Don't flush if the cops come E-mail
Written by Mark Nichols   

Say what you want about the Roberts' Supreme Court but don't call them "soft on crime." In a stunning decision, The Supreme Court in an 8-1 decision has said that officers who loudly knock on a door and then hear sounds suggesting evidence is being destroyed may break down the door and enter without a search warrant. Needless to say, the ruling radically alters the landscape in terms of past patterns and practices regarding law enforcement procedures and the Fourth Amendment. Residents who "attempt to destroy evidence have only themselves to blame" when police burst in, said Justice Samuel A. Alito Jr. who was writing for the overwhelming majority.


In her dissent, Justice Ruth Bader Ginsburg said she feared the ruling in a Kentucky case will give police an easy way to ignore the 4th Amendment. The ruling has stunned the law enforcement community. The Roberts' court has been more supportive of police than previous decisions.

But the recent decision in the Kentucky case is so "pro-law enforcement," that even some police officers and officials, particularly those with libertarian views, are wondering if the court hasn't opened Pandora's box so to speak.

For centuries, courts, including the U.S. Supreme Court, have ruled that police usually may not enter a home unless they have a search warrant or the permission of the owner. It goes all the way back to the magna Carta.

There are exceptions of course. One exception to that rule involves an emergency, such as screams coming from a house. In addition, police may also pursue a fleeing suspect who enters a residence.

In the Kentucky case police were doing just that as they chased a suspected cocaine dealer into an apartment building. At some point the officers smelled marijuana coming from one of the residences and incorrectly assumed that the suspect they were after was inside.

But the court decided that even though the police entered the wrong residence, the fact that they believed that evidence was being destroyed justified kicking in the door immediately after announcing their presence. The case that changed everything began when police in Lexington, Ky., were following a suspect who allegedly had sold crack cocaine to an informer and then walked into an apartment building.

The officers did not see which apartment he entered. When they smelled marijuana smoke come from one of the apartments, they wrongly assumed he had gone into that residence. They pounded on the door and announced their presence. Officers say they then heard "the sounds of people moving."

Officers then broke the door down and found one Hollis King smoking marijuana, and placed him under arrest. They also found powder cocaine. King was convicted of drug trafficking and sentenced to 11 years in prison. But the Kentucky Supreme Court overturned his conviction and ruled the apartment break-in violated his 4th Amendment right against "unreasonable searches and seizures."

According to the Kentucky Supreme Court, the exigent circumstances required to bypass Fourth Amendment protections were the result of the officers' actions- not a cry for help or a reasonable belief that a life was in danger. The Supreme Court heard an appeal from state prosecutors and reversed the ruling in Kentucky vs. King.

Alito said the police conduct in this case "was entirely lawful," and they were justified in breaking down the door to prevent the destruction of the evidence. "When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen may do," he wrote.

In other words, the whole thing might have been avoided if King had not made a sound after police announced themselves. "A resident need not respond." Alito said.  But the sounds of people moving and "perhaps toilets being flushed could justify" police entering without a warrant, he added.

"Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing down a toilet," Alito wrote. Ginsburg was the only Justice that saw a problem.

The ruling "arms the police with a way routinely to dishonor the 4th Amendment's warrant requirement in drug cases." She said the police did not face a "genuine emergency" and should not have been allowed to enter the apartment without a warrant.

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