipstersdo called to say hello.
posted by andreaazure at 3:38 PM on January 14, 2011


Between the War on Drugs and the War on Terror, the Fourth Amendment is, for all intents and purposes, dead. At this point, all the government is doing is putting some sunglasses on its corpse and doing an elaborate re-enactment of Weekend at Bernie's.
posted by entropicamericana at 3:46 PM on January 14, 2011 [4 favorites]


I haven't listened to the audio yet, but I've read the transcript

You're in for a treat. The transcripts don't record every instance of laughter, nor do they record each and every wincingly-glacial pause while counsel is desperately trying to come up with a response, any response at all, to some of the Justices' questions. The frantic page-turning at the very beginning of Farley's argument where he's trying to figure out what page he's supposed to be on was particularly agonizing.
posted by Gator at 3:49 PM on January 14, 2011 [2 favorites]


This ruling (or contemplated ruling, or whatever) is insane.

Again, the "contemplated ruling" is on the constitutionality of cops giving the impression of having a warrant when they do not, and then acting upon reactions of suspects in order to claim "exigent circumstances." It is not clear which way it will go, but the Justice's questions, from both sides, seemed to suggest that this was unconstitutional, and in the case of the "criminals are stupid" line, unnecessary to boot.
posted by Navelgazer at 3:50 PM on January 14, 2011


The frantic page-turning at the very beginning of Farley's argument where he's trying to figure out what page he's supposed to be on was particularly agonizing.

Heh. I was wondering about that, but you can practically hear it in the transcript anyway.
posted by Navelgazer at 3:52 PM on January 14, 2011


The cognitive dissonance required to synthesize "small government! personal responsibility!" and "fuck you, 4th amendment" into a coherent belief system is enough to make my head explode.

See, the government needs to stay out of my business, because me and mine are responsible people and we don't need to be told what to do by some nanny state getting into our affairs. But those other people, the ones who would use illegal drugs, THEY are a danger to our free society, and I for one think we should respect the hard-working law enforcement officials as they just try to keep us safe from people smoking plants.
posted by girih knot at 3:58 PM on January 14, 2011 [2 favorites]


I'm a fan of keeping nonmedical pot illegal.

Why? I am genuinely curious about the rationalization behind this.
posted by girih knot at 4:00 PM on January 14, 2011


Between the War on Drugs and the War on Terror, the Fourth Amendment is, for all intents and purposes, dead. At this point, all the government is doing is putting some sunglasses on its corpse and doing an elaborate re-enactment of Weekend at Bernie's.

Well, for a real "fuck you" to legal rights a citizen might expect, nothing beats the laws and practice of asset forfeiture in the War On Drugs. That's when the corpse was actually buried, and they made a plastic doll and put on sunglasses on the doll and cried out "see, good as new".
posted by VikingSword at 4:04 PM on January 14, 2011 [1 favorite]


"Fire!" in a crowded public building is not protected speech.

Cite, please.
posted by Sys Rq at 4:05 PM on January 14, 2011


The frustration for me, and for a lot of people I would think, is that this whole scenario is an ongoing death-by-a thousand-cuts.

The 4th Amendment came from English Law as a very solid bulwark against very real abuse of power.

But it keeps getting argued down: You absolutely need judicial approval and a warrant. No, you really just need "probable cause". You can't look in the car trunk. No, okay, you can look in the car trunk. People are secure in their person. No, you're allowed to look, literally, through peoples' clothes. You can't give up your rights. No, if you're too dumb to know your rights, that's not the cops' fault. Etc, etc.

Every exception makes it easier to justify the next exception. The core tenet that gets forgotten, IMO, is that the Constitution's job is to protect citizens' God-given freedoms - not to try and coexist with the ability of law enforcement to do their jobs. In other words, the Constitution should more often confound their abilities than cooperate with them.
posted by Benny Andajetz at 4:16 PM on January 14, 2011 [4 favorites]


For those following the actual case at hand here instead of the imaginary one they want to argue about, an interesting parallel is Rhode Island v. Innis. It's a 5th Amendment case, not 4th, so the relevance might not be directly apparent, but essentially what happened was that the cops arrested a suspect in a murder case near a playground, but found no weapon on him. They knew they couldn't directly question him in the squad car, so instead they had a loud and very clear conversation abetween themselves about worrying that if the gun was left on the playground, a kid might find it and hurt or kill himself accidentally, leading to the suspect telling them where the weapon was so that wouldn't happen.

The court found the evidence to be inadmissible, as this was the "functional equivalent" of direct questioning. In much the same way here, the court is determining whether the way the police knocked on the door and announced their presence was the functional equivalent to pretending to have a warrant, thus eliciting a foreseeable response in the suspect which would be inadmissible if that were the case.

THAT is what is at issue here.
posted by Navelgazer at 4:16 PM on January 14, 2011 [1 favorite]


Cite, please
"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."

Oliver Wendell Holmes, Schenck v. United States
posted by Navelgazer at 4:19 PM on January 14, 2011 [1 favorite]


Sys Rq, falsely shouting fire in a public theater is a classic example from Oliver Wendell Holmes' Court:
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
posted by chimaera at 4:22 PM on January 14, 2011 [1 favorite]


Jinx!
posted by Navelgazer at 4:28 PM on January 14, 2011 [1 favorite]


heh. i flagged mine as a double.
posted by chimaera at 4:35 PM on January 14, 2011 [1 favorite]


It is not clear which way it will go, but the Justice's questions, from both sides, seemed to suggest that this was unconstitutional, and in the case of the "criminals are stupid" line, unnecessary to boot.

So when Scalia said that it wasn't a point in favor of allowing the police to do what they did here, but the opposite. The cops' side argues there was a need for them to bust in in this particular case, but Scalia's using the fact of criminal stupidity to make a point that they might be allowed in anyway?
posted by Danila at 4:41 PM on January 14, 2011


...there is almost no one in the world who is less like Batman than Antonin Scalia.

Seems to me they both have very little regard for due process and warrants.
posted by John Kenneth Fisher at 4:51 PM on January 14, 2011 [1 favorite]


Danila, I'm listening to the audio now to get more nuance, but yeah, that's how I read it.

Seems to me they both have very little regard for due process and warrants.

Kyllo v. U.S.
posted by Navelgazer at 4:54 PM on January 14, 2011 [2 favorites]


Okay, Danila, I've just heard that part on audio, and it's way more ambiguous than I thought at first. The context seems to be that of asking Ms. Drake to distinguish this case from the (found to be constitutional) practice of police stopping buses coming into Washington and asking to search luggage, and finding drugs because the mules were willing to let them search their luggage even though they weren't required to do so.

The rest of the questioning helps to (pretty conclusively) distinguish this behavior.
posted by Navelgazer at 5:24 PM on January 14, 2011


Orin Kerr has some interesting thoughts on the oral arguments.
posted by ryoshu at 5:34 PM on January 14, 2011 [1 favorite]


counsel for King asked for my advice on this case, and I provided some advice on a pro bono basis.

Yeesh. ♪♫♪ Awk-waaaaaard...♫♪♫
posted by Gator at 6:06 PM on January 14, 2011


...there is almost no one in the world who is less like Batman than Antonin Scalia.
Agreed. I think more of a Penguin type.
posted by DaddyNewt at 6:07 PM on January 14, 2011


Southpark is so ahead of its time:

"Its coming right for us" is just like "I smell evidence being destroyed, watch your step as you trample the 4th Amendment".

Seriously justices, you have to find better stuff to do than make it easier to catch people on marijuana. You're making a mockery of my country's Supreme Court.
posted by hal_c_on at 6:33 PM on January 14, 2011


Navelgazer, chimaera: Did you read that Wikipedia article you cut and pasted from?

TL;DR: 1. Schenck wasn't falsely shouting fire in a crowded theatre; he was distributing leaflets informing citizens of their rights. 2. The ruling has been irrelevant for eighty years, and extremely irrelevant for forty.
posted by Sys Rq at 6:33 PM on January 14, 2011


I'm not actually firmly opposed to unreasonable or warrantless search, the problem is not the search, its having no recourse when you are a victim of incompetent, unreasonable, or malicious search (and which also means the searchers have little incentive to be competent, reasonable, or benevolent)

So expand police powers of search all you like, provided you ALSO expand the recourse available to the victim. I've seen a lot of expansion of police power over the last few years, but I haven't seen much expansion of recourse.

Here's a test scenario: Officer Bad Apple dislikes Joe, and decides to hurt Joe by conducting a search in which his secret motive is to damage Joe's stuff, and he does so under protection of law by falsely claiming he smelled pot or whatever.
It cannot be proved that Officer Bad Apple is being dishonest.

How can this system make Joe whole again?
How can this system prevent this scenario from happening?

Without solid and powerful answers to those questions, why should having this system be considered better than not having it?
posted by -harlequin- at 6:43 PM on January 14, 2011


Sys Rq, I don't love the decision, but you asked for a cite, and that's where it comes from. I don't know Brandenburg v. Ohio enough to know whether this example is now protected, but one would guess that laws could be made forbidding the practice, and upheld, and that at the very least tortious action could be brought against anyone doing so, if the speech caused a panic which in turn caused injury, so there you go.
posted by Navelgazer at 6:43 PM on January 14, 2011


Aaah, the conservatives, always in the corner of the jackbooted thugs

Oh, really? Scalia's conservative views often lead him to argue for limits on government power rather than expansions of it. The law review article below is technical but interesting, and the two Wikipedia links will all you to jump to the text of the opinion if the summary isn't sufficiently detailed.

Scalia waged a long, long campaign against the use of mandatory sentencing guidelines
Scalia disputes that the Bush administration could suspend Habeas Corpus
Scalia explains why using thermal imagers to detect a pot farm violates...the 4th amendment

I am not proposing a Justice Scalia fan club, but I don't like these threads that talk about Supreme Court decisions like they were a football game. It's just ignorant to trash the guy for asking hypothetical questions at oral argument when he has a consistent record of supporting people's 4th amendment rights - most recently in Arizona v. Gant (pdf, concurring opinion starts on p19).
posted by anigbrowl at 6:46 PM on January 14, 2011 [7 favorites]


Agreed. I'm no fan of Scalia and I think his view of the constitution is pretty much wacky, but the man is consistent with them, even when they lead him to views you suspect he personally disagrees with. I find it hard not to respect him, even when he infuriates me. Which he usually does.
posted by John Kenneth Fisher at 7:29 PM on January 14, 2011


oh. apparently I'm repeating myself.
posted by John Kenneth Fisher at 7:34 PM on January 14, 2011


I don't think it's possible to be surprised by Scalia anymore, and I think he knows that and is trying to top himself. After opinions like "Police are under no obligation to enforce protective orders", this seems almost tame.
posted by kafziel at 8:08 PM on January 14, 2011


this seems almost tame.

Especially since the questions asked at oral argument give us really no indication of how they'll be ruling.
posted by Navelgazer at 8:11 PM on January 14, 2011


I'll try to read the comments tomorrow, so I'm sorry if I'm repeating something: it's late.

But HIGH SCHOOL STUDENTS (sorry, I'll keep my voice down) need to be educated as to their rights. When a cop says: "Can I search your car?" most people say yes, in fear of the consequences of saying no. You can say no!!! My nephew said yes even though he had several ounces of ganja in a backpack in his car. Damn.
posted by kozad at 8:36 PM on January 14, 2011 [2 favorites]


"Fire!" in a crowded public building is not protected speech.

Cite, please.


Ah, you are referring to Vindaloo v. My Dignity
posted by zippy at 8:54 PM on January 14, 2011


A warrant for me and not for thee, it seems.
posted by effugas at 9:37 PM on January 14, 2011


I only skimmed the comments, but I think two things. One, Navelgazer is very correct.

Two, everyone wants the police to be able to enter a house without a warrant under exigent circumstances. This is what allows them to break your door down to save you when you're being strangled to death or you fell and broke your neck or god knows what else.

Further, the fact that this case involves marijuana is something of a red herring, because its very illegality is so controversial and tends to inflame emotions. Let's assume it wasn't marijuana, but rather, chemical weapons that were being destroyed, and the police were trained and knowledgeable about the smell of chemical weapons and that's what prompted this whole entry. I think then you can see the difficulty of ruling that the cops shouldn't be able to enter the house in those circumstances.

Whether or not you want marijuana to be illegal is a separate issue. (I don't, for a whole host of reasons.) But the legal issue before the SCOTUS proceeds from the presumption that marijuana is contraband, because that's the world we live in.
posted by dixiecupdrinking at 10:25 PM on January 14, 2011 [2 favorites]


Two, everyone wants the police to be able to enter a house without a warrant under exigent circumstances. This is what allows them to break your door down to save you when you're being strangled to death or you fell and broke your neck or god knows what else.

There is a significant difference between being able to enter my house without a warrant to provide emergency service, and being able to enter my house without a warrant and present what they see as evidence in a criminal proceeding against me. This is that whole expectation of privacy thing - even in the "being strangled to death" scenario, my expectation of privacy in my house wouldn't extend to protect this person strangling me.

Further, the fact that this case involves marijuana is something of a red herring, because its very illegality is so controversial and tends to inflame emotions. Let's assume it wasn't marijuana, but rather, chemical weapons that were being destroyed, and the police were trained and knowledgeable about the smell of chemical weapons and that's what prompted this whole entry. I think then you can see the difficulty of ruling that the cops shouldn't be able to enter the house in those circumstances.

I find it perfectly easy to say that the cops should, in that circumstance, take their expert noses back to a judge and get a warrant on the basis of that evidence. The broadening pattern of allowed warrantless searches, on the mere basis that the cops believe they would have had enough evidence to get a warrant if they'd done so, is exactly the problem here. Posit a ticking time bomb all you like, it should not be easier to ask forgiveness than permission.
posted by kafziel at 10:42 PM on January 14, 2011


If the officer removed marijuana from Darnell's pocket and then Darnell knocked it out of the officer's hands and into a sewer grate, then that would be Destruction of Evidence. It would be evidence because the officer controlled it.

That'll teach the officer to get both feet inbounds next time.
posted by one more dead town's last parade at 10:49 PM on January 14, 2011


Two, everyone wants the police to be able to enter a house without a warrant under exigent circumstances. This is what allows them to break your door down to save you when you're being strangled to death or you fell and broke your neck or god knows what else.

There are no provisions in any law which prevent the police from entering your house to save you if you are being physically threatened or in order to save your life. This is a red herring.

These cops weren't entering anyone's dwelling in order to save someone's life. They were doing so in order to supposedly investigate use of marijuana.

Now, what if the cops were coming in through my door thinking I was being strangled but happened instead to find a bunch of marijuana? Or what if I really WAS being strangled, and they came in and saved my life, but also found an ounce of weed on my table? Well, that's where the 4th Amendment comes in. Because they are only allowed to search a premises in order to determine criminal wrongdoing with a warrant, so any reasonable court with proper application of the 4th Amendment would throw out any evidence which was discovered during any intrusion into a private residence by police which was not warranted by reasonable suspicion.

In other words, the cops are free to come in to save my life, but not then free to use finding pot during that time as evidence against me in order to prosecute me for a crime. That constitutes unlawful search and seizure, because their reason for being in the house (without express permission from anyone in the household) was to save the life of someone living there, and not in order to investigate a crime.

Your chemical weapons concept is the real red herring here. It is made quite clear in the Constitution that a person's dwelling is to remain free from intrusion by the law without express consent or court order. There are no exceptions made in any of the writings there which state "except in case of suspicion of severe gross harm to the populace" or anything like that, which your chemical weapons concept seems to assume.

If a policeman were to suspect chemical weapons were being manufactured or deployed at a private residence, the correct response is to try to find a judge who will grant a search warrant on very short notice and only with the word of that police officer as the foundation for that search.

If a policeman were to smell natural gas coming from a residence, he would be justified in breaking in to try to determine the source of that possible damaging leak, but then should not be justified in subsequently prosecuting the residents there for a grow closet he happened to find while searching for the source of the gas leak.

One has to do with immediate danger, the other has to do with probable cause and search warrants.

These are two very important concepts which must be kept separate in the minds of the populace and in the legal system. Because the Constitution is very clear -- a private dwelling cannot be intruded upon by government agents (be they local police or federal troops) without due cause.
posted by hippybear at 10:49 PM on January 14, 2011 [5 favorites]


my expectation of privacy in my house wouldn't extend to protect this person strangling me
Right, 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 warrant
Wrong. 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.

If a policeman were to suspect chemical weapons were being manufactured or deployed at a private residence, the correct response is to try to find a judge who will grant a search warrant on very short notice and only with the word of that police officer as the foundation for that search.

Assuming bona fide probable cause of a truly serious crime about to be committed - don't be so silly. The same security interest that extends to you as an individual if you are being attacked in your own home, and the police show up, extends to the public at large if there is sufficient evidence of imminent danger. You say it yourself in your last line:
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.

Although I am skeptical that the court will actually give law enforcement a free hand in this case, the smell of burning marijuana is (in the absence of any medical marijuana statute, as is the case here) prima facie evidence of a crime taking place. Are there other things which could result in a false positive, such as marijuana-flavored incense or skunks? Yes. A false positive is possible...but not very probable. The probable cause of the marijuana smell is...burning marijuana. And where probable cause exists, there are reasonable grounds for a search to take place.

I think the prohibition of marijuana is a tremendous waste of time and money, that it should be regulated like alcohol, and all custodial sentences for non-violent crimes involving less than a bushel of the stuff terminated and expunged. But unfortunately that matter is in the hands of legislators and not of courts, In the meantime, it remains illegal in many jurisdictions and courts are charged with administering the law as it is. Although I don't like this law at all, I think it will probably stand because it is easy to reason from the available evidence to a valid conclusion about the probability that a crime is taking place.

People complain that this justification could be used to support any intrusion by police - they could just say 'I smelled marijuana and found probable cause to smash the door down.' Well, they could try it, but unless a majority of the people in that neighborhood smoke marijuana then statistically their intrusions will draw a blank a majority of the time. Sure, they could plant marijuana in a suspect's home, and the defendant's attorney could provide a toxicology test showing that the person charged doesn't consume marijuana. There's a possibility of abuse/error, but it's hardly any worse than that resulting from flawed issue of warrants, which have sometimes resulted in police raiding the wrong home and killing the killing innocent occupants.
posted by anigbrowl at 11:53 PM on January 14, 2011 [1 favorite]


First & last lines of 4th and 5th paragraphs contradict each other due to an editing error. I think the SC will likely uphold the lower court decision.
posted by anigbrowl at 11:55 PM on January 14, 2011


hippybear: Now, what if the cops were coming in through my door thinking I was being strangled but happened instead to find a bunch of marijuana? Or what if I really WAS being strangled, and they came in and saved my life, but also found an ounce of weed on my table? Well, that's where the 4th Amendment comes in. Because they are only allowed to search a premises in order to determine criminal wrongdoing with a warrant, so any reasonable court with proper application of the 4th Amendment would throw out any evidence which was discovered during any intrusion into a private residence by police which was not warranted by reasonable suspicion.

The pot on the table might be admissible under the plain view exception to the warrant requirement, unless there's some exception to the exception saying it doesn't apply to emergency responders. The cops would be lawfully inside your house (probable cause a crime -- murder, assault/battery, etc.-- was taking place inside, emergency aid/community caretaking warrant exception, exigent circumstances warrant exception... take your pick), the cop would have lawful right of access to the object (i.e., he wouldn't have to move or open anything to get to it, etc.), and the incriminating nature of the pot would be immediately apparent. With your gas leak and grow operation example, the admissibility of the evidence would likely depend on the court's ruling of whether the cop looking into wherever the grow operation was found (let's say a side room or closet) was within the scope of the circumstances leading to the cops lawful warrantless entry/search of the home -- i.e., the gas leak.
posted by onebadparadigm at 1:12 AM on January 15, 2011 [1 favorite]


This is what allows them to break your door down to save you when you're being strangled to death

Yeah, about that...

Bruce GRIESHABER, as Administrator of the Estate of Jenna Grieshaber Honis, Deceased, Respondent, v. CITY OF ALBANY, Appellant.

The theory of the complaint is that defendant was negligent in its response to an emergency 911 telephone call that decedent made at 6:47 P.M. on that day.   Although police officers arrived at decedent's apartment building at 6:52 P.M., they awaited the arrival of an animal control officer to subdue decedent's dog.   As a result, they did not actually enter decedent's apartment until approximately 7:45 P.M., at which time they found her lying on the floor with a bedpost of a heavy wooden bed resting on her neck.   Decedent was ultimately transported to a nearby hospital emergency room, where she was pronounced dead at 8:31 P.M.

...

Providing the essential causative link between the “special duty” assumed by the municipality and the alleged injury, the “justifiable reliance” requirement goes to the very heart of the special relationship exception, which is predicated in large measure on “the unfairness that the courts have perceived in precluding recovery when a municipality's voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [her] either to relax [her] own vigilance or to forego other available avenues of protection” (Cuffy v. City of New York, supra, at 261, 513 N.Y.S.2d 372, 505 N.E.2d 937

...

Although we are troubled by the conduct of the police in allowing a prolonged delay to occur before entering decedent's apartment, the Court of Appeals has made clear that a plaintiff cannot establish justifiable reliance by demonstrating a victim's reasonable expectation that help would be forthcoming, as plaintiff's burden is to come forward with competent evidence to support a finding that decedent acted on that reliance to her detriment
...

911's a Joke.
posted by mikelieman at 7:34 AM on January 15, 2011


Well, now that my concept of how this works has been corrected, I feel even more depressed than before.
posted by hippybear at 7:45 AM on January 15, 2011


Hippybear:

Just to clarify a couple of points – it's not actually the manufacture of chemical weapons that would be analogous here – if the cops had probable cause that people were making anthrax or whatever in an apartment, then they cannot search it on that basis. This is classic "go get a search warrant" territory.

What is analogous is if the cops believe the chemical weapons are being destroyed. What gives rise to exigent circumstances is destruction of evidence, i.e., there is probable cause (I think that's the standard) that 1) there is evidence of a crime and 2) the evidence will be destroyed in the time it takes to get a search warrant. This rule generally makes sense, though depending on your opinion of the ethics of the average police officer you might rightly say it's ripe for abuse.

Now, one might say the obvious distinction here is, who cares if some weed gets destroyed and the cops can't make an arrest for marijuana possession? Whereas there's a clear public benefit to making an arrest of the weapons hoarders. But I submit that this is not a functional distinction; that both are illegal, and that the police are supposed to enforce the laws, and that it's unreasonable to expect the police to selectively enforce some laws and not others, in accordance with our personal beliefs about their relative importance.

As anigbrowl pointed out, if marijuana should be legalized, this is an issue for the legislature, not the courts, and certainly not cops on the street. Presumably our laws are on the books because they reflect the majority will of the people and some minimum standard of acceptable societal conduct and so on.
posted by dixiecupdrinking at 8:35 AM on January 15, 2011 [2 favorites]


Presumably our laws are on the books because they reflect the majority will of the people and some minimum standard of acceptable societal conduct and so on.

While I agree with just about everything you said, and appreciate the continuing elucidation on these matters, I have to say, that's one hell of a big presumption. :)
posted by hippybear at 8:43 AM on January 15, 2011


Hah -- right, exactly. That's how it's supposed to work. But at least it kinda goes to show you where the anger should be directed.
posted by dixiecupdrinking at 8:57 AM on January 15, 2011


"majority will of the people"

Guaranteeing the rights of individuals in the supreme law of the law was expressly designed to counter the tyranny of the majority.
posted by Xoebe at 10:22 AM on January 15, 2011 [2 favorites]


law of the land. Damn.
posted by Xoebe at 10:22 AM on January 15, 2011


hippybear: Well, now that my concept of how this works has been corrected, I feel even more depressed than before.

Well, if it helps, Article I, section 7 of the WA state constitution provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." WA courts interpret Art. I, sec. 7 as providing greater protection than the Fourth Amendment. What that "greater protection" requires has to be hashed out in each case, of course, but generally many things that are permissible under the Fourth Amendment aren't permissible under Art. I, sec. 7 (unfortunately, "plain view" is recognized as valid, but it may be because no one has done the requisite, multi-factor Gunwall analysis showing that the state constitution forbids it).

In the past two years alone the state Supreme Court has expressly held that two Fourth Amendment warrant exceptions ("good faith," which is as noxious as it sounds, in State v. Afana,and "inevitable discovery" in State v. Winterstein) are incompatible with Art. I sec. 7 and can't justify a warrantless search in Washington. So, y'know, yay Washington!
posted by onebadparadigm at 11:03 AM on January 15, 2011


In the unlikely event that this opinion gets upheld it would be amazingly easy to protest. Every time anyone hears the police at their doors, for good or bad reasons, every flush toilets. Cities will go bankrupt replacing doors mistakenly busted down. I suppose the irony here is that it's our own money replacing the doors (as taxes).
posted by Nauip at 11:15 AM on January 15, 2011


unless a majority of the people in that neighborhood smoke marijuana then statistically their intrusions will draw a blank a majority of the time

Isn't that like saying its no big deal if TSA agents can body cavity search people at any time for any reason, since most people aren't hiding bombs in their anuses and therefore the majority of the searches will be 'blanks'? Having your house broken into by police is by itself a significant harm, even if you aren't in the end charged with anything.
posted by Pyry at 3:40 PM on January 15, 2011 [1 favorite]


Of course it's a big deal; but if defendants keep being acquitted or having convictions reversed because there's no evidence to back up the allegation of probable cause the DA/sheriff/mayor is going to start losing elections. This is far from perfect, it would be better if marijuana were not illegal to begin with. But at present, it is. We should not be blind to the risk, but we shouldn't assume it's an inevitability either.
posted by anigbrowl at 4:36 PM on January 15, 2011


Why? I am genuinely curious about the rationalization behind this.
posted by girih knot at 5:00 PM on January 14 [+] [!]


My rationale has been posted at length - click my name to search. I don't want to justify my position again - it doesn't work here. I said what I said in this thread's post mostly as a disclaimer. I didn't want a "but you're anti-pot so whatever" comment to come up to muddle the issue.
posted by andreaazure at 5:27 PM on January 15, 2011


Of course it's a big deal; but if defendants keep being acquitted or having convictions reversed because there's no evidence to back up the allegation of probable cause the DA/sheriff/mayor is going to start losing elections.

On what data do you make this claim?
posted by effugas at 6:56 PM on January 15, 2011


Another Isolated Incident
posted by homunculus at 7:35 PM on January 15, 2011


> Guaranteeing the rights of individuals in the supreme law of the law was expressly designed to counter the tyranny of the majority.

I'm sorry to keep returning to this thread, but what's your point? That making marijuana illegal is "the tyranny of the majority?" To the extent there is any tyranny even potentially happening here, it would be the SCOTUS unilaterally carving out a new, limited caveat w/r/t 4th Amendment rights, and allowing police to enter your home with marginally lesser cause. Which is a lot of things, but hardly the tyranny of the majority.
posted by dixiecupdrinking at 9:06 PM on January 15, 2011


My rationale has been posted at length - click my name to search. I don't want to justify my position again - it doesn't work here.

I asked because I've yet to see an argument for the illegalization of pot that really seems to hold any water, unless someone is also arguing that alcohol, nicotine, psychoactive prescription drugs, caffeine, nutmeg and solvents are all also made illegal. To me, it always seemed like a stance to keep pot illegal comes from a fear of counter-culture or a misrepresentation of what pot is. So I asked you for your rationale because I'd like to better my understanding of why anyone would want to keep it illegal. I didn't really find anything in your comments history that explained this to me.

I said what I said in this thread's post mostly as a disclaimer. I didn't want a "but you're anti-pot so whatever" comment to come up to muddle the issue.

I respect that.
posted by girih knot at 11:25 PM on January 15, 2011


I asked because I've yet to see an argument for the illegalization of pot that really seems to hold any water, unless someone is also arguing that alcohol, nicotine, psychoactive prescription drugs, caffeine, nutmeg and solvents are all also made illegal. To me, it always seemed like a stance to keep pot illegal comes from a fear of counter-culture or a misrepresentation of what pot is. So I asked you for your rationale because I'd like to better my understanding of why anyone would want to keep it illegal. I didn't really find anything in your comments history that explained this to me.

I found it. The argument is basically that pot is popular among the kids because it's the least illegal drug, and if you legalize then kids will move to the next least illegal drug, which will be heroin or cocaine or something. Also that it's a gateway drug for her aunt and uncle that died of drugs, although they neither started with it nor killed themselves with it.

There's a reason that the justification doesn't hold water, and it's not unique to "here". When your rationale for the criminality of marijuana is that heroin is really bad for you, I think you're stretching the definition of rationale.
posted by kafziel at 11:52 PM on January 15, 2011 [1 favorite]


After listening to the oral arguments it's interesting to think about the "bang" on the door versus knock on the door circumstance. If the police are "banging" on my door and yelling "Police! Police! Police!", I would have a much different reaction than the police ringing the door bell. How would an occupant know the difference between a "Knock and Announce" (search warrant) with police "banging" and yelling versus a "Knock and Talk" (no search warrant) where police tend to calmly knock and not yell?

Is there a way to create a bright line?
posted by ryoshu at 3:21 PM on January 16, 2011


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