19 May 2011

Justice Ginsburg gets it.

Unfortunately, the other eight don't.

At trial, the examination of a criminal defendant's motive is crucial, because for the most part, motive makes the crime. So for example, if your intent is revenge, killing is murder. If your intent is self-defense, killing is permitted.

Ultimately, motive is an essential part of the criminal law equation: prohibited act + bad intent = crime. Every criminal defendant's motives are entirely situational — subjective — and properly examined by the trial process — "why did this defendant do this?"

However, Courts refuse to apply the same sort of examination of the motives of individual law enforcement officers involved in criminal cases. Deferentially, they allow agents of the state a mere objective examination. Thus, the question to the judge is never "why did this cop do this?" but "can I imagine other cops doing this?" It's extremely uncommon for a judge's imagination to fail.

But in cases where the questionable behavior of government agents exposes the questionable behavior of an individual, it's manifestly unjust that the motives of the government agent merits a less rigorous examination than the motives of the individual actor. Indeed, where the judiciary's task is to referee the contest of State v Citizen, the court's responsibility should be to hold the state to at least as high, if not a higher standard of behavior than it holds the individual.

To do otherwise invites the state to zealously trample the law in order to enforce it.

The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
SCOTUS created an exception to the Fourth Amendment allowing law enforcement to search and seize without a warrant if "exigent circumstances" make obtaining the necessary warrant impossible. So, for instance, if police are in hot pursuit of an armed robber who escapes inside a private home, the police are not required to secure a warrant before entering the house to search for the armed robber.

The cops aren't violating the homeowner's Fourth Amendment rights because the search is reasonable — they watched a dangerous suspect go in there. If cops look in the basement and find human remains on meathooks, that evidence isn't going to be suppressed at the homeowner's murder trial even though the cops didn't have a probable cause or a particularized warrant to find the bodies.

Until now the Fourth Amendment demanded warrants whenever possible, and if cops don't bother to get a warrant, they cannot manufacture the exigent circumstance to avoid the warrant requirement.

That all changed this week.

In Kentucky v King, SCOTUS held that cops are now free to choose to skip the warrant and create their own exigent circumstances. As usual, the cop's motives for doing so are irrelevant. With this atrocious decision, the exigent circumstances exception finally swallowed the rule. The opportunity to obtain a warrant no longer imposes any obligation to do so. Justice Alito, for the majority, writes:
Faulting the police for failing to apply for a search warrant at the earliest possible timeafter obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.
Ah, but the legal question wasn't "how quickly must police seek a warrant?" The question presented was "may police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances?" Eight justices think so.
...even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.
It is true that, in this case Mr. King possessed marijuana. It is true that in this case Mr. King was indeed attempting to destroy evidence after the police started banging on his door and yelling. However, Alito uses these facts to dismantle the Fourth Amendment's warrant requirement as if the requirement exists to aid criminals, rather than to protect the privacy of the American people by placing sensible restraints on police action.

Even accepting the facts of the case, the outcome wouldn't be different had law enforcement put a cop on Mr. King's door and obtained the warrant the Fourth Amendment requires. They still could have busted Mr. King for pot, with a warrant.

Despite granting law enforcement the power to ignore the warrant requirement, SCOTUS failed to grant them the superpower to infallibly discern between innocent noises and criminal ones. And now if a cop with bad intent manufactures an exigency to break into a house, we will not know because judges will not inquire as to the cop's motives.

It's objectively reasonable now.

Justice Ginsburg writes in a lonesome dissent:
The Court today arms the police with a way routinely to dishonor the Fourth 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.
...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.”
...There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.
I've said for a while this Rehnquist/Roberts Court is the second worst in American history. They seem determined to go for the #1 spot.

2 chimed in:

Mo Rage said...

Crusty, man, kudos. Another magnificent post. Good on you, man. You get it. You see what's happening. I'm not paranoid, by a long shot, but do see some things, like this, that are happening and I, like you, see this Roberts court for what it is.

Great blog, man. Thanks very much. Congratulations.

Someone needs to notice things and think on their own.

At least you're doing it.

Mo Rage said...

one last note.

It reminds me of the saying--so applicable--"If you're not angry, you're not paying attention."