Today the Supreme Court heard oral argument in Kentucky v. King, an exigent circumstances case. The transcript is here. Here are a few thoughts on the oral argument, with some concluding thoughts at the end, at least based on the transcript (I’m visiting at Penn this semester, so unfortunately I couldn’t make the argument in person):
1) Pages 4-9: Counsel for Kentucky is assuming that the exigent circumstances doctrine requires probable cause. Some lower courts have said this, and I would guess the Kentucky courts are among them. But the U.S. Supreme Court has never said that, and the Justices seem puzzled by the fact that Counsel for Kentucky keeps talking about the role of probable cause. Put another way, he’s assuming the Justices think that’s required by exigent circumstances, but the Justices don’t realize his assumption. It’s causing a lot of confusion.
2) Page 19-20 and Page 34: Justice Scalia seems to think it would be extremely strange for someone to not open the door, but to instead walk to another room and close the door, when someone knocks at the door at 10pm. Also, in his view, if you’re smoking pot in your apartment at night and the police knock and ask that you open the door, the smart thing to do is to politely open the door, talk to the police, and then tell them that you decline to consent to a search. Hmm, I don’t think that’s the advice that most defense lawyers would give.
3) Page 25-27: There’s a discussion about adding a “bad faith” prong to the test. In my view, the problem with a “bad faith” test is that it’s hard to know what it means in this setting. If the test is subjective bad faith, it will hard to get to the truth in a suppression hearing; if the test if objective good faith, it’s unclear what that means in the exigent circumstances setting.
4) Page 42-43: Justice Scalia seems to want to overturn the Kentucky Supreme Court’s test, but he’s not sure of what to do with the facts here. If he has control of this case, it sounds like they might end up reversing, announcing a test, and remanding for more facts of what exactly happened at the scene. Interestingly, Alito and Scalia are both interested in this question of whether the cops demanded entry, as the trial court found, and what the evidence was for that. It’s one of the odd things about this case, I think: The case is different if the police demanded entry, and yet the parties dispute whether the police demanded entry. Notably, they continue to dispute it at oral argument.
5) Page 46: Scalia asks, “Do you have any doubt that it’s unlawful for a police officer to threaten to burst into a home?” Counself for King replies, “No, your honor.” But I have lots of doubts about it, actually. To be sure, it’s terrible to say such a thing if the officer doesn’t actually have a legal right to burst in. It’s quite unfriendly, and misleading, too. But what law does a police officer break if he threatens to burst into a home? It’s not a search or seizure, so it doesn’t violate the Fourth Amendment. What law does that violate? Does anyone know? Is Scalia thinking that there might be a relevant state law on threatening to damage property that might be implicated? I don’t know.
6) Page 52: Ah, finally my point 5 above comes out. At this stage, Scalia asks counsel for Kentucky if the threat to burst in would be unlawful, and counsel for Kentucky responds — correctly, I think — that it would not be. Scalia seems pretty puzzled, as this was not the answer he was expecting. (“It would not? Oh. Maybe we have to come up with an unreasonable test, then.”)
7) Some concluding thoughts: This was a pretty messy argument, I think. Kentucky and the United States are proposing a test that any lawful conduct is permitted. But as far as I can tell from the argument, the Justices don’t actually know what that means, as they don’t know what police conduct is lawful. During most of the argument, they seemed to assume that any thing really slimy or tricky must be unlawful. But at the end, in the rebuttal, they started to realize that this wasn’t the case. That’s one of the odd parts of the briefing in this case, I think: Neither side’s briefs actually gives examples of what would be included or excluded under the lawfulness test that the United States and Kentucky are proposing. No one has explained what sources of law must be consulted to know what is “lawful,” or how those sources would apply to routine investigative practices beyond the routine knock-and-talk.
Oh, and to repeat my full disclosure from my earlier post– counsel for King asked for my advice on this case, and I provided some advice on a pro bono basis. All opinions in this post remain my own.
Guy says:
5) Page 46: Scalia asks, “Do you have any doubt that it’s unlawful for a police officer to threaten to burst into a home?” Counself for King replies, “No, your honor.” But I have lots of doubts about it, actually. To be sure, it’s terrible to say such a thing if the officer doesn’t actually have a legal right to burst in. It’s quite unfriendly, and misleading, too. But what law does a police officer break if he threatens to burst into a home? It’s not a search or seizure, so it doesn’t violate the Fourth Amendment. What law does that violate? Does anyone know? Is Scalia thinking that there might be a relevant state law on threatening to damage property that might be implicated? I don’t know.
Substantive Due Process? I doubt that’s what Scalia was thinking of. If consent to enter were given in response to such a threat, it would probably not actually be consent. But I haven’t followed the case, so I have no idea if that’s relevant.
January 12, 2011, 5:17 pmSoronel Haetir says:
I guess the problem I have with officeres threatening to break in (even if they subjectively won’t) is that people are basically supposed to be able to take police at face value. It also then protects officers who claim that they weren’t going to break in when most other areas of law that touch on the same concerns ask what would the objective circumstances be. Letting the officer later claim that they weren’t actually going to break in, despite announcing that they would, just gives too much cover.
January 12, 2011, 5:21 pmanon says:
I have not looked at the briefs or the question presented, but from the arguments it sounded like counsel for King was not addressing the question presented. Everyone except for her was there to talk about whether exigent circumstances could be created by a simple knock and talk. At one point the CJ suggested that they were OK with what she wanted to talk about, but it might be more helpful if she talked about the question presented (I am obviously paraphrasing).
January 12, 2011, 5:34 pmCrazyTrain says:
I don’t doubt your analysis is correct — indeed, how can a statement be a Fourth Amendment search or seizure? However, I have an honest question for you: If the response to such a threat is “OK, don’t bust down the door, you can come in,” is that valid consent for a search? I know what I think the answer should be (that ain’t consent and thus the search was illegal unless there was probable cause or some other reason that validates the search), but I am curious what you think the answer is based on current law.
January 12, 2011, 6:26 pmSam Baker says:
Counsel for Kentucky is assuming that the exigent circumstances doctrine requires probable cause. Some lower courts have said this, and I would guess the Kentucky courts are among them. But the U.S. Supreme Court has never said that, and the Justices seem puzzled by the fact that Counsel for Kentucky keeps talking about the role of probable cause.
The Fourth Amendment requires probable cause. An exception to the warrant requirement does not automatically excuse the probable cause requirement, unless and until the Supreme Court says it does. Because the burden is on the Supreme Court to dispense with this requirement in the context of the exigency exception, and the burden is not on the Supreme Court to affirmatively acknowledge the probable cause requirement in order for it to apply in any situation where it has not been clearly and expressly excused.
Importantly, for the situation of “police created exigency,” probable cause is a powerful way out of the conundrum. It is difficult to trick citizens into revealing probable cause. OTOH, it is easy to trick citizens into “moving around in a manner consistent with the destruction of evidence.” If “probable cause” remains a requirement then police-created-exigency exception will not be used as an intentional gambit to avoid the warrant requirement nearly as much. I mean: lets say the system really is: (i) if the detached magistrate is the decider then we have to be pretty sure; but (ii) if the constable is the decider then he does have to be nearly as sure. That makes no sense at all. That is like the opposite of jurisprudential common sense.
January 12, 2011, 6:34 pmOrin Kerr says:
CrazyTrain,
No — NC v. Butler is clear on that.
It is lawful to demand entry because it’s not a search or seizure. The police are allowed to demand all they want, make noise, bang on drums, etc — the only law I can think of that could be implicated is maybe a local noise ordinance. But if they actually obtain entry, the police cannot rely on consent to justify the entry because the consent is obtained coercively. See NC v. Butler.
To my mind, that’s part of the confusion around this case. It is lawful to demand entry; it’s just not lawful to rely on consent forced by the demand. So King’s test is *not* a lawfulness test, as demanding entry is lawful.
January 12, 2011, 6:37 pmPreston Earle says:
Orin Kerr wrote: “Also, in his view, if you’re smoking pot in your apartment at night and the police knock and ask that you open the door, the smart thing to do is to politely open the door, talk to the police, and then tell them that you decline to consent to a search. Hmm, I don’t think that’s the advice that most defense lawyers would give.”
January 12, 2011, 6:37 pm——————-
Isn’t that exactly the advice the defense attorney is giving in the this film. One of his ten rules is to practice politely saying “I don’t consent to searches” and say that if asked to allow a search, (or even let an uninvited police officer into your house). Does the fact that a person is smoking pot trump his right not to have his house searched without a warrant?
Owen H. says:
What advice would they offer? Not open the door at all and speak through it? Open the door, but step outside and close it behind you?
January 12, 2011, 6:40 pmOrin Kerr says:
Actually, here’s the question for those who would adopt a lawfulness test: If the police are in front of the door, what can the police do that is *not* lawful? I suppose it would be unlawful for the officer to pull out his blackberry and go on an internet gambling site to place some bets, as it would violate state gambling laws. But I can’t think of anything the officers could say that would be unlawful.
January 12, 2011, 6:41 pmOwen H. says:
It seems to me that the concept of allowing “sounds consistent with destruction of evidence” to create exigency is little more than a blanket approval for entry in any and all cases.
January 12, 2011, 6:43 pmOrin Kerr says:
Sam Baker:
No, this is wrong. The Fourth Amendment requires a warrant, not probable cause. Most exceptions to the warrant requirement do not require probable cause: Consent, special needs, border search, search incident to arresrt, etc — none require probable cause. So there is no rule that exceptions to the warrant requirement require probable cause unless and until the Supreme Court declares to the contrary.
January 12, 2011, 6:45 pmBel says:
But what law does a police officer break if he threatens to burst into a home? The same a common citizen would violate?
January 12, 2011, 6:45 pmAre no laws against unlawful entry on private premises?
To threaten violence is a felony?
Sam Baker says:
To ask a pointed question: if we presume that the existence of the exigency requirement wipes out the probable cause requirement, then shouldn’t we also presume that the existence of the exigency requirement wipes out the reasonableness requirement?
January 12, 2011, 6:45 pmOrin Kerr says:
Oh, and I should be clear that if the Supreme Court wants to announce a probable cause requirement for exigent circumstances, that is one thing. That’s an issue we can discuss. But it is not found in current Supreme Court doctrine, although some lower courts have adopted it.
January 12, 2011, 6:46 pmDilan Esper says:
How about “if you don’t open the door right now, we are going to shoot your wife”?
January 12, 2011, 6:49 pmOrin Kerr says:
Sam,
The Supreme Court has never established a probable cause requirement for exigent circumstances. Thus, hypoethetical questions about the conditions of “wiping out” this “requirement” are misplaced.
January 12, 2011, 6:49 pmSam Baker says:
No, this is wrong. The Fourth Amendment requires a warrant, not probable cause. Most exceptions to the warrant requirement do not require probable cause: Consent, special needs, border search, search incident to arresrt, etc — none require probable cause. So there is no rule that exceptions to the warrant requirement require probable cause unless and until the Supreme Court declares to the contrary.
No, the probable cause requirement was wiped out in those exceptions because the Supreme Court affirmatively said so, and not merely because the warrant requirement was wiped out. That is the point, the Supreme Court needs to say so first or else the probable cause requirement is still there.
January 12, 2011, 6:50 pmOrin Kerr says:
Dilan,
It doesn’t violate the Fourth Amendment: Speaking is neither a search nor a seizure. It might violate a state threat statute, I suppose. I would be tickled if the Supreme Court said that the Fourth Amendmnet test adopted state law so soon after Virginia v. Moore, however.
January 12, 2011, 6:50 pmSam Baker says:
Has the Supreme Court established a reasonableness requirement for exigent circumstances situations?
January 12, 2011, 6:53 pmOrin Kerr says:
Sam Baker:
Can you priovide the language in which the Supreme Court estbalished the probable cause requirement, and can you then provide the language in which the Court “affirmatively wiped out” the probable cause requirement for (a) consent searches (b) the border search (c) special needs searches — public schools, government employment (d) search incident to arrest?
January 12, 2011, 6:55 pmOrin Kerr says:
Sam Baker:
Yes, they repeat that requirement in every exigent circumstance case. See, e.g., Brigham City, v. Stuart, 547 U.S. 398 (2006).
January 12, 2011, 6:58 pmCrazyTrain says:
They couldn’t make a true threat of imminent violence to the homeowner with specific intent that the homeowner take it as a threat; also, he could not conspire on the doorstep with another officer to violate the rights of the person in the home. Of course, these are not much different from your blackberry example.
January 12, 2011, 7:04 pmSam Baker says:
A consent search is not a search, but lets take border searches:
United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (“travelers may be stopped [and searched] at . . . the border without individualized suspicion”)
That is an example of affirmatively dispensing with the probable cause requirement and it is exactly what they have not done for exigency exception searches (at least not yet). We can discuss whether it might be a good idea for the Supreme Court to, in the future, get rid of the probable cause requirement for exigency exception searches, and you certainly seem to have some passionate feelings on that issue, but the important point is that they have not gone and done it yet.
[OK Comments: First, the border search cases eliminate an individualized suspicion requirement, not a probable cause requirement. Second, I have no particular feelings about whether the Supreme Court should establish a probable cause requirement for exigent circumstances cases. It's impossible to answer without first knowing *what* there is supposed to be probable cause *of*, which you have not answered and which presumably would depend on whether it is an emergency exigent case, a hot pursuit exigent case, a destruction of evidence exigency case, a public safety exigency case, etc. As the Supreme Court has never required probable cause for exigent circumstances searches, it's not clear what the requirement would look like. ]
January 12, 2011, 7:06 pmrudduyturnstone says:
“But what law does a police officer break if he threatens to burst into a home? It’s not a search or seizure, so it doesn’t violate the Fourth Amendment. What law does that violate? Does anyone know?”
Besides the issue of the validity of any consent that follows such a threat, I see no reason for not considering such a threat to automatically make any search or seizure that follows invalid. A search and seizure is a process, not simply the act of opening the door and looking around. Substantively, perhaps even formally, everything the police do to gain entry shoud be considersed as part of the search and seizure.
January 12, 2011, 7:29 pmrudduyturnstone says:
The courts have no trouble with looking at “the totality of the circumstances” in cases where this seems to favor the police, I see no reason to not do so here. Anything the police do, lie, threaten, mislead, etc, etc, should be considered in whether the search is “reasonable” or not. IMHO, it is not “reasonable” to conduct a search based on a threat to break the door down if consent is not given, if it is otherwise unlawful to break the door down (as there was no exigency), whether the police were lying or not in making the threat.
January 12, 2011, 7:33 pmCockleCove says:
Orin, do you think there’s any chance — given, e.g., the dispute as to whether the police demanded entry — that King might end up as a “cert. improvidently granted” dismissal?
I’m also curious about this excerpt from the argument of the Ass’t Solicitor General for the United States (amicus for Kentucky):
I’m wondering why the Court would want to reach the Fourth Amendment question if there were, in fact, no police-created exigency. And apart from whatever problems there may be in the record, does the grant of cert, as enunciated, preclude the Court from taking up the question of whether there is sufficient evidence of an exigency?
January 12, 2011, 7:36 pmGuy says:
Wait, the Supreme Court can actually change what the Fourth Amendment means, as opposed to just giving a definitive interpretation of it? Who knew? If the Supreme Court has not addressed the issue, then it is simply not clearly established law one way or the other. When the Supreme Court addresses the issue, it will be clearly established.
And textually (just for a lark), there is no probable cause requirement for searches and seizures; there is a reasonableness requirement for searches and seizures, and a probable cause requirement for warrants. The Fourth Amendment has always been understood to impose a warrant requirement for (many) searches and seizures, but interestingly, it does not explicitly say so.
January 12, 2011, 7:38 pmruddyturnstone says:
Also, why should the threat to break the door down (if there was no authority to do so, and the cops knew it) not be considered either a “terrorist threat” or simple blackmail? What is blackmail but the use of a threat to perform an illegal act (like busting down a door) to get someone to do something that one wants them to do? Is it generally considered lawful for folks to go around threatening to destroy property and break open a house unless the property and house owner does something that he has every right to refuse to do so? Even if it is not criminal (which I doubt), it must surely be actionable.
January 12, 2011, 7:46 pmDavid M. Nieporent says:
Really? How about “Open the door or I’ll shoot you”? It seems to me that this would be a criminal threat, wouldn’t it?
EDIT: I see Dilan beat me to it.
January 12, 2011, 7:54 pmSam Baker says:
If you want to get originalist, the Fourth does not provide for any exceptions, so none of them are valid. Back on planet Earth, it is understood that it is a Constitution they are expounding, and that judicial exceptions to the warrant requirement are to be drawn and interpreted narrowly.
Frankly, it would be better to stop making these extra-textual exceptions and just get rid of the extra-textual exclusionary rule instead. In fact, that seems to be happening.
Side note: for a year back in 2004-05 I lived in an apartment building that had a drug dealer. His was the unit that did not have marijuana fumes coming out of it all the time, and I didn’t think that at all unexpected.
January 12, 2011, 7:56 pmAnthony says:
Well, quite a few things, though they tend to be unlawful for reasons utterly unrelated to them being police officers (for example, they could burn down the building. That would certainly help to reveal evidence, at least some sorts, and would also be unlawful). However, quite a few forms of deceit are not unlawful but probably aren’t things we want the police doing.
January 12, 2011, 8:37 pmruddyturnstone says:
“However, quite a few forms of deceit are not unlawful but probably aren’t things we want the police doing.”
Yes, but it isn’t merely “deceit” that is being used here, but threats. Even if the threat was never intended to be acted upon (hence the deceit), it was still a threat. A threat to act in an unlawful (breaking and entering, forced entry) way, not to mention a police state manner. A threat which the recipent of has every reason to believe is NOT merely a trick. A threat intended to strike fear in the recipient so that he will do what he has every right not to do. Whether “related to them being police” or not, that is still a crime. So it is “unlawful.”
January 12, 2011, 8:43 pmNI says:
But Scalia didn’t ask if it was a violation of the Fourth Amendment to threaten to burst into a home; he asked if it was unlawful. And I think the clear answer to that question is yes: It’s extortion. I, at least, would certainly expect to be charged with extortion if I threatened to burst into my neighbor’s home.
And I think there’s a good argument to be made that if the police commit a felony, that the fruits of their felony should as a matter of policy be excluded, even if it’s too much to hope that they would actually be prosecuted for it.
January 12, 2011, 8:55 pmAnthony says:
Even granting this is true, what about it? I think it would be more useful to come up with examples that are clearly lawful behavior and yet also things the police shouldn’t be permitted to do (this may be hard to do, since a lot of them are probably minor infractions or public nuisance issues).
January 12, 2011, 8:56 pmIspep Teid says:
In this situation, how (if at all) would principles similar to fraud fit in? Maybe there could be “unlawfulness” if the government lies to obtain a benefit that it was not entitled to, otherwise would not haved received, and which was detrimental to the occupant.
January 12, 2011, 9:02 pmIspep Teid says:
“Say, that’s a nice door ya got there. It would be a shame if anything happened to it. So how ’bout we do this the easy way and you let us in.”
January 12, 2011, 9:04 pmIspep Teid says:
While we’re talking about unlawfulness (particularly under state law), isn’t that a dangerous road to go down? A state could easily pass a law stating that it is not unlawful for the cops to threaten to break down doors, etc. A principled standard that exists outside of the control of mere statutory manipulation seems necessary. But I’m not smart enough to think of a good standard.
January 12, 2011, 9:11 pmTechGeek says:
OK, here’s one. Police officer standing at your door says “Get out of the house! There’s a gas main leak, if you stay in the house you will die! Get out now!” Or, “(knocks on the front door) There’s an escaped convicted serial murder on the loose, he is armed and dangerous, please lock your doors and don’t open them for anyone. (leaves, then 30 seconds later…) Oh shit, he just broke into your house, he’ll kill everyone! Get out of the house, get out, get out!”
Those are deceitful, probably lawful, but probably not in society’s interest for police to use as a trick to search someone or search someone’s home. If police used these kinds of tricks, then over time people would lose faith in the police and stop obeying them in legitimate public safety situations, leading to more deaths. Therefore, I think there’s a good argument that police should not be permitted to use this kind of trickery.
January 12, 2011, 9:20 pmMalvolio says:
If a police officer is allowed to threaten to commit a violent felony against a suspect if the suspect withholds consent to a search, the Fourth Amendment is worthless.
January 12, 2011, 10:01 pmOrin Kerr says:
Sam Baker: “A consent search is not a search”
Once again, Mr. Baker, you’re wrong. The search inquiry is governed by the reasonable expectation of privacy test. Consent doctrine is distinct from that.
That’s why the Supreme Court refers to consent searches as reasonable searches, not as non-searches. As the Court explained the doctrine recently in Georgia v. Randolph:
January 12, 2011, 10:06 pmAnon21 says:
I’m confused. North Carolina v. Butler appears to be a Miranda waiver case, not a Fourth Amendment case. Is there a different North Carolina v. Butler?
January 12, 2011, 10:17 pmOrin Kerr says:
Anon21,
Oops — my bad. It’s Bumper v. NC, not NC v. Butler. So many crim pro cases, so little time….
January 12, 2011, 10:24 pmPublic_defender says:
If you open a door for a cop who wants in, many cops will, at a minimum, stick a foot in the door. If you then try to close the door, you risk a felony charge of assaulting the cop.
January 12, 2011, 10:40 pmDilan Esper says:
The stars are alighned tonight, David.
January 12, 2011, 11:13 pmOrin Kerr says:
Dilan, David,
So in your view, does state criminal law count in the lawfulness determination? If so, how do you get around Virginia v. Moore?
January 12, 2011, 11:18 pmwhit says:
a statement CAN be a search or a seizure at least in my state.
“Stop, police” is a seizure in my state. in SOME states, it’s not a seizure unless the person complies. but in my state, the order itself is a seizure.
“empty your pockets” is a search. if i order somebody “empty your pockets” that’s a search.
i’m not saying what was said in this case was a search or seizure one way or the other. but statements made by police can be.
January 12, 2011, 11:47 pmhf says:
Prof Kerr
In Virginia v. Moore, the arrest and subsequent search were judged to be constitutional, because it would be perfectly constitutional for a state to have laws allowing arrest for driving with a suspended license. The officers violated state law but not the constitution.
This cases raises a different issue – it would clearly be unconstitutional to forcibly enter the house without a warrant or any of the usual exceptions, independent of any state law. You’re distinguishing the threat of force from actual force – the issue is whether or not that distinction makes a difference for the 4th A, not whether it violates state law.
BTW, although it’s not really relevant, in real life if a guy bangs on peoples’ doors threatening to force entry, he gets arrested if the homeowner hasn’t already shot him.
January 12, 2011, 11:47 pmwhit says:
maybe in your state. in my state, that would be unlawful on the cop’s partunless he had lawful reason to enter the house itself
January 12, 2011, 11:49 pmOrin Kerr says:
hf,
I think you misunderstand both VA v. Moore and the issue here.
Let me offer my question in the form of a hypo. Imagine you are in a state that makes it a petty misdemeanor to bang loudly on someone’s door and demand entry. If the lawfulness inquiry is based on state criminal law, then the police cannot bang loudly on the door and demand entry. That is, the reasonableness of the demand, from a constitutional standpoint, is determined by state law. Based on Virginia v. Moore, I don’t see how the Court could adopt such a rule.
Whit,
We are discussing federal constitutional law; you appear to be discussing state constitutional law.
January 12, 2011, 11:53 pmwhit says:
it vitiates the consent. any threat made will vitiate. fwiw, i have taught my recruits, and i have it upheld in court that it’s ok to ask for consent to search and say “i believe i have probable cause to APPLY for a search warrant if you refuse”.
that does not vitiate consent.
if you say “i believe i have probable cause to GET a search warrant OR i will get a search warrant” that vitiates consent.
as far as threats to get compliance…
let’s say a guy is running. shooting him in this instance is not justified (tenn v. garner) based on the nature of the crime and./or no reasonable belief he poses a significant enough danger if not immediately apprehended.
do you think it’s wrong (or should be illegal) for a cop to yell “stop or i’ll shoot”?
fwiw, that method DOES work, but the person has to be very naive etc. no conwise person will think you will shoot, but some newbies will.
i’ve seen that technique work.
i’ve also seen verbal haranguing work. i was chasing a DV assault suspect once and I kept yelling “stop” and he kept running.
I yelled “are you a man or a pussy? only pussies run!”.
he IMMEDIATELY came to a complete stop, turned and faced me with his fists up and said “i am not a pu***” as i tackled him
patrol tactics…
January 12, 2011, 11:55 pmwhit says:
i wasn’t aware that “public defender” et al was. he gave a scenario referencing a police officer, and thus (assuming , as 95% of POLICE officers are that this was not a federal police officer), state constitutional law applies as well
January 12, 2011, 11:57 pmwhit says:
a state cannot pass a law that diminishes people’s rights recongized under the federal constitution.
they can expand rights. this would do the opposite.
of course they routinely do it in regards to the 2nd amendment, but it’s starting to get better, chicago etc. notwithstanding
January 12, 2011, 11:59 pmDavid Schwartz says:
I don’t see any way it could matter to the 4A exclusionary rule inquiry whether the police’s conduct was lawful or not under State law. I suppose the Supreme Court could create a doctrine that State law informs the 4A reasonableness inquiry but AFAIK, they haven’t done that yet nor would this case create a sensible opportunity for them to do so. (I seem to recall a few other cases over the last 10 years where it seemed much more sensible for them to do so if they were so inclined and they declined.)
January 13, 2011, 12:24 amruddyturnstone says:
“If a police officer is allowed to threaten to commit a violent felony against a suspect if the suspect withholds consent to a search, the Fourth Amendment is worthless.”
Exactly. So it SHOULD be seen as part of the search, and unreasonable, and therefore unconstitutional under the Fourth Amendment.
Buuuut, Scalia didn’t ask that, he asked if it was “unlawful.” I’m pretty sure, in most States, at least, it is, independently of the police/search/4th Amend. context. And I don’t think it would be so “easy” for a State to pass a law basically exempting the police fromm most felony statutes. Nor would such a law itself be immune from constitutioinal attack on various grounds, including the 4th Amend.
January 13, 2011, 1:55 amDavid Schwartz says:
This is precisely why the standard must be ‘unreasonable’ rather than ‘unlawful’. Otherwise all kinds of state (and even, presumably, local) laws would modify in fundamental ways the scope of the exclusionary rule. 4A doesn’t prohibit the police from breaking the law.
I think the best resolution for this case would be for the Supreme Court to hold that if the police conduct created an expectation of imminent entry (absent legal authority for such entry), then the search is unreasonable and remand for the District Court to answer that question. (Akin to if they had said, “Police, search warrant!” and then the person opened the door and said, “Okay, come in and search.”)
If the police conduct was reasonable, it doesn’t matter that the police were a link in the chain that created the exigent circumstances, the search is lawful. If the police smell pot, knock politely on the door, and in response hear someone yell “Police, flush the weed!”, they can enter. (Unless other circumstances make the police conduct objectively unreasonable, of course.)
January 13, 2011, 4:50 ampublic_defender says:
A judge or jury could determine that the cop reasonably believed that opening the door demonstrated that the occupant was inviting the cop in. I’m not saying that’s right, but the trier of fact has complete control over determining the motives of the people involved.
the bottom line is that on this issue, Scalia is living in a fantasy world.
January 13, 2011, 5:57 amAnderson says:
“Open the door or I’ll shoot your wife” seems to this naive reader like an “unreasonable” search, such that any case law to the contrary ought to be overturned. But que-sais je?
January 13, 2011, 6:56 amSam Baker says:
First, the border search cases eliminate an individualized suspicion requirement, not a probable cause requirement.
Oops, my bad. I cited the correct case, but I put the wrong quote in the parenthetical. United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.”)*
That is an example of affirmatively dispensing with the probable cause requirement and it is exactly what they have not done for exigency exception searches (at least not yet). We can discuss whether it might be a good idea for the Supreme Court to, in the future, get rid of the probable cause requirement for exigency exception searches, but the important point is that they have not gone and done it yet.
Furthermore, some warrantless border searches (eg certain inland searches on roads) do require probable cause. This is because the Supremem Court chose not to affirmatively excuse the probable cause requirement even as they did excuse the warrant requirement. The probable cause and warrant requirements are not joined at the hip. They are both excusable by the Supreme Court, but they are not excused until the Supreme Court actually excuses them for a given constituent exception in the plethora of exceptions it has created.
FOOTNOTE:
* on its facts, Montoya was a seizure case and not a search case, and one could argue that its elimination of the probable cause in the context of border searches is dicta for that reason. But the point I am making on this thread is that probable cause is required by default because of the Fourth Amendment until the Supremem Court affirmatively says its not, and Montoya is good proof of that principle.
January 13, 2011, 7:58 amSamantha Baker says:
Once again, Mr. Baker, you’re wrong. The search inquiry is governed by the reasonable expectation of privacy test. Consent doctrine is distinct from that.
For present purposes, consent is not a search because consent operates to excuse warrant and reasonableness and probable cause requirements by private ordering in one fell swoop. That is why the Supreme Court does not need to affirmatively excuse these requirements in consent (unlike, say, border or exigency searches).
It would be interesting if a suspect said: “Officer, I give you conditional consent to search my bra, but only on condition that you have probable cause to do so.”
I wonder what the Court would do with that if it came up in a case where the officer performed the search, but did not have pc. My guess is that the court would say that this conditional consent excused the warrant requirement but did not excuse the probable cause requirement. Hopefully, the state could still use Herring to lock me away, though, because it is just second base.
January 13, 2011, 8:10 amSamantha Baker says:
But Scalia didn’t ask if it was a violation of the Fourth Amendment to threaten to burst into a home; he asked if it was unlawful. And I think the clear answer to that question is yes: It’s extortion.>
Well, it is until some state passes a statute that says that law enforcement is exempt from extortion laws so long as they are not seeking monetary gain. Then it wouldn’t be. Good to go. Suspect in custody. 10-8.
January 13, 2011, 8:15 amAnderson says:
Sam Baker … Samantha Baker … anything you need to tell us? Don’t be shy; it’s the internet!
January 13, 2011, 8:31 amHalftrack says:
A police officer standing outside my door has already entered my property.
I assume that a police officer knocking on my door is within the limited implied license most people have to enter my property, at least as far as my doorbell. At some point though wouldn’t the police officer be exceeding the scope of that license? Acting belligerently, lying to me and threatening me would seem beyond the scope of any reasonable implied license.
In fact, if I don’t answer the door or at least say “give me a minute”, after a few knocks, I expect most people to git on off my property. Why should police be any different, absent cause?
January 13, 2011, 11:12 amZiz says:
I think what he’s saying is that making the federal 4A right dependent on state-defined unlawfulness puts control in untrustworthy hands. As I understand the argument, a state wouldn’t be diminishing the right under that scenario, because the right itself would depend on some state-defined notion of “unlawfulness.”
January 13, 2011, 11:29 amOrin Kerr says:
Sam,
I appreciate your tenaciousness, but you are describing a state of Fourth Amendment law that I do not recognize.
January 13, 2011, 12:09 pmPraetorius says:
ALDE delenda est…..
January 13, 2011, 12:27 pmJim says:
So what if you open the door to decline consent and the officer pushes in claiming to smell pot? They were already predisposed to suspect the occupants of this apartment. Wouldn’t any suppositions on the officer’s part be influended by this bias?
Didn’t the officers in this case choose the defendant’s door by pretty much random selection? How does that fit in with either a probable cause or reasonable question?
And what exactly constitues “sounds of evidence being destroyed?” That could be just about any noise coming from behind closed doors especially if the officers already suspect their is criminal activity occuring inside.
IANAL, so maybe none of this is relevant.
January 13, 2011, 1:13 pmDilan Esper says:
I guess one thing you can say about Virginia v. Moore is that Scalia said that it didn’t make sense to import state ARREST standards into the Fourth Amendment. Perhaps it is distinguishable with respect to other sorts of state legal standards.
The other possibility is that some officer statements would simply violate the reasonableness standard in the Fourth Amendment itself. In other words, if you obtain consent to entry through the use of this sort of threat, perhaps, WHATEVER state law provides, the search can be considered unreasonable because of that.
Having said that, as you very well know, the Fourth Amendment is your area, not mine. :) So I’m certainly not going to tenaciously hang on to either of these theories.
January 13, 2011, 2:20 pmDilan Esper says:
By the way, Dahlia Lithwick has some fun about this case in Slate:
http://www.slate.com/id/2280970/
My favorite– she says the facts of the case read like a Cheech and Chong script
January 13, 2011, 2:51 pmAnthony says:
Depends where the edge of your property is. The case in question was an apartment building, so no, the police had not entered the person’s property.
January 13, 2011, 2:55 pmJGG says:
Counsel for Kentucky is assuming that the exigent circumstances doctrine requires probable cause. Some lower courts have said this, and I would guess the Kentucky courts are among them. But the U.S. Supreme Court has never said that.
“As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.”
- Kirk v. Louisiana
January 13, 2011, 3:52 pmSam Baker says:
Good catch, JGG. See also: http://volokh.com/2010/02/09/the-misunderstood-reasonable-expectation-of-privacy-test/
Long thread. Do a find on Kirk.
January 13, 2011, 5:48 pmKevin says:
What about police threats to take your children unless you consent to a search. “Sign this consent or I’ll call children services and you will never see your kids”.
Scalia would say my client is being dumb to consent, but it happens everyday.
Fear of children services is the same as the threats of violence. Rarely do the cops call children services. Apparently a consenting drug dealer is ok with the kids.
January 13, 2011, 7:46 pmOrin Kerr says:
JGG,
That’s a good effort, but it misses the mark. Payton and Kirk are about the rule for entering a home to make an arrest, not the rules for conducting exigent circumstances searches. The probable cause in Payton is probable cause that a person can be arrested, not probable cause that evidence is located in the place to be searched.
Under Payton, there needs to be either an arrest warrant establishing probable cause that the person committed the crime to make the arrest, or else (a) probable cause that the person committed the crime to make the arrest and (b) exigent circumstances. The Payton rule was then repeated in Kirk. But neither are about exigent circumstances searches.
January 13, 2011, 10:19 pmJGG says:
In my opinion, you read Kirk too narrowly. In Kirk, the Court cited police testimony that they entered the apartment because they feared evidence would be destroyed. Then, the Court writes that it agrees with the dissent in the court below, which said: “police need both probable cause to either arrest or search and exigent circumstances to justify a nonconsensual warrantless intrusion into private premises.”
So, I think Kirk is fairly read to apply to exigent entry for either arrest or search. That’s my take on it anyway.
January 13, 2011, 11:15 pmSamantha Baker says:
The Louisiana Supreme Court denied review by a vote of 4 to 3. In a written dissent, Chief Justice Calogero explained:
“The Fourth Amendment to the United States constitution has drawn a firm line at the entrance to the home, and thus, the police need both probable cause to either arrest or search and exigent circumstances to justify a nonconsensual warrantless intrusion into private premises… . Here, the defendant was arrested inside an apartment, without a warrant, and the state has not demonstrated that exigent circumstances were present. Consequently, defendant’s arrest was unconstitutional, and his motion to suppress should have been granted.” App. to Pet. for Cert. 1—2.
We agree with Chief Justice Calogero that the Court of Appeal clearly erred by concluding that petitioner’s arrest and the search “incident thereto,” 773 So. 2d, at 263, were constitutionally permissible. In Payton, we examined whether the Fourth Amendment was violated by a state statute that authorized officers to “enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest.” 445 U.S., at 574. We determined that “the reasons for upholding warrantless arrests in a public place do not apply to warrantless invasions of the privacy of the home.” Id., at 576. We held that because “the Fourth Amendment has drawn a firm line at the entrance to the house …[, a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Id., at 590. And we noted that an arrest warrant founded on probable cause, as well as a search warrant, would suffice for entry. Id., at 603.
Here, the police had neither an arrest warrant for petitioner, nor a search warrant for petitioner’s apartment, when they entered his home, arrested him, and searched him. The officers testified at the suppression hearing that the reason for their actions was a fear that evidence would be destroyed, but the Louisiana Court of Appeal did not determine that such exigent circumstances were present. Rather, the court, in respondent’s own words, determined “that the defendant’s argument that there were no exigent circumstances to justify the warrantless entry of the apartment was irrelevant” to the constitutionality of the officers’ actions. Brief in Opposition 2—3. As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home. The Court of Appeal’s ruling to the contrary, and consequent failure to assess whether exigent circumstances were present in this case, violated Payton.
One can argue that this quote from Kirk is mere obiter dicta, but it does express pretty clearly that Justice Curium thought that probable cause was required, at least in the context of entering the home warrantlessly under exigent circumstances. More to the point than Brigham City where the police witnessed a guy being hit so hard that he spit blood into the sink.
January 13, 2011, 11:40 pmSamantha Baker says:
And as far as the idea of search versus seizure having differential levels of suspicion, lets see how reasonableness would dictate:
You are a lone police officer in your jurisdiction. There is a missing person feared dead and you are very much on the case. A highly reliable informant calls and says:
“I am sure house a has the murderer of the missing person, but I am also sure that she will leave if you do not get there soon.
I am also sure that house b has the corpse, but I am sure that an acid bath in house b will fully dissolve the corpse if you do not get there soon.”
To which house do you first go?
Could reasonable minds differ on this question?
January 14, 2011, 12:45 amOrin Kerr says:
Samantha Baker,
Your contributions to the thread continue to puzzle me. But I hope you have a great weekend.
January 14, 2011, 1:36 amSamantha Baker says:
I liked Chief Justice Roberts response to the probable cause confusion. He said that there was probable cause because of the marijuana smell. I didn’t understand this at first, but re-reading Johnson, the Chief Justice is correct. So, required or not, probable cause is there in the present case.
If there is probable cause, then it is difficult to see what value the magistrate would bring to the process as a practical matter. I suppose the magistrate could ask questions like:
Are there other residences close by and did you sniff at each close by residence to make sure that your attribution of the smell to the residence you want to toss is correct?
Can you distinguish marijuana smell from skunk smell and have you ever had to distinguish these smells under “double blind” conditions in your training?
How often have you tossed an automobile based on the fact that you smelt marijuana and it turns out there wasn’t any? Do you keep track of these “false positives” in writing and may I see them?
Are you familiar with marijuana scented air freshners and can you distinguish the scent of those legal commercial products from the smell of illegal marijuana? Have you ever been tested on your ability to make this particular distinction?
Have you had any previous run-ins or transactions with the occupants of that residence? Have any of them filed a complaint against any police department that you know of?
Can you look me in the eye (without winking) and tell me you are not lying to me about what you think you smelled?
These are great things for a neutral and detached magistrate to be concerned about, and would seem to support the application of the warrant requirement in King’s case. However, unfortunately for Justices Sotomayor, Ginsberg and Kagan, I don’t think that real life magistrates care about these kinds of issues and don’t force these issues, using appropriate and necessary procedures, when rubberstamping warrants. So it gets kind of hard to care about the warrant requirement when a police officer says she smells marijuana.
Maybe the most convincing reason for keeping the warrant requirement when police officers smell marijuana is as a way of determining how often the affiant officer turns out to be incorrect. I mean, the affiant officer will just say that they discarded the marijuana while she was off getting the warrant, but that is not really going to work in the age of cell telephones and email. My advice to Justices Sotomayor, Kagan and Ginsberg: when you write your dissents, focus on the fact that warrants create a mandated paper trail for finding out officers who are frequently wrong about the presence of marijunana. That is all a magistrate really does in this context, but it is valuable info for Fourth purposes.
January 14, 2011, 7:54 amOrin Kerr says:
Samantha Baker,
Yes, of course there was probable cause in this case: No one contests that. This wasn’t an insight from Roberts: It was just a recognition of a point that everyone in the litigation already accepts.
As for your proposed questions by a magistrate, all the Justices know that no magistrate would ask any of these questions. But that’s not the role of magistrates, or the purpose of the warrant requirement. To get up to speed on the latter, I recommend reading William Stuntz, Warrants and Fourth Amendment remedies, 77 Va. L. Rev. 881 (1991).
January 14, 2011, 10:37 amJoe says:
If the police threaten to shoot your wife unless you open the door, even if they have no reasonable cause to enter, it seems to me that they are providing illicit pressure on you to breach your constitutional rights. Constitutionally.
Accord. If I say “I want a lawyer” and doing so results in a constitutional right to silence, the police saying “well, you can do that, but if you do we will shoot your wife,” again, is an unconstitutional burden on my rights. The “unconstitutional conditions” principle seems somewhat applicable here.
January 14, 2011, 1:40 pmwhit says:
they’d be going against case law and making stuff up out of whole cloth in my state , and many others.
i guess a judge CAN of course do whatever he wants, though
so now we are back to (as opposed to – the cops can do whatever they want and lie about it ) argument, another version? the judge can make up whatever he wants and rule that way?
not much of a legal argument there.
January 14, 2011, 2:25 pmpublic_defender says:
Point taken. My argument was sloppy. Let me try again.
An open door could be taken as an invitation, and closing the door on the cop’s foot could be taken as an “assault” on the cop (probably a felony most places). My guess is that a prosecutor would have a difficult time winning a trespass case against a salesperson who put a foot in the door (at least until told to leave), so it’s reasonable to think that a cop might get away with doing the same thing. And once they can put a foot in the door, it can be an assault if you close the door on it.
January 14, 2011, 4:17 pmSamantha Baker says:
Okay, read Professor Stuntz’s article.
1. We agree that search warrant inquiries are not going to become more searching, as I stated in my previous post.
2. We agree that without a very searching search warrant inquiries it is difficult to know why we have search warrants at all. My previous post on this thread, and his article, are both searches for what meaning or policy search warrants should have.
3. (the late?) Professor Stuntz says that his favorite policy is elimination of judge bias. I don’t necessarily agree or disagree. He seems to say that: (i) the search warrant tribunal gets lousy (that is, one sided) evidence, but will have an impartial judge; and (ii) the criminal trial tribunal will have good evidence (that is, adversarily developed evidence, two sided), but a biased judge. He says that sometimes you want both types of tribunals. Maybe, maybe not, says I. To the extent that he says that the one sided search warrant proceeding should cut off civil liability, I strongly disagree. This part of his article will probably diminish in force as the exclusionary rule goes away and civil liability makes a comeback to fill in the vacuum.
4. My previous post suggested that an important policy for search warrants could be that their aggregated data over time could be used as a diagnostic tool. Interestingly, Professor Stuntz uses them in exactly this way in his article a couple of times. He had some statistic like 70% (forget the exact number) of search warrants find at least some of the evidence that the warrant names prior to the search. This is using an aggregate to determine if there is a Fourth Amendment problem are not. This is exactly what my previous post encouraged Justices Sotomayor, Ginsberg and Kagan to put forward as a raison d’etre for a warrant requirement in pot smell cases. The article does the same thing (albeit hypothetically) when it says that police officers could make up fake informants who say there are cocaine in basements, just so long as some percentage of basements had cocaine over the long run. It is this caveat about having cocaine in a certain percentage over the long run that is the nub of of my previous posts. With warrants, there is a long run tally. With no warrant requirement, fruitless searches disappear down the memory hole, and nobody can ever say there is a problem.
5. While Professor Stuntz uses warrants exactly as I advocate they be used (as a longterm, aggregate database for diagnostics), his article does not advocate that the government use this data in this way. Maybe that was a mere failure of imagination. However, my theory is that he is so hung up on police “perjury” and the utility of unverifiable informants that he misses the bigger Fourth Amendment picture. Police do not only suffer from perjury. they suffer from perception problems, from attribution bias, from confirmation bias, from selective memory, from a lack of double blind testing of their supposed abilities as drug detector machines, from memory problems, from wishful thinking, from noble cause corruption, from poor credibility judgments and so on and so “fourth.” It is not just a perjury thing and it isn’t always about CI’s. Once one shed the blindered view of Professor Stuntz’s article, one can see that warrants can and should be used for a more holistic sort of maintenance of the Fourth Amendment. The fruitful versus fruitless hits should be tracked over the long run and over a wide range so we know whether the results look good in the aggregate. If they don’t — if say, less than half of the searches come back fruitful, then the magistrates know that they need to clamp down incrementally. They can decide if they are experiencing perjury or other problems. They are on the front lines. To some extent they would figure things out by trial and error. But the point is: it is meaningful to say “loosen up” or “clamp down” to a benchful of magistrates. They know what that means and they will be able to take thinks in the appropriate direction holistically and in the aggregate.
January 14, 2011, 7:45 pmSamantha Baker says:
By the way, Professor Stuntz’s article seemed to assume throughout that probable cause would continue to be required, even if the warrant requirement shrinks for policy reasons.
January 14, 2011, 8:03 pmBlawg Review #294: MLK, Jr. Day edition says:
[...] Them Well” category: Radley Balko has this write up on oral argument [Orin Kerr provides his thoughts here] before SCOTUS in Kentucky v. King, a case that will further erode decide the scope of the [...]
January 16, 2011, 9:31 pm