Kentucky v. King

[jimpeel]

In a DISSENT that gores the opinion of the majority, Ruth Bader Ginsberg makes the case that proves them wrong. She was the sole dissenting voice, in a decision that opens wide the doors of abuse, as she cites decision after decision which underscores the ludicrous opinion of the majority.

As cited in her dissent, this decision literally skewers the decision in Johnson v. United States.

The warrant requirement, Justice Jackson observed, ranks among the "fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law."
-Johnson v. United States, 333 U. S. 10, 17 (1948).

So how does this affect firearms owners? The police could state that they could smell chemicals of the type which they are familiar as being used in the cleaning of firearms. As ludicrous as that seems on its face, that would give them probable cause to enter to search for illegal firearms without a warrant under the guise of exigency; because in the term it takes to obtain a warrant the evidence could be removed in their absence.

A stretch? Perhaps, but we have all witnessed the laws being extended to their furthest reach time and again. Witness the seizure and forfeiture, environmental, species protection, and the RICO statutes as primary examples.

To read the entire decision click the link below.

http://caselaw.lp.findlaw.com/script...&invol=09-1272

[secret_agent_man]

probable cause to enter to search for illegal firearms without a warrant under the guise of exigency

That does not sound like being very secure in your own home. One wonders if the last two appointees to SCOTUS aren't swinging to the right.

[Bartholomew Roberts]

I think it is beyond a stretch since the decision is limited to the test for exigent circumstances created by police. Volokh Conspiracy has several very good discussions of the case that are worth reading.

[hogdogs]

Just getting started on the VC blogs...

So here is where the case seems a bit sketchy...
The police made entry because they smelled weed or did they smell these...
http://www.ecrater.com/p/6210673/can...e-cones-box-10
Is it any one but my decision what I can consider a nice scent? There are folks who like the smell of farts or cow manure.

So a person doing something FULLY legal is no grounds for warrantless entry?

I am beginning to think armed home defense might be not be such a smart thing in america when we must fear leveling a firearm on a police dept. employee who busts in my home to arrest me for doing nothing wrong.

Brent

[secret_agent_man]

While Ginsberg was the only dissenter, maybe there is a backstory why Obama's two hand picked justices, Sotomayor and Keagan, sided with the majority in what appears to be a nearly complete abdication by SCOTUS of the Fourth Amendment. It's pretty good conspiracy material anyway.

[jimpeel]

The Volokh Conspiracy discussions by timeline from before the case was heard to the present situation, including possible ramifications in other types of cases.

Police-Created Exigent Circumstances: Thoughts on Kentucky v. King
Orin Kerr
• January 5, 2011 1:26 am

Thoughts On the Oral Argument in Kentucky v. King
Orin Kerr
• January 12, 2011 4:45 pm

C-SPAN Washington Journal on Kentucky v. King and Fourth Amendment Rights
Orin Kerr
• January 15, 2011 1:43 pm

Kentucky v. King and Police-Created Exigent Circumstances
Orin Kerr
• May 16, 2011 1:33 pm

Kentucky v. King and Computer Searches
Orin Kerr
• May 17, 2011 12:10 am

“Choosing the Rule for Police-Created Exigencies in Kentucky v. King”
Orin Kerr
• May 17, 2011 11:25 pm

Common Misreadings of Kentucky v. King, and the Difference Between Exigent Circumstances and Police-Created Exigencies
Orin Kerr
• May 19, 2011 2:06 pm

[Sarge]

Oh c'mon, Jim. Buy me a donut and I'll forget the whole thing

[jimpeel]

Next time yer rollin' through Longmont ...

Always remember:

As you venture through this life,
whatever be your goal.
Keep your eye upon the doughnut,
and not upon the hole.

[vranasaurus]

I don't see a problem with the majority opinion.

The court held that unless the police engage or threaten to engage in conduct that violates the fourth amendment then the exigent circumstances doctrine applies.

A person has no right to destroy evidence under the guise of the fourth amendment just because the police are knocking on the door.

Some courts, including the Kentucky Supreme Court, have imposed additional requirements--asking whether officers " 'deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement,' " 302 S. W. 3d 649, 656 (case below); reasoning that police may not rely on an exigency if " 'it was reasonably foreseeable that [their] investigative tactics ... would create the exigent circumstances,' "ibid.; faulting officers for knocking on a door when they had sufficient evidence to seek a warrant but did not do so; and finding that officers created or manufactured an exigency when their investigation was contrary to standard or good law enforcement practices. Such requirements are unsound and are thus rejected. Pp. 10-14.

If the police knocking on someones door amounted to a police created exigency that created an exception to the exigent circumstances doctrine then you would be very close to scrapping the exigent circumstances doctrine in it entirety.

[KyJim]

The facts of this case were fairly unique. Police were rushing to nab a drug dealer who had just completed a deal with a confidential informant (recorded) when the dealer stepped into the breezeway of an apartment building. Police entered the breezeway where there were only two doors. From one they smelled marijuana burning. The knocked on the door and identified themselves. They heard sounds they thought sounded like evidence being destroyed. They then entered without a warrant and saw marijuana in plain view. They found out later the drug dealer they were pursuing had entered the other apartment.

Exigent circumstances coupled with probable cause has long been an exception to the search warrant requirement. That's what happened here, looking at the totality of the circumstances. Actually, the case was remanded for the lower court to make this determination. When you look at the transcript of the oral argument, it's clear that Justice Ginsberg had not a clue about this exception to the search warrant requirement. This is elementary criminal/constitutional law.

The twist in the case is that some courts have looked at whether the police created the exigency and then applied one of several standards in weighing whether the good faith or forseeability of the bad guys' reaction justified suppressing the fruits of the search. The 8 justices in the majority said no. We never look at the subjective intent of the police officer in search and seizure cases. Again, this is elementary constitutional/criminal law and again Justice Ginsberg is clueless.

IMO, the case set no earth shattering principles here. It simply applied long established Fourth Amendment principles and set straight some lower courts that had seen fit to add tests the Supreme Court had never approved. I think that's what the author is trying to say here: http://volokh.com/2011/05/19/common-...ed-exigencies/