The late Chalmers Johnson often reminded us that "A nation can be one or the other, a democracy or an imperialist, but it can't be both. If it sticks to imperialism, it will, like the old Roman Republic, on which so much of our system was modeled, lose its democracy to a domestic dictatorship." His warning rings more true by the day, as Americans watch the erosion of their civil liberties accelerate in conjunction with the expansion of the US Empire.
When viewed through the lens of Johnson's profound insights, the Supreme Court's recent ruling in Kentucky v. King makes perfect sense. On May 13, in a lopsided 8-1 ruling, the Court upheld the warrantless search of a Kentucky man's apartment after police smelled marijuana and feared those inside were destroying evidence, essentially granting police officers increased power to enter the homes of citizens without a warrant.
Under the Fourth Amendment, police are barred from entering a home without first obtaining a warrant, which can only be issued by a judge upon probable cause. The only exception is when the circumstances qualify as "exigent," meaning there is imminent risk of death or serious injury, danger that evidence will be immediately destroyed, or that a suspect will escape. However, exigent circumstances cannot be created by the police.
In this case, the police followed a suspected drug dealer into an apartment complex and after losing track of him, smelled marijuana coming from one of the apartments. After banging on the door and announcing themselves, the police heard noises that they interpreted as the destruction of evidence. Rather than first obtaining a warrant, they kicked down the door and arrested the man inside, who was caught flushing marijuana down the toilet.
The Kentucky Supreme Court had overturned the man's conviction and ruled that exigent circumstances did not apply because the behavior of the police is what prompted the destruction of evidence. Tragically, an overwhelming majority of the Supreme Court upheld the Conviction. Writing for the majority, Justice Samuel Alito wrote that citizens are not required to grant police officers permission to enter their homes after hearing a knock, but if there is no response and the officers hear noise that suggests evidence is being destroyed, they are justified in breaking in.
In her lone and scathing dissent, Justice Ruth Bader Ginsburg agreed with the Kentucky Supreme Court, arguing that the Supreme Court's ruling "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." She went on to stress that "there was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate's authorization."
Not only did the police instigate the destruction of evidence by banging at the door and shouting "Police, police," but they could have easily obtained a warrant since they likely had probable cause. There is no reason to believe that delaying the search to obtain a warrant, as legally required, would have led to the destruction of evidence. This was pure laziness and contempt for the constitution on part of the officers.
An argument could be made that entering without a warrant saves money, time, and resources, especially if it's obvious that a crime is being committed. However, the protection of our rights is worth the money, time, and resources. Living in a free society requires that we make these sacrifices, even at the peril of our safety if need be. In fact, I would argue that the wasting of money, time, and resources is the fault of a deeply flawed drug policy, not the protection of those pesky civil liberties always getting in the way of law enforcement.
As for the implications of such a ruling, arming the police with more power will have serious consequences for an already institutionally biased criminal justice system in regards to the "war on drugs." Jordan C. Budd notes the existence of a "poverty exception" to the Constitution, particularly the Fourth Amendment, a bias that renders much of the Constitution irrelevant at best, and hostile at worst, to the American poor. While attacks on the Fourth Amendment negatively affect all members of society, minorities and the poor, generally the targets of the drug war, are more vulnerable to the abuse of power that follows.
Chief Judge Kozinski of the Ninth Circuit recently decried this "unselfconscious cultural elitism" in a case upholding the ability of police to clandestinely attach a GPS tracking device to the underside of a car parked in the driveway of a modest home:
"Poor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it. . . . When you glide your BMW into your underground garage or behind an electric gate, you don't need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn't prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. . . .We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we're living in Oceania."
The same holds true in the context of warrantless door-busting. In the Kentucky case the police smelled marijuana in the hall of the apartment complex that the initial suspect they were tracking had taken refuge in. An apartment hall is a common space shared by many people, who could be emitting various odors from inside their homes, such as cooked onions or fresh paint. Had this been a single-family home in the suburbs, there is no way the smell of pot would have been detected from the doorway of the house across the street.
Scott Lemieux made this point well when he wrote:
"As with the broader drug war, civil-liberties violations have a disparate impact in terms of race and class. It is generally not wealthy white suburbanites who have to worry about being stopped and frisked on the streets or having their doors broken down. Like the grotesquely harsh sentencing disparity between powder and crack cocaine possession, this erosion of Fourth Amendment rights has persisted because wealthy people are largely insulated from its effects."
The failure of society at large to secure the rights of all segments of the population, has resulted in what can only be described as a nail in the coffin of our right to privacy, at least for those who can afford it.
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