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.
*shrug* - I didn’t say that there never were; I said that I didn’t ever hear about them.
Perhaps you just aren’t looking? There are hundreds, perhaps thousands, of such stories available at the click of a mouse.
But if they smell marijuana and do NOT get a valid warrant, they cannot use the results of the search, correct?
You are missing my point, I think.
The officer must affirm under oath that they smelled marijuana, prior to executing the search. PRIOR to the search. A smell isn’t enough to perform a warrantless search.
If there is significant precedent that belies that last statement, please correct me. But it is the basis by which the state supreme court threw out the case under discussion, unless I misunderstood the article. Therefore, it appears that the avoidance of proper procedure - that is, proper sequence - is a poison in the well against which the case does not survive.
I believe that people should live within the laws of the land. I believe the police must also do so.
I never claimed to have any interest in them, now did I?
Besides which, even “enforcing the law” can be questionable.
Consider this, the New Mexico State Constitution says:
No law shall abridge the right of the citizen
to keep and bear arms for security and
defense, for lawful hunting and recreational
use and for other lawful purposes, but nothing
herein shall be held to permit the carrying
of concealed weapons. No municipality
or county shall regulate, in any way, an incident
of the right to keep and bear arms.
Yet there is a State Statute prohibiting the carrying of firearms on University grounds [— full text: http://www.conwaygreene.com/nmsu/lpext.dll?f=FifLink&t=document-frame.htm&l=query&iid=6c1804dd.55b72e94.0.0&q=%5BGroup%20%2730-7-2.4%27%5D —] as well as a law prohibiting the carrying of weapons on carrying a deadly weapon on school premises [—full text: http://www.conwaygreene.com/nmsu/lpext.dll?f=FifLink&t=document-frame.htm&l=query&iid=6c1804dd.55b72e94.0.0&q=%5BGroup%20%2730-7-2.1%27%5D —].
The first statute abridges the right of the Citizen, living in on-campus housing, to both bear AND keep arms (with the possible exception of keeping them in his vehicle; yet there is no guarantee, or legal requirement, that he have a vehicle). So then, if one were to strap on their .45 and openly carry it on campus, and be subsequently arrested, would that arrest be valid?
But let’s go into some even less arguable circumstances. Notice how the State Constitution prohibits a municipality or county from regulating “IN ANY WAY” an incident of the right to keep and bear arms. Now, on both municipal and county courthouses there are posted “NO WEAPONS”, and upon inquisition on whose authority that falls under, I have been informed that it is the judge’s own authority. Now the judge, operating in a municipal [or county] courthouse must needs be an agent of that municipality [or county], no? If he is, then how can he be regulating incidents of the right to keep and bear arms? Furthermore, would the attempt to take your weapons with you (say to jury duty) be lawful? [Or would it be “deemed to be ‘unlawful’” or “contempt of court”?]
Insanity Ping.
As TSgt said: “Note this day in history, I agree with Ginsburg and Sotomayor.”
So of course the Drug Warriors need to break the door down so they can achieve this month's arrest quota, and put a man in hell for a decade so they can do *something* while MS13 is selling 12 year-old girls and machine gunning suburban neighborhoods down the street.
The War on Some Drugs is a war on the Constitution.
It's Prohibition on acid, steroids, and meth.
>The War on Some Drugs is a war on the Constitution.
>It’s Prohibition on acid, steroids, and meth.
Not quite; prohibition had Constitutional backing/authorization.
The War on Drugs has... nothing.
Don't ask me. Ask an attorney who has spent years studying case law. "Why were the Founders wrong?" How about "Why do you beat your wife?" It's the same kind of snarky question I've come to expect these days.
>>Second, no pot user lives next door to a known pot dealer and isn’t involved with that dealer in some way. Common sense tells you that the neighbor of the dealer, was also a dealer.
That is one of the more absurd things I’ve seen a FReeper write lately. Have you ever lived in a large apartment complex? It is very easy to have very, very little contact with your neighbors.
Excellent point.
Oh well, we don't need a natural born citizen for a President, we don't need to have our Congress do anything but "deem" unread legislation passed, we don't consider the TSA's formalized sexual abuse to be a violation of the 4th Amendment, so why should we care that the War on Some Drugs is an illegal war?
Could the revised FISA act have applied to a situation like this? Maybe the police, under those circumstances, could have obtained a warrant after the fact.
You win a cookie for being the second person to take part of that post out of context and run off about it.
BTW...he was a drug dealer.
You, and the police, didn’t know that at the time.
I’m not sure what context there was that made your statement in any way reasonable. For fun, go back and read post #27. Do you think those people were burglars? If not, why not?
It matters not a whit if the person charged with the crime didn’t do the alleged crime.
Take murder, for example, let’s say that Mr. A and Mr. B are both murdered {time and place irrelevant} and the murderer of Mr. B — who is innocent of the murderer of Mr. A — is caught by the authorities and charged with the murder of Mr A.
In such a case, though the man *IS* in fact a murderer he should be found innocent, for he was (and is) innocent of the crime he is being charged with: Murdering Mr. A.
Now, if we extend this to warrants, then the police having a warrant for Drug-Dealer A, instead breaking in on drug-dealer B, have NO LEGAL STANDING. Their warrant was for Drug-dealer A and it matters not a whit that drug-dealer A was in fact dealing drugs insofar as that warrant is concerned.
Beside the point. It doesn't matter what he was doing.
Scalia didn't use "I don’t like drug dealers" as a rationale.
Sounds like he sure doesn't much care for criminals in this case.
Every point listed in the tiny article effected the reason I came to the conclusions I did.
The fact that he was found guilty and given 11 years was a very major factor in every other conclusion. You don't get 11 years for smoking a joint anywhere.
One other opinion I made was that a pot user that lived right next door to a known pot dealer had likely had contact with that dealer in the past.
Point being, why would anyone risk getting caught making a street buy when they could go next door where nobody could possibly see him? It was a hall with only two doors that couldn't be viewed from anywhere else.
All of those things have to be included to take my comment in context.
The original article didn't make sense because far too much information was left out, likely on purpose by the author to make a point. Selective reporting typical of the MSM.
I spent some time digging up the facts in the case, which did prove my theory was correct.
Will the guy get off? I don't know, but, I still think the case was a poor example to take to the USSC to test the warrant-less search issue.
>The fact that he was found guilty and given 11 years was a very major factor in every other conclusion. You don’t get 11 years for smoking a joint anywhere.
The reason this point is such BS is it is basically the same thing as saying that the Waco incident was a-ok because the majority of the task-force was NOT charged with murder [and as far as I know no-one was convicted thereof].
Furthermore, as far as the “you don’t get X for...” argument goes let me remind you that Koreshe’s group was ACCUSED [not convicted] of evading a tax [concerning firearms]; Randy Weaver’s wife was killed [in a government operation], according to the government, because they ACCUSED Weaver of selling too-short sawed-off shotguns.
“The reason this point is such BS is it is basically the same thing as saying that the Waco incident was a-ok because the majority of the task-force was NOT charged with murder [and as far as I know no-one was convicted thereof].”
No, it isn’t the same as anything else. My comments apply only to what I commented on.
You can play with your strawman by yourself.
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