The New York Times
Standing Up to
Unwarranted Police Power
New York Times, May
What’s wrong with the police kicking
in the door of an apartment after they smell marijuana drifting from it, if they
knock hard, announce who they are and then hear what sounds like evidence being
Some lower courts have said the answer is pretty much everything, because the
police themselves created the pretext for barging in. But the Supreme
Court ruled last week that such a warrantless search does not necessarily
violate the Fourth Amendment, according to a vague new standard for determining
whether the police violated the protection against unreasonable search, or
threatened to do so.
They sent the case back to the Kentucky Supreme Court, which is going to have a
hard time understanding the new standard — and in any case never resolved
whether any evidence was, in fact, destroyed.
Ruth Bader Ginsburg, the lone dissenter in this strange decision, wisely warned
that the new rule gave the police “a way routinely to dishonor” the
constitutional requirement that they obtain a warrant, by manufacturing an
exception to it. There are already exceptions for “exigent circumstances,”
emergencies like an imminent risk of death or a danger evidence will be
destroyed. But the urgency usually exists when the police arrive at the
scene. In this case, the police caused the exigent circumstances
The new rule undermines the rule of law by shifting the power to approve a
forced entry from a magistrate to the police. It empowers the police to
decide whether circumstances allow them to kick in the door.
The majority opinion by Justice Samuel Alito Jr. says that the “exigent
circumstances” rule applies even though the police triggered the danger that
evidence would be destroyed. Apartment-dwellers with nothing to hide, the
justice said, are at fault if they don’t take advantage of their right to refuse
entry when the police knock. (As if this would be realistic even in
Justice Alito’s neighborhood.)
Justice Ginsburg asks, “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?”
Her dissent is a reminder of the enduring value of privacy, as well as of her
value to American law. It is unsettling that she is the only justice to
insist that the law hold the line on its definition of exigent circumstances so
that our “officers are under the law,” as Justice Robert Jackson once put it.
But it is reassuring to have her stand up for the Fourth Amendment and to police
power that is literally and constitutionally unwarranted.