Fourth Amendment No Longer a "Real" Right?

Several of the amendments in the Bill of Rights, notably the second and the tenth, are no longer treated by many folks as "real."  Just old TJ kidding around.

Over the last several years, I have worried that the Fourth Amendment is rapidly heading in the same direction.  This week has been a bad week.

First up, today's decision that if cops have some reason to think valuable evidence is being destroyed, they can bust down your door without a warrant.  Toilet flush?  Must be getting rid of drugs.  Can be seen in the window at the computer?  Must be deleting child porn.  Silence?  Must be destroying evidence really quietly.

Think I am exaggerating?  Here are the facts of the case:

It 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. They did not see which apartment he entered, but when they smelled marijuana smoke come from one of the apartments, they wrongly assumed he had gone into that one. They pounded on the door and called "Police. Police. Police," and heard the sounds of people moving.

At this, the officers announced they were coming in, and they broke down the door. They found Hollis King smoking marijuana, and put him under arrest. They also found powder cocaine. King was convicted of drug trafficking and sentenced to 11 years in prison.

Sounds of people moving in apartment = break the door down, no warrant needed.  This is just a joke, though I must also say the drug war has already gutted any number of Constitutional protections, so its not surprising to see yet another blow to liberty in the name of rounding up anyone who might be smoking a joint.  (more here)

The other case is perhaps even more egregious, and comes from Indiana, where the state Supreme Court decided that citizens must defer to agents of the state, even when those agents are violating the law.   In particular, if a cop wants to enter your house for no reason at all without a warrant, you can't resist.

"We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

Escalation of violence is a two-way street.  Why is the homeowner, the innocent party, the one who is made legally responsible for such escalation?  Why isn't it the agent of the state who is responsible for any such escalation?  And while a homeowner may have plenty of opportunities to protest illegal entry after the fact (though this is debatable in real life) I would argue that the police officer had plenty of opportunities before the fact to get a freaking warrant.

  • Keith Weiner

    This is one of those anarchist chestnuts. The cops only threaten innocent people anyways, etc.

    If we are to have proper law and order (and I do *NOT* mean a police state run by "compassionate conservatives" who seek to outlaw and punish conduct they deem "immoral" in their sole discretion), the cops have to have final control over the use of force. If a cop says "you are under arrest" there is no legitimate argument to made that he has to let you run away, or that anyone would have a right to use violence against the cop. Even if the cop is acting against the law.

    The proper response is to surrender peacefully and then have your day in court. If the laws give the cops the power to violate your rights, and a corrupt system protects corrupt cops, then the solution isn't to shoot cops are force them to chase you in a residential neighborhood at 120 mph.

  • Gil

    I was thinking along the lines of K. Weiner in that by such reasoning police officers couldn't barge in to save people being beaten or killed unless they have the permission of the homeowner. Tough luck if the homeowner is the one doing the crimes - go away and see if you get a search warrant.

  • Daublin

    "If we are to have proper law and order, the cops have to have final control over the use of force."

    If you want to have proper law and order, then the law must be the final arbiter. Not the police. The assumption behind letting the cops enter at will is that the courts will ding them if they misbehaved, which in this case they did not.

    If you live in such a neighborhood, where the cops are dicks and just doing as they will, then it becomes good for the society if more people fight back. This isn't an anarchist view, but an anti-totalitarian one. In a lawful society, everyone knows the law, and unlawful activity is opposed no matter who does it.

  • morganovich

    "We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

    this is how they always take rights away - by appealing to the common good, which is a terribly twisted for of reasoning.

    democracy does not create freedom. it is, in fact, one of the more pernicious and durable forms of tyranny. freedom comes from rights. absent inalienable rights, there is nothing to check the demos.

    we have slipped over into a european style democracy. and attitudes. (and note how prone to fascism they are...) you cannot take either word out of inalienable rights without giving up your freedom.

    the genius of our constitution is that rights derive from being human, not governmental fiat. this is not how we act anymore though. we have lost our way. consider "hate speech". sure, we can rightly abhor it, but if we criminalize it, then the right to free speech becomes contingent. it's no longer your right, but rather a privilege granted and limited by government, which makes it entirely subjective. before you know it, holocaust denial (a view i find silly yet still support the right of others to espouse if they must. i feel this way about keynsianism too...) has been made illegal. then you are literally under the rule of "thought police".

    however unpleasant we may find having to listen to those whose views differ from ours, the harm done by their speech pales in comparison the the harm done to a society by making the right to speak subject to governmental approval.

    this same argument can be applied to search and seizure. sure, giving police less latitude to catch criminals may result if fewer convictions, but allowing them to break down doors at their own discretion is the far more sinister scenario. arguments like "settle it at the station or in court" are ridiculous. it's a huge waste of time and sufficiently expensive and disruptive that many people cannot even avail themselves of such an option effectively. going to court is VERY expensive and time consuming. you will not be compensated for that. "waste months of your time and spend $50-100k to settle the issue" is hardly a costless scenario.

  • http://griffin3.com Griffin3

    Here's another isolated incident of an innocent man not having to worry about the police entering his home. Except now he's dead of 60 bullet wounds --> http://azstarnet.com/news/local/crime/article_b3177522-baa0-5c9e-9f0d-d3d7da6e9e4b.html

    This is in your neck of the woods, Warren. You have any moxie to get this to the attention of the national newsies? Because right now, 9 days after the event, as the sheriff's deputies dribble out bits like 'the homeowner did not actually fire any shots' and 'actually, no drugs were found at the victim's house, not what we implied earlier', the only news coverage on google is a pitiful three local articles.

  • morganovich

    "In a lawful society, everyone knows the law, and unlawful activity is opposed no matter who does it.

    precisely. the role of police is not to determine what your rights are. it is to protect them. giving the protector of your rights the ability to determine what they are is a remarkably fascist idea.

    you live subject to their fiat, not to law.

    the harm to society from police breaking down a door far exceeds that of a guy smoking a joint in his home. (which you could well argue does no harm at all)

  • http://griffin3.com Griffin3
  • http://griffin3.com Griffin3
  • john

    Arguments about the how injurious or inconvenient the 4th is to law enforcement are beside the point. The 4th exists (and for good reason since the framers had been through all this and knew what they were about). Ignoring it undermines the legitimacy of our government. There is an amendment process. In my view, it is simply not supportable to preach peacefully complying with and trusting in legal process when the highest law in the land is being set aside.

    OTOH, is the 4th incorporated? If not, sounds like a state issue and the real question then is what the IN state constitution says.

    (While I'm sure TJ was involved in this, wasn't it mostly Madison?)

  • Don

    Gil, to put it bluntly, bullshit. There have been exceptions in case law almost since the founding of the Union (and I'm quite certain predating that founding in UK jurisprudence) that allow ANYONE to take extraordinary measures if a reasonable person could conclude that somebody was in risk of life or limb.
    The meaning of the 4th Amendment is clear, and this ruling is equally clearly NOT conforming to either the letter or the spirit of Constitution. If it's appealed to the Federal level, it will be struck down, and justly so.
    More generally, it's appalling that people believe such things as you and Mr. Weiner. It shows an alarming amount of willful ignorance of your rights and the laws that are SUPPOSED to protect them. Please school yourself.
    And that Judge should be ousted from the bench, along with every other member of that court that voted for such an amazing abuse of the public trust. My God, I cannot believe that they could have even written those words without saying, "wait a minute, something's not right here...".

  • Mark

    Warrants are rubber stamped any more anyway. It amounts to about the same thing.

  • marco73

    Griffin3, the story about the Marine validates a simple point: if a combat veteran cannot determine, in the heat of the SWAT team serving a warrant, who is a threat and who is not, then what chance do mere mortals?
    How many bullets is enough: 60 hits from 71 shots? The Marine smartly placed his family in a secure area before he opened his door, or there would have been more victims.
    The most despicable part is the authorities tried smear the dead man by portraying the raid as finding drugs in the house, but they've now had to backtrack on that.

  • Ted Rado

    The steady erosion of individual liberty and the growth of government have been going on for a long time. This is just another step in that process. One can argue the merits of any specific government intrusion into our lives, but the collective effect is terrible. We are heading toward an elected dictatorship.

    Those who are in favor of the current overreach of the government because it agrees with their personal views need to bear in mind that after the next election, government moves may be opposite their views. You can't argue that only the overreach that you personally agree with is OK.

    Better, the USG should stay out of everyone's hair as much as possible, and let local authorities or (best) the individual deal with it. The country got along very well before HUGE government arrived. In fact, much better (see current deficit, overseas adventures, social engineering, etc.).

  • Vitaeus

    So rather than have the police follow the Constitution before they violate our rights, we get to spend money, time and possibly have our heirs SUE the police for their violation?

  • Hunt Johnsen

    Vitaeus said

    "So rather than have the police follow the Constitution before they violate our rights, we get to spend money, time and possibly have our heirs SUE the police for their violation?"

    Exactly. Which eventually may well lead to the events described in "Absolved", a novel in progress. Well worth a read, along with "Unintended Consequences" if you can find a copy.

    http://waronguns.blogspot.com/2008/07/absolved-banner-connector.html

  • http://www.ianrandom.com Ian Random

    I agree SWAT teams should record their actions and cop cars should also have cameras.

  • ed

    Are you suggesting that Thomas Jefferson wrote the Bill of Rights? Or did you slip and type "TJ" when you meant "JM?"

  • Gordon

    Althouse had this about the Indiana case. If there really was someone else in the house urging the police to enter, and it was a domestic violence call...

    "In this case, the officer had come to the home in response to a domestic violence call.... The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him."

  • Dr. T

    Much of the Constitution is in tatters. The Fourth Amendment is just the one that's in the news. What happened to federalism and state sovereignty? Long gone. What about checks and balances? Lost to multiple Supreme Court rulings that supported unconstitutional power grabs by Congress or the President. What about the need for Congress to declare war? We've fought in Korea, Vietnam (and Laos and Cambodia), Nicaragua, Panama, El Salvador, Grenada, Iraq, Bosnia, Serbia, Somalia, Afghanistan, Iraq again, and Libya without declarations of war. We've lost ground on nearly all of the Bill of Rights. The only one that's intact is the one that prevents the government from quartering soldiers in your home.

  • Vitaeus

    umm, they can enter the home for any illegal act, so the no quartering is gone as well.

    Paraphrase: "They came for the man across the street, then they came for my neighbor, when they came for me there was no one left to protest."

  • Vitaeus
  • http://www.rashynullplanet.com/blog/ Matt

    MADD zealots have been gnawing at the 4th amendment for decades:
    http://www.duiblog.com/2005/05/09/the-dui-exception-to-the-constitution/

    And Spooner was right, but he forgot to mention the part where the "protectors" follow their victims right into their homes, and that in addition to stealing money, the "protectors" also violently and sometimes fatally enforce compliance to other peoples' stupid arbitrary preferences:

    "The fact is that the government, like a highwayman, says to a man: Your money, or your life. And many, if not most, taxes are paid under the compulsion of that threat.

    "The government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.

    "The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a “protector,” and that he takes men’s money against their will, merely to enable him to “protect” those infatuated travelers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave."
    -- Lysander Spooner, The Constitution of No Authority, http://www.hiscovenantministries.org/mans_law/no_authority_3.htm

  • http://www.rashynullplanet.com/blog/ Matt

    "I agree SWAT teams should record their actions and cop cars should also have cameras."

    *Every* government employee who carries a gun should have a camera stitched to his forehead streaming and recording audio, video, and GPS coordinates every nano-second he's on the clock.

  • IgotBupkis, President, United Anarchist Society

    >> If you live in such a neighborhood, where the cops are dicks and just doing as they will, then it becomes good for the society if more people fight back. This isn’t an anarchist view, but an anti-totalitarian one. In a lawful society, everyone knows the law, and unlawful activity is opposed no matter who does it.

    1) This, at its heart, is why the concept of Jury Nullification needs to be spread far and wide. The State has done a particularly good and thoroughly pernicious job of making people unaware of it, and misinforming them as to the purposes behind it wherever possible.

    2) "Better Police, for a Better Police State"

    3) I refer you to the Heinlein:
    "A Monarch's neck should always have a noose about it... It keeps him upright."
    - Robert Heinlein, 'The Cat Who Walks Through Walls' -

    These people are slipping the noose. And it's making them more and more arrogant about where the power lies. Sooner or later, it IS going to be needful to remind them. And it's not going to be either pleasant or fun. The only thing more scary is a truly Fascist America. Keep your guns, folks. Don't let them make you surrender them peaceably.

  • IgotBupkis, President, United Anarchist Society

    >> however unpleasant we may find having to listen to those whose views differ from ours, the harm done by their speech pales in comparison the the harm done to a society by making the right to speak subject to governmental approval.

    Indeed...

    "The only social order in which freedom of speech is secure is the one in
    which it is secure for everyone... and, as those who call for censorship
    in the name of the oppressed ought to recognize, it is never the oppressed
    who determine the bounds of the censorship. Their power is limited to
    legitimizing the idea of censorship."

    - Aryeh Neier -

    "A function of free speech under our system of government is to INVITE
    DISPUTE
    . It may indeed best serve its high purposes when it induces a
    condition of unrest, creates dissatisfaction with conditions as they are,
    or even stirs people to anger. Speech is often provocative and
    challenging. It may strike at prejudices and preconceptions and have
    profound unsettling effects as it presses for acceptance of an idea."

    - Supreme Court Justice William O. Douglas -

    (NOTE: Think slavery, as well as racial and sexual equality)

    "...An hour's perusal of our national charter makes it hard to understand
    what the argle-bargle is about. The First Amendment forbids any law
    'abridging the freedom of speech.' It doesn't say 'except for commercials on
    children's television' or 'unless somebody says 'cunt' in a rap song or
    'chick' on a college campus."

    - P.J. O'Rourke, 'Parliament of Whores' -

    "If there is time to expose through discussion the falsehoods and the
    fallacies, to avert the evil by the processes of education, the remedy to be
    applied is more speech, not enforced silence."

    - U.S. Supreme Court Justice Louis Brandeis -

    "Restriction of free thought and free speech is the most dangerous of all
    subversions. It is the one un-American act that could easily defeat us all."

    - Supreme Court Justice William O. Douglas -

  • Gil

    I beg to differ - the essence of the 4th Amendment is that a police officer can't enter private premises without a search warrant. Libertarians ought to be the ones who would have no exceptions - either they own the property or the government effectively does because it can override the private person and since Libertarians believe government should never have power over private individuals then there ought to be no "reasonable exceptions" to the 4th Amendment - either you have a search warrant or you get out. So when a police officer who detects the crime of marijuana smoking is taking place and enters a property and makes an arrest it's a violation of the 4th Amendment to Libertarians. So why should there be exceptions? If the private owner is committing a crime on his private property then it's his or her business until the police can get a search warrant regardless of what the crime. It's pretty much the same as crimes happening other nations - it's there problem not ours.

  • IgotBupkis, President, United Anarchist Society

    >> What about the need for Congress to declare war? We’ve fought in Korea, Vietnam (and Laos and Cambodia), Nicaragua, Panama, El Salvador, Grenada, Iraq, Bosnia, Serbia, Somalia, Afghanistan, Iraq again, and Libya without declarations of war.

    Uh, the point isn't unreasonable, Dr. T., but, in the highlighted cases, I'm pretty sure that Congress signed off on those.

    Let's see:
    Iraq: "The Senate supported the military actions in a 52-47 vote." Check.
    Afghanistan: "President George W. Bush was authorized by Congress on September 14, 2001, by legislation titled Authorization for Use of Military Force Against Terrorists which was passed and signed on September 18, 2001 by both President Bush and Congress." Check.
    Iraq: "The Senate voted to approve the Joint Resolution with the support of large bipartisan majorities on October 11, 2002, providing the Bush administration with a legal basis for the U.S. invasion under U.S. law." Check.

    You can argue all you want to about "Congress being lied to", and all sorts of other stuff, but the simple fact is: ALL THREE of those wars WERE expressly authorized by Congress in full observance of Constitutional Authority.

    So, in the future, I suggest you remove these three allegations from your otherwise not unreasonable maunderings.

  • IgotBupkis, President, United Anarchist Society

    Gil:
    1) who, precisely, are you responding to? Not clear.

    2) There is, I believe, a long history of the notion of "immediate danger" which does override some otherwise inviolable rights. This is and has been applied to a number of cases, such as free speech (Yelling "FIRE!!" in a crowded theater) and if you hear screaming and shouting and noise indicating the possibility of severe bodily harm being committed.

    3) The fuzzy stuff is still there. Do I have the right to be walking through your neighborhood shouting racist epithets using a heavily amplified bullhorn at 3am in the morning? An absolutist interpretation of "free speech" would say "Yes!". I suspect even the most ardent libertarians would, or I'd argue should as rational human beings, have a problem with that.

    Once you grasp the full implications of Gödel's Completeness Theorem on ALL human rule systems, you realize there is no such thing as an absolute rule.

    There MUST be exceptions. If MATH cannot create systems without exceptions, then human language, with its messy interpretations, loose meanings, and double entendres, is certainly going to be much more prone to them. This is why we need lawyers, much as we dislike them.

    "Well, for someone who has nothing nice to say about lawyers, you certainly have enough of them around."
    "They're like nuclear warheads. They have theirs, so I have mine. Once you use 'em, they fuck up everything."

    - "Other People's Money" -

    You can cite the most obviously inviolable human behavioral rule you can think of, and I can find you an exception -- admittedly, perhaps a totally pathological one expressly designed to find exception in that rule and remarkably improbable in likelihood of occurrence -- but you will agree that it IS an exception.

  • John O.

    -Gil:

    Doing drugs is most often a victimless crime, and its actually become an excuse for the police to testify they "smelled drugs". The problem is simply that law enforcement continue to overstep their boundaries. There is considerable documented evidence of police across the nation "testi-lying" to obtain convictions that without their false testimony would have been worthless.

    Those who have police (and even political) authority should be held to very high standards for grievous mistakes and to outright corruption, as they hold enormous authority over us. There should never be cases of mistaken identity or wrong-house raids. There simply cannot be any excuses from anybody involved as everybody involved has the opportunity to do the right thing. If an officer is suspended for questioning an unlawful warrant (one obtained on false pretenses), he himself absolved him from the unlawful action of the others.

    Understanding and learning about the Constitution is more than just reading what it says and accepting what the SCotUS justices rule. No it requires understanding things far beyond the mere words but the underlying choice of words. Every word in the Constitution is deliberate and has a purpose. I don't think anybody is ever truly capable of "understanding" the Constitution as it was written by a group of men many, many generations ago. But we can definitely try to understand what was the real intended structure of our system of government. These three links are the most important pieces of Constitutional construction I've ever read and hold them as my Standards:
    http://constitution.org/consprin.htm
    http://constitution.org/cons/prin_cons.htm
    http://constitution.org/powright.htm

    -- John O.

  • me

    It's about the money. Make the arrest at all costs. Then the court gets money and the lawyers. The cops budget is maintained or increased because arrests mean a high crime rate.

  • me

    @morganovich

    Coming from a European style democracy, the police would never dream of violating civil liberties like they do here.

    (oh, and for the record, I am the *other* me ;)

  • Erik Carlseen

    So if the police can only enter a home if they witness an illegal act, if they see themselves entering illegally I suppose they're OK.

  • caseyboy

    Our Founding Fathers were right about quite a few things. Among the self-evident truths was the necessity of that the people have the right to bear arms.

    "The people have a right to keep and bear arms."
    Patrick Henry

    "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!"
    Benjamin Franklin

    "A free people ought to be armed”
    George Washington

    "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good"
    George Washington

    “Americans have the right and advantage of being armed, unlike the people of other countries, whose leaders are afraid to trust them with arms."
    James Madison

    "No free man shall ever be debarred the use of arms."
    Thomas Jefferson

    Man, we have fallen a far way from original intent.

  • NormD

    The case was decided 8-1. It has nothing to do with the Indiana case.

    Here is much better analysis of what actually happened.

    http://pajamasmedia.com/tatler/2011/05/18/the-supreme-court-decision-on-warrantless-searches-was-a-good-one/#more-21273

  • IgotBupkis, President, United Anarchist Society

    Norm, I thoroughly disagree.

    As I post there:

    This begs them to have "reasonable confusion", which must then be proven as manufactured by the defendant. It also encourages corrupt cops to plant evidence of more serious crimes when they do enter due to "exigent circumstances" in error.

    The simple fact is -- they had no reason to enter THAT apartment. Allowing their error to provide them with a conviction (clearly, they don't have any reason to "return the evidence" to the error victim, so they DO get to get any illegal contraband -- money, guns, drugs -- off the street) encourages cops to abuse the system one way or another.

    Further, the cops now KNOW the individual is a "criminal type" in a way that nominally matters. They CAN clearly focus on those individuals for later investigation.

    So this decision is WRONG. It doesn't limit the "benefit of errors" to cops, and thus discourage errors and encourage proper police procedural action.

  • IgotBupkis, President, United Anarchist Society

    The fact is, this encourages the cops to grab up some minor thug on reasonable charges, let him loose nearby their actual target with the instruction to break in and go through X's place while they are giving chase. They'll let him (the minor thug) get away after that.

    After that, it's up to the victim to "prove" to the court that the cops did that. Good luck with THAT happening.