KICKING IN THE CONSTITUTION

The Supreme Court failed to keep a lid on police excesses with its
ruling in a Kentucky drug case.

One of the most important functions of the Supreme Court is to put
legal limits on police excesses. But the court failed to fulfill that
responsibility last week when it widened a loophole in the
requirement that police obtain a warrant before searching a home.

The 8-1 decision came in the case of a search of an apartment in
Kentucky by police who suspected illegal drugs were being destroyed.
The police, who said they smelled marijuana near the apartment, had
knocked loudly on the door and shouted, "This is the police." Then,
after hearing noises they thought indicated the destruction of
evidence, they broke down the door.

Police don't need a warrant to enter a residence when there are
"exigent circumstances," such as imminent danger, the possibility
that a suspect will escape or concern about the immediate destruction
of evidence. But in this case, the police actually created the
exigent circumstances that they then capitalized on to conduct the
warrantless search.

According to Kentucky's Supreme Court, the exigent-circumstances
exception didn't apply because the police should have foreseen that
their conduct would lead the occupants of the apartment to destroy
evidence. Overturning that finding, Justice Samuel A. Alito Jr. wrote
for the court that as long as the police officers' behavior was
lawful, the fact that it produced an exigent circumstance didn't
violate the Constitution. That would be the case, Alito suggested,
even if a police officer acted in bad faith in an attempt to evade
the warrant requirement.

But as Justice Ruth Bader Ginsburg pointed out in her dissent,
Alito's reasoning "arms the police with a way routinely to dishonor
the 4th Amendment's warrant requirement in drug cases. In lieu of
presenting their evidence to a neutral magistrate, police officers
may now knock, listen, then break the door down, never mind that they
had ample time to obtain a warrant."

Ginsburg also dismissed the argument that entering the apartment in
the Kentucky case was necessary to prevent the destruction of drug
evidence. Quoting the majority opinion, she wrote that "persons in
possession of valuable drugs are unlikely to destroy them unless they
fear discovery by the police." Therefore, police can take the time to
obtain a warrant.

Allowing police to create an exception to the warrant requirement
violates the 4th Amendment. That is how the court should have ruled.