What happens when Supreme Court justices try to think like criminal suspects.

Oral argument from the court.
Jan. 12 2011 7:00 PM

Crime and Blandishments

What happens when Supreme Court justices try to think like criminal suspects.

(Continued from Page 1)

Roberts identifies the problem with police-made exigency when he poses this hypothetical to Kentucky's assistant attorney general, Joshua Farley: If "you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs," he asks, could police just set up a system whereby "every two weeks they walk through and knock on every door and wait for evidence of the destruction of drugs"?

Justice Sonia Sotomayor puts it this way: "We start out with a strong presumption that the Fourth Amendment requires a warrant, a strong preference for getting the warrant. So why in this situation wouldn't the first response of the police be, instead of knocking—because once they knock they alert the people in there—let's get a warrant; we'll come back?"

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Scalia then asks what would have happened had the occupants of the apartment said, upon hearing the knock, "Oh, heck, no, you can't come in; do you have a warrant?" Farley replies that the cops would not have been able to force entry. The problem is that people don't know they can tell the cops to go get a warrant. Replies Scalia: "So basically the police were taking advantage of the stupidity of the criminals, is that right? That's terrible, that's not fair, is it?"

(Kennedy uses this opportunity to ask why the smoking of marijuana itself doesn't constitute the destruction of evidence.) It's so meta, you almost want him to throw it into a footnote at some point.

Sotomayor asks whether, if the court rules this exigent search to be legal, police will routinely say they heard something behind a closed door, tell a judge that whenever a door inside the apartment closes "it's destruction of property," and bust in.

Scalia interrupts: "Why not? I mean when there's a knock on—on the door, is the normal human reaction to walk into the other room and shut the door?" Scalia can't imagine naked people, I suppose. He then continues, "I don't recall it ever happening to me, but maybe—maybe I'm a likable fellow and people open the door."

Of course, what most of the justices fail to imagine in all this hazy smoke and drug talk is that the Fourth Amendment exists not merely to protect the "stupid" criminals from unreasonable searches, but to protect the innocent as well. King's lawyer, Jamesa Drake, attempts to make this very point in her argument. When Scalia asks her why smarter criminals wouldn't have just told the cops to come back with a warrant, she replies, "There is no difference between what happened in this case and how an innocent person would respond."

Kagan ends the morning observing that "one of the points of the Fourth Amendment is to ensure that when people search your home, they have a warrant, and of course there are exceptions to that. … And I think that the concern here is that your test is going to enable the police to penetrate the home, to search the home, without a warrant, without going to see a magistrate, in a very wide variety of cases. That all the police really have to say is: 'We saw pot, we heard noise.' "

That seems to be rather an important point here. The justices are so busy trying to get inside the criminal mind, they are poised to eviscerate the warrant requirement in a broad class of "exigent" situations. Mr. King was indeed getting high, but he was not, please recall, the dealer the cops chased into that building. And all that shuffling and flushing behind the apartment door? Sure, it may be some guy's drugs. But if you listen very closely, it sounds a lot like the Fourth Amendment.

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