Pubdate: Mon, 23 May 2011
Source: Los Angeles Times (CA)
Page: A12, Lead Editorial
Copyright: 2011 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Referenced: The Supreme Court decision http://mapinc.org/url/djhLl3pF

KICKING IN THE CONSTITUTION

The Supreme Court failed to keep a lid on police excesses with its 
ruling in a Kentucky drug case.

One of the most important functions of the Supreme Court is to put 
legal limits on police excesses. But the court failed to fulfill that 
responsibility last week when it widened a loophole in the 
requirement that police obtain a warrant before searching a home.

The 8-1 decision came in the case of a search of an apartment in 
Kentucky by police who suspected illegal drugs were being destroyed. 
The police, who said they smelled marijuana near the apartment, had 
knocked loudly on the door and shouted, "This is the police." Then, 
after hearing noises they thought indicated the destruction of 
evidence, they broke down the door.

Police don't need a warrant to enter a residence when there are 
"exigent circumstances," such as imminent danger, the possibility 
that a suspect will escape or concern about the immediate destruction 
of evidence. But in this case, the police actually created the 
exigent circumstances that they then capitalized on to conduct the 
warrantless search.

According to Kentucky's Supreme Court, the exigent-circumstances 
exception didn't apply because the police should have foreseen that 
their conduct would lead the occupants of the apartment to destroy 
evidence. Overturning that finding, Justice Samuel A. Alito Jr. wrote 
for the court that as long as the police officers' behavior was 
lawful, the fact that it produced an exigent circumstance didn't 
violate the Constitution. That would be the case, Alito suggested, 
even if a police officer acted in bad faith in an attempt to evade 
the warrant requirement.

But as Justice Ruth Bader Ginsburg pointed out in her dissent, 
Alito's reasoning "arms the police with a way routinely to dishonor 
the 4th 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."

Ginsburg also dismissed the argument that entering the apartment in 
the Kentucky case was necessary to prevent the destruction of drug 
evidence. Quoting the majority opinion, she wrote that "persons in 
possession of valuable drugs are unlikely to destroy them unless they 
fear discovery by the police." Therefore, police can take the time to 
obtain a warrant.

Allowing police to create an exception to the warrant requirement 
violates the 4th Amendment. That is how the court should have ruled.  
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MAP posted-by: Richard Lake