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Kentucky v. King and the abandonment of common sense

Posted by Josh M. Solberg | Aug 19, 2014 | 0 Comments

Eight of the nine justices of the United States Supreme Court just found no Fourth Amendment violation, in Kentucky v. King, 2011 U.S. Lexis 3541 (May 16, 2011), where officers who entered an apartment without a warrant after they knocked and announced their presence and heard a commotion inside the house. The eight majority justices all held that this commotion constituted an “exigent circumstance” justifying the warrantless entry–that is, that the people inside were about to destroy evidence. This holding reflects a shocking lack of common sense, one that was noted by the only dissenting judge, Justice Ruth Bader Ginsburg.

The factual details are important: police officers are conducting undercover drug buys and surveillance of an apartment. An officer watched an undercover buy take place, and radioed other officers to arrest the seller “before the suspect entered an apartment.” The officers didn't approach quickly enough, and by the time they got to the apartments, all that was left was the remaining scent of marijuana, wafting from the closed door of one of the apartments. The officers knocked on the door and announced their presence. After hearing the aforementioned commotion, they broke down the door and entered, without first getting a warrant to enter the house, as is traditionally required.

Justice Ginsburg noted the problem with calling this exigency: had the police not knocked on the door, and announced their presence, the people inside would have remained inside, doing whatever it is that drug dealers do inside their apartments (playing X-Box, I imagine…). In the meantime. the majority of the police officers conducting the surveillance could have continued watching the apartment, making sure that nobody left with, for instance, a bag of drugs or money, while another officer went and got a warrant to search the apartment. Had the officers not knocked and announced their presence, therefore, there never would have been any fear of loss of evidence. The police could have done as the Fourth Amendment commands–that is, get a warrant when it is practical to do so.

But they didn't. These officers were emblematic of the  concern for which the warrant requirement exists, as noted by Justice Jackson long ago, in Johnson v. United States, 333 U.S. 10, 13-14 (1948): they were engaged in the “often competitive enterprise of ferreting out crime.” They clearly didn't stop to think about whether their actions were justified under the Fourth Amendment before they busted down the door of that apartment. What is missed by the eight members of the majority in this decision is that the so-called “exclusionary remedy” that was created to give teeth to the Fourth Amendment was created precisely to make police think about the legality of their actions before they act. They are supposed to know that, if they don't stop to think, “Do I need to get a warrant?” their evidence might be excluded.

Or maybe the eight justices in the majority didn't miss it at all. Maybe, instead, they, like many judges in this age of pervasive concern for security against any number of foes, both named and unnamed, have come to think of themselves as agents of those security forces. Many of my colleagues in the criminal defense bar would argue that the court has been engaged for at least the last twenty years in an effort to limit (some would say “do away with”) the protections of the Fourth Amendment. And this case certainly has that effect. As Justice Ginsburg noted in dissent, police who wish to enter a person's home now only need to knock and announce their presence, and then wait to hear some rustling within, to justify their forced entry without a warrant. There is no longer any need for police to ever present their evidence showing probable cause to a magistrate and to allow that neutral arbiter to decide whether a warrant is justified.

Thanks in part to the King Court, police can now just knock and announce that they are present, wait for the rustle of feet, and then break down the door, no warrant required. I assume that jack boots will become standard issue for narcotics cops…

About the Author

Josh M. Solberg

Joshua M. Solberg possesses the keen analytical insight and attention to detail required of a successful Law & Motions practitioner. His understanding of the intricacies of federal and state Constitutional and criminal law, his tireless devotion to research and his ability to recognize winning issues make him an invaluable asset for those represented by The Criminal Defense Group.


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