Whittling Away at the Fourth Amendment

Brooke’s Fashion 1

In another decision that narrows protections of the Fourth Amendment, the U.S. Supreme Court has once again opened the door to police entries into citizens’ homes.  The decision is a narrow one, but all it takes is a few dozen of these “narrow” decisions and we might as well remove the words from the Constitution.

From Adam Liptak in The NY Times:

The police do not need a warrant to enter a home if they smell burning marijuana, knock loudly, announce themselves and hear what they think is the sound of evidence being destroyed, the Supreme Court ruled on Monday in an 8-to-1 decision.

The issue as framed by the majority was a narrow one. It assumed there was good reason to think evidence was being destroyed, and asked only whether the conduct of the police had impermissibly caused the destruction.

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.

So, what’s the harm in this?  After all, it only applies to people engaged in activity where destruction of evidence is important.

Well, since there’s ample evidence that police lie, here’s the sequence:

  • Police come to a door.
  • One says to the other, “I smell marijuana, don’t you?”
  • The other says, “Yeah.”
  • The first knocks hard and says, “Police.  We want to speak with you.”
  • Second policeman says, “That’s a toilet flushing.”
  • First policeman says, “Yeah.”
  • They force the door.

Justice Ginsburg, the sole dissenter, puts the issues succinctly:

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

According to the majority opinion, the defendant’s choice to destroy evidence sealed his fate.  He could have refused to answer the door, for example.  Or he could have answered the door and refused the police entry until they obtained a warrant.  None of which affect the possibilities for police misconduct.

The opinion does contain the slightest sliver of language continuing to honor the Fourth Amendment:

But “there is a strong argument,” Justice Alito added, that evidence would have to be suppressed where the police did more than knock and announce themselves. In general, he wrote, “the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted.”

Justice Ginsberg in dissent, again:

“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?” she asked.

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New Model Department

Yesterday was new (to me) model, Heather.  What a pleasure!  You’ll see here shortly.

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Natural light, my idea, her skirt and hat.

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