Tuesday, May 17, 2011

On the Fourth Amendment (we hardly knew ye)

Okay, so the police get to come into your home whenever they want, for whatever reason. If you got up to go to the bathroom or make a sandwich and missed that, I'll repeat it: The police get to come into your home whenever they want, for whatever reason. This new and exciting twist to our Fourth Amendment comes as a gift from our very own U.S. Supreme Court, who decided in an 8-to-1 ruling that the suspicion that evidence is being destroyed inside is sufficient cause for the police to enter without a search warrant.

Before I continue: At no point during the discussion of this development will I accept or even debate the argument "If you're not doing anything illegal, you don't have to worry." I do have to worry, and I get to worry. My constitutional protection from unreasonable search and seizure doesn't come with the condition that I not be doing anything naughty inside--it's absolute, and the only acceptable exception involves the serious consideration of a judge followed by a search warrant. I may be doing something legal but private inside--crafting a politically controversial manifesto, writing deeply disturbing fiction with terrorist fantasies and deviant sexual themes, dressing up in a rubber suit and touching myself in front of Mythbusters. If cops knock on my door and yell "Police, police, police," hear scuffling inside, and charge in to find me sumo wrestling naked in my living room with a grown man dressed like a baby, that's not okay. Adult baby sumo isn't illegal, but it's a rather private activity and not something that anyone gets to see if I don't want them to.*

(NB: Top search terms for this blog are fixing to get bizarre.)

Moving on: The Supreme Court ruling is based on the concept of exigent circumstance, wherein police can enter without a warrant
if all of the circumstances known to the officer at the time, would cause a reasonable person to believe that entry or search was necessary to prevent physical harm to the officer or other persons/the destruction or concealment of evidence/the escape of a suspect, and if there was insufficient time to get a search warrant.
(This definition isn't word-for-word from any specific decision, but we'll go with it as an accurate summary of the concept unless one of my surprisingly numerous lawyer commenters says otherwise.) Exigent circumstances provide an exception to the "knock and announce" statue, requiring officers to, well, knock, announce their presence, and be refused entry before busting in.

The question with this ruling is whether or not the police are actually creating the exigency by knocking and announcing. If they suspect evidence is being destroyed inside, that's one thing; if the suspects start destroying evidence only because the police arrived--if the evidence otherwise wouldn't have been destroyed in the time it took for the officer to acquire a warrant--that's another, and the Kentucky Supreme Court reversed the initial ruling on Kentucky v. King on that basis.
In King’s case, the Kentucky Supreme Court said, the warrantless search of the apartment was improper because it was reasonably foreseeable by the police that the occupants of the apartment would start destroying evidence once officials banged on the door, and announced: “Police-police-police.”

That action would then create an emergency that would be used to justify breaking down the door and conducting the search without a warrant, the Kentucky high court said.
Obviously, the U.S. Supreme Court disagreed.

And that's where the threat to our Fourth Amendment rights comes in. This ruling creates a situation wherein the police can enter any house under any circumstances with the excuse, "I knocked, and it sounded like something shifty was going on inside." Justice Ruth Bader Ginsberg, the lone dissenting voice, tends to agree:
“In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down,” she said. “Never mind that they had ample time to obtain a warrant.”.
The Constitution and hundreds of years of legal precedent have established a series of standards of treatment for every person--we're meant to be innocent until proven guilty, and that means that my rights as a not-suspected-of-a-crime individual don't change once I become a suspect. That those standards can now be set aside on the basis of, "Well, I did knock first!" is disturbing, and while I'd love to close here with some kind of a call to action, I have no idea what any of us can do about it.

*Update: I've just been informed that in the state of Alabama, anything outside of missionary-position sex between a married couple actually is illegal. Regardless, the cops don't get to see that custom-made size 7 7/8 baby bonnet without a warrant.

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