- Justice Ruth Bader Ginsburg
By Alan Bean
The Supreme Court of the United States just gave police officers permission to evade the fourth amendment at will. Eight justices signed off on this deal; Justice Ruth Bader Ginsburg dissented forcefully.
At issue is the meaning of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Supreme Court has traditionally concluded that “searches and seizures inside a home without a warrant are presumptively unreasonable.” The only exception to this rule is when police are dealing with “exigent circumstances”.
What is an exigent circumstance? Risk of death of serious bodily injury qualifies as exigent. The likely escape of a criminal suspect makes the grade. Finally, police officers can smash open your door if they have reason to believe that evidence is being destroyed.
But there used to be a catch. Police officers were not allowed to create an exigent circumstance by banging on the door or shouting. If signs that evidence was being destroyed inside a private dwelling existed when the police arrived at the scene, they could enter the home without a warrant; but they could not stimulate the destruction of evidence by announcing their presence.
Now that has changed.
The Supreme Court’s recent decision was sparked by Kentucky v. King, a case in which police officers witnessed a drug deal and followed the suspect to an apartment building with doors opening to the left and right. They heard a door close but arrived too late to determine if their man had entered the door on the right or the door on the left. The smell marijuana coming from under one of the doors made their choice for them. After pounding on the door and announcing their presence, the officers say they heard the sounds of moving furniture and determined that evidence was being destroyed. They then kicked in the door and discovered three people, (one of them smoking marijuana) and a variety of illegal drugs “in plain sight.”
It turns out the man the police were chasing was hiding in the apartment across the hall.
The Kentucky Supreme Court concluded that the evidence obtained from the search was not admissible in court because the officers, by knocking loudly and announcing their presence, had created an exigency that would not otherwise have existed.
Ginsburg’s dissent:
“The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases” Ruth Bader Ginsburg wrote in a blistering dissent. “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.”
In Justice Ginsburg’s view, everything came down to a simple question: “May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.”
Ginsburg believes the issue was settled by the 1948 case Johnson v. United States in which a similar scenario involving opium, a locked door, and the sound of shifting furniture led police officers to enter a home without a warrant. As Justice Robert H. Jackson (the last Supreme Court Justice who never graduated from law school) observed at the time, the warrant requirement is one of the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”
This is the key issue; are the police under the law or are they free to do as they will?
As the court noted in 1948, if the police can escape the warrant requirement by creating an exigent circumstance, “it is difficult to think of [any] case in which [a warrant] should be required.”
Ginsburg, correctly, noted that the police in the Kentucky case could easily have posted an officer at the door while they went in search of a warrant.
There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, ‘persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.’ Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.
Then Ginsburg asked the question that should concern every American citizen:
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, forcibly enter and search for evidence of unlawful activity?
Who decides the basis for a “reasonable” search, an officer in the heat of the chase, or an objective magistrate? After the court’s ruling in Kentucky v. King it appears the police are free to make the difficult calls without recourse to a judge.
If Justice Ginsburg is so upset, why do the other eight justices not share her concern?
I’m not sure, but I can make an educated guess. So long as police officers continue to honor the sanctity of the American home in the suburbs, no one is going to worry too much about what’s going down in the hood. There has always been two sets of rules for police officers; one for “good neighborhoods” and a second for “bad neighborhoods”. The Supreme Court’s disastrous ruling in King v. Kentucky simply formalizes the prevailing viewpoint. The eight justices who signed off on this ruling don’t live in good neighborhoods, they live in great neighborhoods. Hence, they have no reason to fear the knock on the door in the dead of night. In their world, the police are still under the law, so who cares if, on the poor side of town, the police are the law.
Friends of Justice 
Yes, the police behave differently depending on the neighbourhood. but many people in the inner city still want to get rid of the harm that drugs do to their neighbours and to the whole city. Whether or not the epidemic of drugs, especially crack, is solely to blame, or that the government’s withdrawl of services and insertion of endorcement is to blame, is debatable, but addicts are hell to live with. If police are used for the needs of the community in which they are serving, (as they usually are in suburban and more affluent communities) resources will be concentrated on violent crime and other serious problems people see. Much of the violence between drug dealers themselves, and with the police, are caused by trying to make large numbers of small-scale arrests at the bottom of the crime “pyramid”–it doesn’t do much to change things, since there are lots of kids in the hood with no hope, who might as well take that place at the bottom–but it looks good on paper, and more arrests means the budget gets at least renewed for next year, the same tactics get bumped up a notch, and more young men go to prison than go to college.
I am middle-aged and “white” and I live in a “good” neighborhood, Verona, WI. There are very few robberies and no street crime. The police came to my home without a warrant to arrest me at the request of the USMS. They rang the doorbell and my son answered and came to tell me that they were looking for me. I went outside and they forced me into their car. At the time, I had just finished mowing the lawn and was wearing old jeans that were actually pretty tight. I had my keys in my pocket. The officer patted my rear and asked me if there was contraband in my pocket. I always suspected that he would have put drugs in my pocket but he couldn’t because my jeans were so tight. P.S. I don’t have a criminal record at all.
The amazing thing about this ruling was that it was 8 to 1, and that both of Obama’s appointees voted with the majority to shred the fourth amendment and give police the power to kick in our doors — even though in this case they kicked in the door to the wrong apartment. And, this also raises the question that has plagued the feminist movement from its inception, “Do women want equality solely so that they can be oppressors like their white male counterparts?” In the military, these givers of life, are just as murderous as the men. In law enforcement that are just as brutal and insensitive to the weak and powerless. What do they bring to positions of power that their white male counterparts don’t? Compassion? No! Justice? No! There is no difference. So much for Obama’s appointment of two females to the Supreme Court. Whether you have a vagina or a penis should not be the reason you are selected to a position of power….
You must understand that a police officer has no more right to arrest than an ordinary citizen. The Police Power is derived from the consent of the governed. The states are not republics but democracies where the referendum power is present, such as here in California. Therefore, the state can confer no more power than it has. There is no special police power that can be given the certain citizens of society and not others, absent a citizen committing a crime. Therefore, the issue really becomes would the wife have a right to arrest the police officer for suspicion of murder. Considering that she witnessed the killing it would be completely reasonable for her to effectuate her power to arrest the officer on suspicion of the commission of a felony and, if necessary use deadly force. Moreover, any officer that comes to the aid of the officer resisting arrest could become an accessory after the fact. That is why we have the knock and announce rule. When the knock and announce rule is followed then these insane scenarios are avoided. It is insufficient that person yells police and then guns penetrate the walls of one’s home without objective evidence of the veracity of the statement. It really boils down to choices. Would you rather be in jail over the killing of an individual whom you erroneously believed posed an imminent threat to your life or would your rather be a law abiding corpse? Yes, I know it would be best not to be placed in that situation. However, more and more Americans are finding themselves subjected to this type of law enforcement activity. Perhaps we should return to the knock and announce rule. If the courts really desire peace they would strictly enforce that requirement.
When the Supreme Court of our land is “free” to interpret “The right of the people to be secure …” in such a manner … that an armed force of men and women have the “right” to “redefine” “secure” to mean that they are allowed to break down the door of any citizens home at any time of day or night … and that such a citizen has “no right” to defend their home from said invasion … seems contrary to the also granted right of “a citizen” to “defend” their home from an invader. The presumption of the court that police agencies will “in good faith” respect the boundary of private property rights … when the temptation exists to do otherwise … is blatant foolishness. The founding members of our country had a clear vision on this matter … the fourth amendment is a brilliant piece of writing … and crystal clear in its intent and purpose.
Shame on our Supreme Court.
A far more serious question now remains to be resolved. When the highest court of law of our country clearly has mistakenly interpreted this right … what can we, what should we, do as citizens? As leaders? To restore the balance of power to where it belongs: in the hands of the people and not in the hands of its government, police, and military.