Goodbye, Fourth Amendment

If this doesn’t terrify you, it should:

Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence…

The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

The lower count (in this case, the Kentucky Supreme Court – not, I’m going to go out on a limb here and guess, a bastion of firebreathing liberal jurisprudence) actually had the sort of approach you would expect: measured, thoughtful and above all mindful to protect citizens’ rights above all…which is literally their stated duty in the Constitution:

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

In other words, the Kentucky Supremes held that the police can’t either A) create the circumstances which then require a critical decision be made on the spur of the moment without all facts in order to simply avoid the requirement of a search warrant, or B) even if they didn’t create in bad faith the circumstances which required such a snap decision, the cops can’t use their own actions to justify an on-the-fly disregarding of the requirements of a warrant if a reasonable person could have predicted that those actions would cause evidence to be destroyed, etc.

In writing this, I’m trying to imagine how some of my wingnut friends and relatives might read the Kentucky supreme’s decision and how they might feel about it. I think the right-wing argument to this might be along the (tired) lines of “if you’re not doing anything illegal, you don’t have anything to worry about.” That’s an oft-heard rationale for justifying expanded police powers, but I think it’s quite weak, especially in this case. When people read my interpretation, they’ll notice that I’m talking about people who are, in fact, actually guilty of a crime – cops cannot use “exigent circumstances” to bypass the requirements of a warrant. But, the wingnut thinking goes, these people are actually criminals. Shouldn’t we err on the side of violating their rights but keeping them off the streets, rather than protecting their rights and allowing them to destroy evidence, get away and continue to menace our community?

Well, maybe…if that were the only issue (and only group of people) at stake. What that point of view ignores is the entire overriding doctrine of presumption of innocence. The argument becomes engaged when the cops actually DO find evidence of a crime in progress in such a case because in cases where they’re mistaken and DON’T find evidence of a crime, that’s as far as it goes. Except for the apartment dweller, who has to now fix a broken-in door on his own dime, and live perhaps in fear and nightmares – because he knows it’s true – that the police can pretty much kick in his door whenever they wish on nothing more than their own statement after the fact that they thought they heard something inside that “sounded suspicious.”

We make the cops’ jobs hard not for the times they’re pursuing legitimate suspects who’re actually guilty of crimes, but for the times they’re NOT. I still don’t know what’s hard about that concept to grasp. Because the police get into so many different situations, each with its own unique set of circumstances, these rules have to be applied in a blanket manner, at least to some degree. In other words, people who actually ARE criminals have to be accorded the same rights as people who AREN’T, and the police cannot be allowed to simply choose on their own who is a criminal and who isn’t. To the extent law enforcement can do so, why even HAVE a court system?

What the SCOTUS upheld is one portion of a system based on a world view which says, essentially: “if the cops think you’re guilty, you ARE guilty until proven otherwise, and they can do what they wish to you and your property in the service of proving their suspicions. Reasonable restraints like the two-part test devised by the Kentucky supremes (and indeed, like the ones devised by the founding fathers themselves) are there to protect average, non-criminal people from an overreaching executive branch and law enforcement arm. That’s, at bottom, literally a major part of what the courts are for: to determine when law enforcement has overstepped its bounds. Such restraints, however, only come into controversial focus in the cases when the police turn out to have been right and an actual criminal was captured through the use of invasive techniques. That’s when you hear the shouts that it’s all justified, just like we heard the shouts that waterboarding is justified after Osama Bin Laden was killed. What conservatives never seem to realize – or that they seem to discount – is what happens to the overall climate when the men with guns are given explicitly the knowledge that they can ignore most of the protections designed to keep them from acting as judge, jury and executioner.

One thought on “Goodbye, Fourth Amendment

  1. Yes, I read about this. My thoughts went to German soldiers who, although looking for something other than drugs, made incursions into private homes based on fact, or at least as often, suspicion.
    I’m not saying we are getting to be like Germany, but it’s a slippery slope.

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