Monday, September 5, 2011

High Court Erodes 4th Amendment


Last month, an 8-1 majority of the United States Supreme Court ruled in favor of law enforcement in a case involving the exigent circumstances rule which is an exception to the 4th Amendment’s search warrant requirement.

The case, Kentucky v. King, arose when police were chasing a drug trafficker into an apartment building but did not know into which of two apartment units the suspects entered.  They approached the unit where they said they smelled marijuana.  After knocking and announcing their presence, the officers said they heard noises inside “as if things were moving around.”  Thinking that evidence was being destroyed, they kicked in the door and found illegal drugs.

The police arrested Hollis King, who subsequently sought to have the drug evidence suppressed.  The Kentucky Supreme Court ultimately held that the exigent circumstances (the possible destruction of evidence) could not justify the warrantless search.

In reversing the state high court, Justice Alito wrote, “A rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well established exception to the warrant requirement.”  Where the police, as in this case, did not create the exigency “by engaging or threatening to engage in conduct that violates the 4th Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed,” he said.

Justice Ginsburg authored the lone dissent.  As the Kentucky Supreme Court found, she said that nothing made it impractical for police to post officers on the premises while they went to get a warrant to enter the apartment.  “The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct,”she wrote.  “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 around, forcibly enter and search for evidence of unlawful activity?”

I must say that in this rare circumstance, I fully agree with Justice Ginsburg.  While she does not generally adhere to a judicial philosophy that appreciates the original meaning of the Constitution, she seems to make exceptions on 4th Amendment cases.

No offense to my law enforcement friends, but my concern is that this case will make it easier for an officer to enter a home without the hassle of getting a search warrant.  This case described the shuffling noises that were heard inside to justify a warrantless search.  Next time it may be a banging noise, unusual music, or some other strange thing that can be heard from outside the house.  Where do we stop?  The slippery slope of 4th Amendment warrant exceptions has steepened over time and it is difficult to draw the line in these type of cases.

The 4th Amendment warrant requirement is one of the aspects of American jurisprudence that makes the citizenry the safest group of people in history.  The concept was taken from England where the king and his minions could ransack the homes and imprison his subjects with impunity.

By strictly applying this constitutional protection, we are secure in our homes, bodies, and personal possessions.  The courts must take an originalist approach in applying the 4th Amendment warrant requirement to cases where a search warrant was not secured.

Unfortunately, in order to protect the people, good and bad, you must sometimes allow a criminal to go free.  This is one of the truest realities of life. 

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