Posted on 01/17/2011 5:46:00 AM PST by IbJensen
When the U.S. Supreme Court agreed to hear oral arguments on a Fourth Amendment case decided by the Kentucky Supreme Court (Kentucky v. King), alarm bells went off. Under the Fourth Amendment, as readers are no doubt aware, “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.”
But what if police pick the wrong house, pound on the door loudly, announce that “This is the police!” and then, smelling pot, break down the door without a warrant and arrest the homeowner for violating local drug laws? What if the homeowner is sentenced to 11 years? What if all appeals rule in favor of the police?
Picture this: It’s 9:30 at night, and a police informant does a drug deal with a known narcotics dealer outside an apartment complex in Lexington, Kentucky. Upon completion of the deal, the informant calls in the local police waiting nearby to arrest the miscreant, but isn’t clear about which apartment the dealer entered: door number One, or door number Two? The police arrive at the scene, and pick door number One, occupied by Hollis King and some friends, no relation to the dealer behind door number Two. The police, smelling marijuana, bang on the door, and, when they hear movement inside, break down the door, find drugs, and arrest King and his friends.
Despite claiming that the police had no proper warrant, King gets 11 years. The police officers claim an “exception” to the Fourth Amendment, called an “exigent circumstance,” and the courts buy the police story. According to testimony, the officers not only smelled the burning weed, but, after announcing themselves loudly, they “heard movement” inside the apartment that they concluded was the occupant trying to destroy potentially damaging evidence. Since this was happening in the instant, there was no time to get a warrant; they had to move quickly, and so they kicked down the door, found some drugs, and arrested King.
When the case reached the Kentucky Supreme Court, however, that court ruled that there was no “exigent circumstance” and, even if there was, the police couldn’t use that as an excuse because their actions created the “circumstance" in the first place. Said the court,
While probable cause existed for police to obtain a warrant to enter the apartment occupied by King, police did not have proper exigent circumstances to justify a warrantless entry. Further, the entry was not justified by imminent destruction of evidence. The odor of marijuana alone did not provide a justification, and any exigency arising from the sounds of movement inside the apartment was created by [the] police, and therefore cannot be relied upon as a justification.
Now the Supreme Court has agreed to hear the case. Justice Elena Kagan explained her concerns: “One of the points of the Fourth Amendment is to ensure that when people search your home, they have a warrant [but] of course there are exceptions to that.” Justice Ruth Bader Ginsburg wondered aloud whether the lower courts’ positions, if allowed to stand, would allow the police to “go to the apartment building and then sniff at every door,” trying to find a reason to invade the home without a warrant. Justice Sonia Sotomayor expressed concern as as to whether the police could enter a dwelling at any time without a warrant, so long as they thought some kind of wrongdoing was taking place on the other side of the door. She wondered if the police could use the “King” excuse about hearing suspicious noises inside as sufficient probable cause to enter.
On the other hand, Justice Antonin Scalia opined that the police did nothing wrong. When they knocked on the door, the occupants could simply have answered and denied the police entry without a proper warrant: “Everything done was perfectly lawful. It’s unfair to the criminal? Is that the problem? I really don’t understand the problem.” But the homeowner did not invite the police in either, and law enforcement's forcible entry raises questions about how secure Americans are in their homes from "unreasonable searches and seizures," the clear language of the Fourth Amendment notwithstanding.
“It still doesn’t explain how he had the money to appeal all the way to the state SC.”
Court appointed lawyer?
Don’t know.
Scalia thinks criminals should be brought to justice. That’s what’s wrong with him.
I have two words for that situation - dead cops.
I guess I’m an aberation around here. I don’t like drug dealers.
We could get rid of all the drug dealers in a specific area by carpet bombing it. It would get rid of all drug dealers there.
By the same token, if we submit to an unconstitutional police state, it would also help to crack down on drug dealers.
Now, we know both are absurd. Only leftists think in terms of only examining the furtherance of their goals without regard to the consequences.
The wrong party was smoking pot, not dealing it. Regardless, I’ll share a story from my old days living in NH - about 20 years ago.
Buddy of mine lived a few doors down from me in a duplex townhouse. He and his wife were stripping their floors and using chemicals.
Four town cops came to their next-door neighbor to conduct a warranted search for stolen goods. Turned out the guy next door was a neighborhood burglar.
Well, they smelled the chemicals as they were preparing to knock on the neighbor’s door and thought that perhaps they had the wrong address -why, I have no idea. So they knock on my buddy’s door, but didn’t say anything.
Now, my buddy and his wife had stripped from the front door, so they had to move drop cloths and ladders to get to the door. The cops heard them moving things around and broke down the door. They botched it and hit it once and it didn’t break. My buddy drew his .45 thinking it was crooks. His wife grabbed their shotgun and fed a round.
The first cop through the door got a slug in his chest, luckily missing the heart. The second cop almost got his head blown off with the shotgun but luckily the wife had good reflexes and didn’t fire. The first cop lived - barely.
The shooting was ruled justified. All four cops were suspended without pay. The senior officer was fired.
I don’t care what you smell or what you hear. That warrant better have the right address and you’d better ONLY break down doors at the address for which you have a warrant - or you could get dead - cop or no cop.
The police are not a protected class of citizens. They need rules just like anyone else for their own protection as well as that of civilians.
I’ve taken two oaths to defend it. You? I guess Scalia doesn’t like it much, either. I’m sure you know better than him.
That's a fantastic leap in logic, there. I hope you aren't a lawyer.
I hope this taught your buddy the concept of "double-tap."
In what state do you get 11 years in prison for a small amount of pot for personal use? You don’t!
If he got 11 years he was doing more than just smoking pot pot.
I see that your oaths didn’t help you support your argument with logic - only scorn.
I think Scalia has it wrong.
The only way this arrest should stand is if the police have a spotless track record for correctness and compliance with law. That cat left the bad years ago. Because a ruling affirming the cops’ actions is so very ripe for abuse, I believe that the need for a warrant correctly identifying the home to be searched (as in: actually targeting the residence they invaded) is necessary. To allow a warrantless search based on an odor and “sounds” is a very subjective standing - one which would be patently below the bar for getting a warrant.
Based on experience, I can’t see giving the police unlimited power to circumvent the fourth amendment, based on the reaction to their prior illegal stop.
Rephrasing the issue, allow me to ask you a direct question. If a policeman stops a motorist without a valid reason, smells pot, performs a search and finds pot, resulting in an arrest, do you believe that the evidence should be thrown out because the policeman had no reason to stop the car in the first place?
If you disagree the evidence should be suppressed because the initial contact with police was illegal, I believe a ton of legal precedent is against you.
If you agree the evidence should be suppressed, why do you believe that the auto is more sacrosanct than the home?
Because of the crappy reporting, we don’t know why he got 11 years. But you make quite a leap when you say, because he lived next door to a dealer, he was, therefore, another dealer. I disagree with you.
By your reasoning, as another FReeper mentioned, you’d be justified in simply carpet-bombing the entire neighborhood, killing everybody, because there is a drug dealer living there.
I don’t believe your story.
I don’t believe that cops would get shot at in a home invasion without making sure to kill those that shot at them.
/slight sarcasm
Houston, we have a problem. Arguments needed. Change needed NOW.
Then you’ve obviously never been shooting with cops, nor have you paid attention to stories about cops shooting folks where the cop empties a clip at close range and only two bullets hit the suspect.
Cops are not better shots than civilians and actually, many civilians take target practice far more often than most cops and are better shots.
Ah... an angle that I didn’t think of.
The home invading cops did TRY to kill the occupants that fired at them, but failed.
From a case in 1964, SC Judge Potter Stewart said:
“We may assume that the officers acted in good faith. But good faith on the part of the arresting officers is not enough. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers, and effects, only in the discretion of the police.”
I was correct, the guy was a drug dealer. It took awhile to find the facts in this case ( something this article was lacking), but I looked it up.
http://caselaw.findlaw.com/ky-supreme-court/1519905.html
I agree that the cops likely blew the case by kicking the wrong door, but my points were that there was much more to this case than just smoking a joint.
“Because of the crappy reporting, we don’t know why he got 11 years. But you make quite a leap when you say, because he lived next door to a dealer, he was, therefore, another dealer. I disagree with you.”
No that isn’t what I said. Read every word of what I posted, in the context that I posted it.
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