A series of recent court rulings, in cluding one this week from the US Supreme Court, appear to erode one of our bedrock defenses against the arbitrary, abusive power of the state.
At risk: the Fourth Amendment guarantee to all American citizens of the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
On Monday, in Kentucky v. King, the high court upheld the conviction of a man arrested after cops — who were tailing a suspected drug dealer into an apartment building — smelled marijuana smoke and banged on his door. When they heard noises coming from the apartment “consistent with the destruction of evidence,” they broke in and found drugs.
But they had the wrong guy. The drug courier was in another apartment. Hollis King may have been breaking the law, but he was minding his own business, on his own premises, and only became a suspect after the police had made their mistake.
But Justice Sam Alito, writing for the 8-1 majority, said, in effect, So what?
“Exigent circumstances” — in this case, the possible destruction of evidence — justified the forcible entry. He wrote: “The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation” — since King could have simply ignored the knock at the door, or could have opened his door and declined to answer any questions.
“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless . . . search that may ensue.”
What planet is Alito living on? The whole point of the Bill of Rights is to restrict authority. The Founders, who suffered under the British system of “general warrants” and “writs of assistance” — i.e., fishing expeditions — wished to ensure that no American home could be searched without probable cause and a duly issued warrant specifying exactly what police are looking for.
The case has been remanded to Kentucky, to sort out whether the circumstances were truly “exigent.” But Alito’s interpretation is an open invitation to abuse — as Justice Ruth Bader Ginsburg emphatically warned in her dissent:
“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down — never mind that they had ample time to obtain a warrant. I dissent from the court’s reduction of the Fourth Amendment’s force.”
Just such a reduction is well under way in Indiana, whose Supreme Court recently ruled that Hoosiers have no right to resist even unlawful police entry into their homes.
“We believe . . . a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” wrote Justice Steven David. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”
In other words, for your own safety, shut up, sit down and reach for the sky. You’re guilty until proven innocent.
David (the former chief defense counsel at Gitmo) helpfully noted that citizens arrested during an unlawful police entry could always get out on bail or take the issue to court.
Meanwhile, out the window went a basic tenet of British and American common law dating back to the Magna Carta in 1215: A man’s home is his castle. As the dissenting Indiana justices pointed out, the ruling essentially says that a government agent can enter any home at any time, without need for either a warrant or an emergency.
The problem is, even well-intentioned police make mistakes. In Arizona this month, a Pima County SWAT team on a sweep of the neighborhood fired 71 rounds into the home of Jose Guerena, killing him. He was a Marine, a veteran of the Iraq War, with no criminal record.
All good citizens support the cops, who have a tough job to do. But our courts, in the name of law and order, are giving them far too much leeway — and endangering our freedom.