Don't fret. If you don't have any drugs in your home, you have nothing to worry about. The police aren't going to do this to you, only bad people.

The Supreme Court, unfortunately, is often a lackey for the other two branches of government.

The police have never (ok, seldom) gotten the wrong address. So, you probably won't die in a raid gone wrong. Your broken down door? Sue them. Live long enough, you might collect. Then they'll raise your taxes to pay for their mistake.

OTOH, you probably aren't going to get on a plane that is going to be hijacked or bombed, but you will be searched by the TSA. You'll be taxed for that abuse, too.

It is time for us to demand that our representatives do their jobs, and reign in overreaching judges, prosecutors, cops, and government employees. Living in a relatively free country was nice, I hope you all live to experience it someday.

I don't like it, but this is pretty consistent with other 4th amendment stuff around the area of probable cause.

But hey, it gets worse. The Indiana Supreme Court recently ruled that you don't have the right to defend your home against an intrusion by police, even if they're acting unlawfully. This overturns a principle of common law going back to the Magna Charta. No doubt this will go to the USSC. If they actually, you know, believed in the Constitution, it would get overturned, but it probably won't.

It is time for us to demand that our representatives do their jobs, and reign in overreaching judges, prosecutors, cops, and government employees.

I'm with you MarkD, but there's too few who are worried about this right now to have much power. The police and TSA and all the rest are enabled by the fear and loathing of the masses, and which means that politicians who wish to rein in the security and police state are few and far between.

After Kelo, nothing the SCOTUS does surprises me.

This cannot end well.

The nice thing about suspicious noises is that they're transient and difficult to replicate. So the police can claim to have heard them in every incident. It's not like they have to see anything, which would require a line of sight. Sounds emanate around corners, through walls, and with the assistance of microphone sensing can be heard miles and miles away. We're left with about as much protection as if we allowed police to act solely on intuition.

It is time for us to demand that our representatives do their jobs, and reign in overreaching judges, prosecutors, cops, and government employees

But that's not going to happen. The real answer can't be mentioned because it would be a crime to do so.

I usually like to play the contrarian and accuse you of being alarmist and the like when you make statements that suggest that there is some sort of conspiratorial effort afoot to erode our rights or you point to some bizarre notion of a law that hasn't passed and has no chance of passing. You tend to do that, sorry.

While I still don't think there is anything conspiratorial about it or that it represents a particular trend, holy crap! This is a terrible Supreme Court decision! What, are they idiots? Was it really eight to one? Again ... holy crap.

When people say stupid things like, "The President has no power, so it's no use to get active about their candidacy", I point to the Supreme Court. A President of the United States can have a massive affect by way of his SCOTUS nominations.

By now, I'm probably well known around here for my staunch support of President Obama. Mr. President, assuming this is true, your one and only appointee to the Supreme Court just delivered what the kids these days call an epic fail.

@whistleDick: It doesn't require a conspiracy. Only an understanding that those in government constitute a separate class from those who are governed. They seek always to increase the power of government (read: their own power) in direct opposition to the whole purpose of the Constitution.

Dick, I see a whole bunch of Presidents with their fingers in this (whether they intended so or not). Who knew the authoritarian Left and the authoritarian Right would both find common cause with the current SCOTUS? I have to disagree with Brian; even knowing that this same court concurred with Kelo, I find this a stunner. Between this, the TSA, and the rapidly growing area of "administrative search", the Fourth Amendment is getting it coming and going. Later I'll post a link on how California is about to hugely expand the reach of administrative search, thanks to the RIAA.

Like Christopher said...if you're not a pothead why should you worry?

All those liberal college professors who smoke dope at home better run for the hills...

By 8 to 1 no less.

So, the LAPD knocks on your door, and "hears" muffled noises. That could be you destroying evidence! They can break in.

Really, it has gotten to the point where you need powerfully built cast-iron doors. Not to prevent burglary, but so that the local police department doesn't barge in on you while you are boffing your wife. Or your neighbor's wife.

Story in this week's New Yorker about the extensive homeland security archipelago developed after 9/11. They have spied on Americans, can spy on every domestic electronic transaction or voice communication.

Let's see: 30,000 Americans die every year in auto accidents, and 18,000 a year in domestic gunshots.

But 3,000 die on 9/11, and we throw money at the problem by trillions of dollars, and give up privacy.

And, now even domestic agencies--even the local sheriff--can troop through your front door if they hear something suspicious.

What are these people thinking? Police are human beings, for God's sake! They're capable of lying. "I thought I smelled marijuana," and there goes your fourth amendment right to refuse to have your car searched.

Personally, I think only the testimony of a drug-hound should justify a warrantless search. Of course, if that happened, the police will just be training the dogs to bark on command, and not just when they smell drugs.

Sorry. Doped up on pain meds...nothing I said makes any sense.

Volokh has an expert take on this. It is well worth reading, unless you actually prefer hysteria.

volokh.com/2011/05/19/common-misreadings-of-kentucky-v-king-and-the-difference-between-exigent-circumstances-and-police-created-exigencies/#comments

whistleDick: By now, I'm probably well known around here for my staunch support of President Obama. Mr. President, assuming this is true, your one and only appointee to the Supreme Court just delivered what the kids these days call an epic fail.

Obama has two appointees to SCOTUS, not one. The "wise Latina woman," given to racism, sexism, and redundancy, Sotomayor, and the anti-military Kagan.

I've often thought that I need to post video cameras at every entrance to my house. That's the only way I can think of to challenge any allegation from the police that they "thought they heard evidence being destroyed."

Good grief.

It would be nice if the LA Times hired reporters who can actually read legal decisions and report accurately on them. For anybody who wants to read the opinion, it's available here:

http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf

To begin the deconstruction, let's start with the subheading from the LA Times:

Officers may break in if they hear sounds and suspect that evidence is being destroyed, the justices say in an 8-1 decision.

Not only is that NOT an accurate description of the Court's decision, it isn't even an accurate statement of the law. Here's the actual holding of the case, which is pretty clear:

For these reasons, we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.

The "exigent circumstances rule" is a long-held exception the 4th Amendment protection against warrantless searches. Here's the court's statement of the rule, along with a citation:

One well-recognized exception applies when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U. S. 385, 394 (1978);

I refer to the citation because it shows that the exigent circumstances exception to the 4th Amendment is settled law. The court isn't creating anything new here--it's following precedent.

So what kind of "exigencies" create an exception to the 4th Amendment right against warrantless searches? The court sets forth a series of examples, all from settled case law:

--emergency aid--“officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”

--hot pursuit--"officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect"

--destruction of evidence--“to prevent the imminent destruction of evidence”

Yes, the Supreme Court says the police can conduct a warrantless search in order to prevent the destruction of evidence, but that's already the law, has been for years, and the Supreme Court's decision in this case doesn't change that one iota. The LA Times article spotlights this as it's innovative. It ain't.

Second, it's not enough that the police "suspect" that evidence is being destroyed. Here is the Court's statement of how the 4th Amendment and its exceptions are to be applied:

Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured. “It is a ‘basic principle of Fourth Amendment law,’” we have often said, “‘that searches and seizures inside a home without a warrant are presumptively unreasonable.’” Brigham City v. Stuart, 547 U. S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U. S. 551, 559 (2004)). But we have also recognized that this presumption may be overcome in some circumstances because “[t]he ultimate touchstone of the Fourth Amendment is‘reasonableness.’”

So it's not enough that the police "suspect" that evidence is being destroyed. The police/prosecutor must show that such a suspicion is based on evidence that would lead a reasonable person to believe that evidence is being destroyed.

Again, this is nothing new. It's settled law.

So what does the SCOTUS opinion change?

This case overturns a decision by the Kentucky Supreme Court (Kentucky). Kentucky ruled that "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.'" Kentucky further "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.

The SCOTUS rejects this reasoning. If the police knock on a defendant's door and announce their presence, that does not mean that, as a matter of law, the police cause the defendants to destroy evidence, thus bringing about the exigent circumstances. Only if the police "gain entry to premises by means of an actual or threatened violation of the Fourth Amendment" would the police create the exigent circumstances, and the search become illegal. That's all SCOTUS held. Period.

The SCOTUS does NOT hold, as a matter of law, that it was reasonable for the police to enter the defendant's residence in the circumstances. Kentucky never addressed that issue, so the SCOTUS remanded, or sent the case back down, for further proceedings.

An hypothetical situation using one of the other "exigent circumstances" may demonstrate why the SCOTUS decision is correct.

The police receive a noise complaint and arrive at a residence. At time of arrival, the area is quiet with no sign of trouble. The police knock on the door loudly and yell, "Police!". Immediately they hear a woman screaming for help.

Following the Kentucky court's reasoning, the police are not permitted to enter the residence. But for the police loudly announcing their presence, the woman wouldn't have screamed. Therefore, the police created the "exigent circumstances", and a warrantless search is illegal.

Following the SCOTUS reasoning, the police can knock and announce their presence, and, if exigent circumstances then arise, such as a woman screaming or the sound of evidence being destroyed, the police may enter without a warrant. If the police either begin or threaten a warrantless search, any subsequent "exigent circumstances" that arise will not excuse the warrantless search.

Thank you, Dale.

Would it be correct to assume that even if the police enter a residence due to the exigent circumstance of believing evidence is being destroyed that a) they would still need warrant to complete the search of the residence and b) if the evidence is that there was no evidence to destroy, the police could suffer a civil suit?

I love the people who only too happily give up their rights with a cheerful, if you're not doing anything wrong you have nothing to worry about!

If you're not Jewish why do you care that the Nazis are rounding em up...

To say nothing of the strong argument in favor of legalizing marijuana but hey the gub'mint says it's illegal so it's bad and anyone who thinks otherwise deserves what they get.

I love the people who only too happily give up their rights with a cheerful, if you're not doing anything wrong you have nothing to worry about!

Absolutely right. Thank you so much for posting that, Sheyna.

Would someone explain to me what this "sound of evidence being destroyed" is? Is that a specific, distinctive sound?
If you hear someone scream in fear or shout help, that's a fairly specific sound that would justify police entering under exigent circumstance, to prevent harm. But there is no unique "sound of evidence being destroyed". Almost any sound you hear, you could say it sounded like evidence being destroyed, quite aside from how easy it would be to say you heard something. Crumpling paper--they're shredding evidence. Toilet flushing--they're flushing evidence. Silence--they're not answering the door, I was afraid they were destroying evidence.

"Obama has two appointees to SCOTUS, not one." Oh man, I forgot all about Kagen. It was late at night, my time, when I posted. Thanks for the correction. I have to disagree with your characterization of them though. A lot of smearing goes on during a confirmation hearing.

Dale, thanks very much for explaining the ruling. Something told me the headline was too alarmist to be true. I fell for it.

Thank you Dale!

Like Christopher said...if you're not a pothead why should you worry?

Can't the w3 consortium create a working <sarcasm> tag? That's actually the opposite of what I meant.

Actually, even if you're innocent, giving the police even more of a right to arbitrarily enter house than they already do puts you and your family at risk. In these heated situations, cops are known to hurt innocent people, shoot their dogs (this happens a lot), and when this happens, the blame is far more likely to fall on the victims than the cops.

Joe:

Would it be correct to assume that even if the police enter a residence due to the exigent circumstance of believing evidence is being destroyed that a) they would still need warrant to complete the search of the residence

I can't quote case law for you, but my best guess is that the police may conduct a search until it's no longer reasonable for the police to believe an exigent circumstance exists. For example, all of the occupants of the residence are accounted for and no one was caught destroying evidence. Then, if the police want to search further, they'll need a warrant. One further caveat: if the police conduct a legal search and during that search observe evidence in "plain sight", it's admissible. So if the police enter the residence with a reasonable belief that evidence is being destroyed, and your drugs are strewn all over the dining room table, you're screwed.

b) if the evidence is that there was no evidence to destroy, the police could suffer a civil suit?

Again, I can't cite case law, but I'd say yes, there would be a possible civil cause of action against the police. The plaintiff would have to prove that the police (negligently? recklessly?) believed that an exigent circumstance existed, and thus violated the plaintiff's 4th Amendment rights when they entered the residence. The difficulty would be establishing damages. If the police destroyed property or caused personal injury, they might be liable for money damages. If they just scared you or pissed you off, what are the damages?

If the police conspired to knowingly violate the plaintiff's 4th Amendment rights, there could be criminal action against the policemen, too.

Here, via Insty, is that article on warrantless "administrative" searches backed by the RIAA that I mentioned a while ago. What's happening is that the RIAA wants the compact disc manufacturing industry to be declared a "closely regulated industry" and therefore subject to warrantless search by whatever the hell agency is going to be created to be the regulator of compact disc manufacturing. Furthermore, the bill that the RIAA is pushing will allow police to seize CD manufacturing plants and equipment if they merely "suspect" that the equipment is being used for illegal duplication, without a warrant or a show-cause.

This "administrative serach" is a clever way of dodging the Fourth Amendment. Did you know that the EPA has the power to enter your property, at any time, without a warrant, if they merely "suspect" that an endangered species exists on your property? And if they find one, your property is effectively seized -- you can no longer use that property for any purpose whatsoever. However, you will be held responsible for the costs of EPA-mandated alterations in order to accommodate the endangered species, in addition to having to continue to pay taxes on your now-worthless property. Furthermore, if the EPA in the course of their search finds evidence of any crime being committed, they can turn that evidence over to the police and it can be used against you in court. There is no limit to what they can search or where they can look.

Now, this California thing isn't law yet. But the RIAA swings a big stick in California. Expect the law, when it passes and survives court challenges, to serve as a template for declaring pretty much everything a "closely regulated industry" such that the Fourth Amendment no longer applies in most cases. Obviously, if CD manufacturing -- which poses no particular threat to the public -- can be declared a "closely regulated industry", then anything can.

LauraB wrote:

Would someone explain to me what this "sound of evidence being destroyed" is? Is that a specific, distinctive sound?

"Oh shit!!! Take it! Take it!"

TROMP TROMP TROMP TROMP

SLAM

BANG

FLUSH

Use your imagination. It ain't hard.

Almost any sound you hear, you could say it sounded like evidence being destroyed,

The standard is not that you thought that evidence was being destroyed, its that a reasonable person, given the circumstances, would believe it likely that evidence was being destroyed. Judges are not rubber stamps. They can and do exclude evidence on a regular basis. After all, that's why this case was before the Supreme Court.

Crumpling paper--they're shredding evidence.

Uh huh. So if the police knock on your door and yell "Police", it's not a good idea to work on your speed origami skills or start a shredding project. Instead, ask them if they have a warrant. If they don't, and you don't want to talk to them, tell them to get one.

Toilet flushing--they're flushing evidence.

Y'know, when the police are knocking on my door, my first reflex is not to relieve myself and repeatedly flush my toilet. Instead, I'd ask them if they had a warrant. If they didn't, and I didn't want to talk to them, I'd tell them to get one. Something tells me my sphincters would work just fine to prevent any accidents until the police got off my porch.

Silence--they're not answering the door, I was afraid they were destroying evidence.

There's not a snowball's chance in hell that a trial judge would accept that as sufficient. He or she would skin the prosecutor alive for even trying it.

Personally, I don't answer the door if I'm not expecting anyone. I don't answer the phone if it's a number I don't know.
My house, my phone, leave me alone.

Thanks Dale for the great information.

When using Judge RBG's opinion to support a point of view, I suggest taking a second and third look at that point of view.

Hey, in Indiana they've completely negated the Fourth Amendment (as well as Section 11 of Article 1 of the Indiana constitution) by saying that citizens cannot legally resist the UNLAWFUL entry of police into their homes.

Indiana legislators are going to have to take action (they were originally counting on this being negated by the US Supreme Court which, considering their recent decision, is not likely).

http://www.nwitimes.com/news/state-and-regional/indiana/article_b61b0472-a66d-5e33-8763-8cd381e3f67e.html

Nicely done, Dale

“Actually, even if you're innocent, giving the police even more of a right to arbitrarily enter house than they already do puts you and your family at risk. In these heated situations, cops are known to hurt innocent people, shoot their dogs (this happens a lot), and when this happens, the blame is far more likely to fall on the victims than the cops. “

This seems like an important point from Christopher. I don’t like sounding so paranoid, but it does seem like people could be putting their families at risk when they open a door to the police. I assume that statistically these events are rare, but they do happen. I am a dog person and I have read reports of family dogs being shot because they were acting threatening to the police when they raided a house, which I believe any dog would do when strangers enter a home quickly and without the apparent consent of the dog’s owners. That is the hole in the logic I hear in Dale’s statement:

“Uh huh. So if the police knock on your door and yell "Police", it's not a good idea to work on your speed origami skills or start a shredding project. Instead, ask them if they have a warrant. If they don't, and you don't want to talk to them, tell them to get one.”

Following Dale’s logic you should open the door to the police to talk with them to see if they have a warrant (and presumably show that you are a lawful citizen). I do think this would work out most of the time. However, if the police you are dealing with are in a high stress state for some reason and have a pre-conceived idea that you are threatening for some reason, then when you open the door you could be putting yourself and your household at risk. I like to believe that the police are all good people who are trying to do the right thing for the public, but sometimes for whatever reason they are in high adrenaline states and make what in hindsight are poor decisions, just like everyone else. So if the search was illegal and they didn’t find anything illegal then you can clear that all up in court over the course of a couple years. If they shot your dog in the process, it is still dead.

AK wrote:

Following Dale’s logic you should open the door to the police to talk with them to see if they have a warrant (and presumably show that you are a lawful citizen).

I didn't say you should open the door. You ask the police (through the door) if they have a warrant. If they say "no", and you don't want to talk to them, you don't open the door. If they say "yes", ask them to show it to you. (From a window, under the door, through the peephole, with the chain on the door) If they refuse, you don't open the door. If they show you the warrant, then open the door.

If you decide to open the door and want to protect your dog, put the dog in a closed space (like a bathroom) before you open the door. Tell the police that you've got a dog and that you're putting it away. My Rottweiller doesn't bark much, but if the police were pounding on my door, the police would know she was there.

Thanks for clarifying Dale! Your explanation above is a helpful addition to your previous comments. I am very attached to my dog and when I hear stories of family pets being killed (even in very rare situations) it is very emotional to me.

Thanks for the additional info Dale! I am very attached to my dog and when I hear of family pets being killed (even on very rare occasions) it is very emotional to me. Your suggestions seem like a good strategy to avoid that outcome.