Police officers following a suspect into an apartment complex in
Lexington, Ky., don’t know which apartment their man has entered. But
wafting through one of the closed apartment doors is the familiar odor
of marijuana. The smell provides reason to believe criminal activity is
afoot, probable cause for a warrant to search the apartment.
Do the police stake out the apartment and go for a warrant? No, they
do not. Instead, they bang on the door, shouting, “Police, police,
police.” No response — at least, no verbal response. From behind the
door the officers hear the sound of “people inside moving” and objects
“being moved.” Aha! Evidence may be about to be destroyed. Announcing
that they are coming in, the officers kick in the door and find not the
man they were looking for, but three other people, one of whom is
smoking marijuana. More marijuana, along with cocaine, is in plain view.
I don’t know about other people, but I have never found an uninvited encounter with the police to be a source of comfort.
The Fourth Amendment, of course, generally prohibits searches,
especially searches of the home, that have not been authorized by a
warrant. But like everything else, there are exceptions. The question
for the Supreme Court in a case decided on Monday was whether the police
behavior in this case, Kentucky v. King,
came within a recognized exception to the warrant requirement, the
“exigent circumstance” created by the likely imminent destruction of
criminal evidence.
The Supreme Court of Kentucky, hardly the most radical of courts in
hardly the blue-est of states, applied its understanding of the Fourth
Amendment and said no. If instead of pounding on the door, the state
court noted, the police had quietly gone to a magistrate and obtained a
search warrant, the people in the apartment would have had no reason to
start scurrying around destroying their valuable contraband. Because the
police themselves had prompted that response, foreseeably creating the
“exigent circumstance,” the court concluded that the state should not be
allowed to reap the benefit.
The United States Supreme Court reversed. The vote was 8 to 1. Hello?
Is anyone home? (And I don’t mean Justice Ruth Bader Ginsburg, the lone
dissenter.)
Fourth Amendment law is enormously complex (although not as complex
as it once was, now that the state wins almost all the cases) and I
make no pretense here of unpacking it wholesale. Nor do I argue that
this case was the most important on the court’s docket; even accepting
Justice Ginsburg’s conclusion that the police could easily have obtained
a warrant and that the majority had gratuitously used the case “to
contract the Fourth Amendment’s dominion,” the criminal justice system
has hardly been shaken to its core.
But in fact, its very ordinariness is what makes this decision worth
pondering. It’s worth stopping to consider the assumptions about human
nature that underlie not only this ruling but much of the court’s Fourth
Amendment jurisprudence. It’s worth wondering what planet the justices
— most of them, anyway, and not just the incumbents, but many of their
predecessors — have been living on when it comes to encounters
between the police and the rest of us.
What the court held, in an opinion by Justice Samuel A. Alito Jr.,
is that warrantless entry to prevent the destruction of evidence is
justified as long as the police “did not create the exigency by engaging
or threatening to engage in conduct that violates the Fourth
Amendment.”
Here, according to the court, all the police did was knock on the
door, something that is “no more than any private citizen might do.”
(But didn’t the police break the door down and barge in — hardly
something one would expect to follow a neighborly knock? Well, yes, but
that was after the “exigency” arose, after they heard the scurrying.)
According to Justice Alito, “Whether the person who knocks on the
door and requests the opportunity to speak is a police officer or a
private citizen, the occupant has no obligation to open the door or to
speak.” In other words, the occupants of the apartment not only had a
right to tell the police to go away, they almost had a constitutional
obligation to do so, because “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 exigent-circumstances
search that may ensue.”
“Only themselves to blame.” But wait, there’s more. It turns out that
the occupants of this apartment were not only woefully unsophisticated
about the Fourth Amendment, they were also ingrates: “Citizens who are
startled by an unexpected knock on the door or by the sight of unknown
persons in plain clothes on their doorstep may be relieved to learn that
these persons are police officers. Others may appreciate the
opportunity to make an informed decision about whether to answer the
door to the police.”
An opportunity to ask the officers to “hold it right there while I consult my attorney?” Let’s get real.
I don’t know about other people, but I have never found an uninvited
encounter with the police to be a source of comfort. Once, driving
through a quiet residential neighborhood in Washington on the way home
from a theater performance, my husband and I were unaccountably pulled
over by a police officer in a squad car. The officer asked my husband (a
lawyer) for his license and registration. Did he comply? Of course. It
occurred to neither of us to say: “Officer, I invoke the Fourth
Amendment and request that you articulate the suspicion that has caused
you to pull us over.” We had not been drinking or using drugs, we had
nothing to hide, and we had broken no law. But the incident was
nonetheless unnerving, and my blood pressure goes up as I recall it
years later.
The Supreme Court’s fantasy world of consensual and constitutionally
informed encounters with the police is nothing new. In a 1984 decision, Immigration and Naturalization Service v. Delgado,
a case arguably even more relevant today than it was before the
immigration crackdown of the later 1980’s and since, the court rejected a
Fourth Amendment challenge to immigration sweeps of factories and other
workplaces. There was no problem, the court held, because the workers
surrounded by immigration agents were not “seized.” They were free to
leave the premises, and those who chose to remain participated in
nothing more than a “classic consensual encounter.”
In 1991, the court upheld a police technique known as “working the
buses,” in which officers would board long-distance buses and request
passengers’ permission to conduct a pat-down search. The Florida Supreme
Court had found these searches to violate the Fourth Amendment because
passengers approached by uniformed police officers in the confines of a
bus would not feel “free to leave.” But in Florida v. Bostick,
the Supreme Court disagreed, suggesting that to the contrary, a
“reasonable person,” advised that he was free to say no, would indeed
“feel free to decline the officers’ requests or otherwise terminate the
encounter.”
Eleven years later, in United States v. Drayton, the court dispensed
with the premise that passengers needed to be informed of their right to
say no. That 5-to-4 decision reinstated the convictions of two men who,
submitting to a pat-down while on a Greyhound bus, were found to be
carrying cocaine taped to their thighs.
There was nothing intimidating about the circumstances of the encounter, Justice Anthony M. Kennedy wrote for the majority,
“no overwhelming show of force, no brandishing of weapons, no blocking
of exits, no threat, no command, not even an authoritative tone of
voice.” Justice Kennedy said it didn’t matter that the passengers were
not explicitly informed that they did not have to cooperate. People
typically go along with these searches, he asserted, “not because of
coercion but because the passengers know that their participation
enhances their own safety and the safety of those around them.”
Justice David H. Souter, in dissent, objected that the majority opinion had an “air of unreality.” Indeed.
But let’s look on the bright side. The Supreme Court tells us that if
we don’t know our constitutional rights, we have only ourselves to
blame. Knowledge of the Constitution, along with other basic elements of
civics, is at pathetically low levels: only a quarter of high school seniors
— people old enough to vote, or nearly so — demonstrated
proficiency in a recent national survey of students’ knowledge of how
government works.
So perhaps this week’s decision could be harnessed to provide the
motivation evidently missing from the classroom. Students could be
instructed that if the police come pounding on their door, and they
don’t know enough to stand on their Fourth Amendment rights, they have
only themselves to blame.