U.S. Supreme Court, 8 to 1, Suspends Fourth Amendment

June 4, 2011 • Commentary
This article appeared on Cato​.org on June 4, 2011.

When I speak to classes, from fifth‐​graders to college students, about the Constitution, I tell them stories of how we acquired these fundamental individual liberties, and what it continually takes to keep them.

One of the stories that always engages these listeners begins with a young lawyer, John Adams (later to become our second president), sitting in back of a King George III courtroom in Boston. Before judges in white wigs and scarlet robes, a Massachusetts lawyer, James Otis, was arguing for nearly five hours against British customs officers and soldiers breaking into colonists’ homes and offices with warrants (“writs of assistance”) they wrote themselves without going to a judge.

At home, in his notebook, Adams, describing Otis as “a flame of fire,” declared on that day “American independence was then and there born … Every man of … (a) crowded audience appeared … to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain.” (Three Men of Boston, John R. Galvin, Brassey’s).

On May 16, 2011, in these United States, eight justices, apparently unaware of the deep roots the Fourth Amendment has in our history, ruled in Kentucky v. King — as warned in the interpretation of the lone dissenter, Ruth Bader Ginsburg — to suspend the Fourth Amendment:

“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?”

This case began in Lexington, Ky., when police, aware of an ongoing drug deal, followed the suspect to an apartment complex. They went to the wrong apartment. But outside that apartment, they smelled marijuana, knocked hard, announced who they were and at that point heard noises coming from inside the apartment. What could these sounds be caused by? Evidence being destroyed, the police believed, but without actual proof.

In view of the marijuana smell and what they suspected, they could have easily obtained a warrant. Judges are very accommodating in this context. But the police roared they were going in and knocked down the door.

They did see drugs, but were the noises before breaking in evidence of movements to hide the drugs? After the lower courts in Kentucky upheld the warrantless entry and search, the state’s Supreme Court reversed that decision on Fourth Amendment grounds that a warrant should have been obtained.

At stake — as later in the U.S. Supreme Court — was whether “exigent circumstances” lawfully justified the police short‐​circuiting the Fourth Amendment without a warrant. “Exigent circumstances” exist when a suspect inside the apartment attempts to flee or evidence is being destroyed.

No one was trying to escape, and the police just “believed” evidence was being hidden. Speaking for seven other justices, Samuel Alito, delivering the High Court’s decision, reversed the Kentucky Supreme Court, saying:

“There is no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment.”

Aha! But what if the police themselves created the “exigent circumstances” before going in?

Here comes dissenter Justice Ginsburg: “The urgency (exigent circumstances) must exist, I would rule, when the police (first) come on the scene … (and) prompted by their own conduct” instead of first getting a warrant.

Did just the smell of marijuana and their collective assumption give them a lawful right to ignore the Fourth Amendment and break down the door instead of first getting a warrant from a judge?

The Kentucky Supreme Court came to a decision strongly opposite to Justice Alito, who overruled its finding. Said that court, as Adam Liptak reported in the May 17 New York Times: “Any risk of drugs being destroyed was the result of the decision by the police to knock and announce themselves rather than obtain a warrant.”

If James Otis were still with us, he’d be telling Alito exactly that.

What struck me as arrogantly presumptuous in Alito’s ruling was his blaming the apartment’s occupants for not knowing their constitutional rights. After the knock on the door, he said, “the occupant has no obligation to open the door.” He could, added Alito, tell the warrantless cops to go away.

Dig this from Alito: “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.”

How many Americans know their constitutional rights or can even say what’s in the Fourth Amendment?

During the Nixon administration, professed constitutionalists stole FBI records of warrantless Fourth Amendment violations on alleged communist students and professors from an FBI office in Pennsylvania.

Copies were sent to The Washington Post and to me at The Village Voice, and we both published excerpts. Then‐​Attorney General John Mitchell had threatened dire punishment if they were published. I asked the FBI agents who came to my door, looking for what I had reported, to show me their warrant. They had none and left. If I hadn’t known my rights, I might eventually have been in prison. The FBI didn’t return with a warrant.

John Adams would have been outraged by the May 16 Supreme Court decision in Kentucky v. King, but it should spur U.S. citizens to actually read the Constitution’s Bill of Rights and keep a copy in their pockets. That’s what Justice Hugo Black advised as he told Americans: “We must not be afraid to be free!”

But do arm yourselves with the Fourth Amendment, and keep exercising your First Amendment rights! Alito and his seven colleagues should at least be embarrassed by the specter of James Otis, but I doubt it.

And where was most of the press on this story?

How many have read the Constitution lately?

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