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.

Criminal. Click image to expand.

A pair of cases argued at the Supreme Court this morning require the justices to put themselves into the heads of dangerous criminals. The first asks whether a man fleeing the cops in his car was engaged in behavior that presents a serious potential risk of injury—or was maybe just driving very fast away from the cops. The second probes the reasonable expectations of a drug dealer when the cops pound on his apartment door without a warrant. Now, you might think that the prospect of high-speed police chases and sweaty-palmed drug busts would get the justices' criminal juices flowing. But for the most part, their knowledge and understanding of American criminal activity seems to be ripped right out of the Wile E. Coyote playbook.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Here's Chief Justice John Roberts, for example, describing the average jailbreak: "I assume the ordinary prison escape is—I don't know—over the wall, under the tunnel, or, you know, while the guard's looking a different way." Justice Anthony Kennedy wonders aloud: "This may be a bit rudimentary, but can you tell me why isn't the evidence always being destroyed when the marijuana is being smoked? Isn't it being burnt up?" And then Justice Antonin Scalia expounds on the need for zealous police enforcement powers, up to and including the right to search your home without a warrant, because, as he explains, "there are a lot of constraints on law enforcement, and the one thing that it has going for it is that criminals are stupid."

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The first case asks whether Marcus Sykes should have had his prison sentence significantly increased because he had been convicted of three previous violent felonies. The federal statute in question, the Armed Career Criminal Act, defines those three "violent felonies" rather specifically to include a laundry list of crimes (burglary, arson, extortion, , and crimes of that ilk), and in a 2008 case the Supreme Court further fuzzed up that standard with the declaration that a previous conviction does not count as a "violent felony" unless the crime was "purposeful, violent, and aggressive." And so we find ourselves this morning speeding with the justices down the open highway of violent, driving hypos.

Justice Samuel Alito, for instance, has found a case in which intentional vehicular flight led to "a 45-minute high-speed chase" in which "officers shot at the defendant's truck at least 20 times" while the "defendant drove over 100 miles an hour and at times drove into the oncoming traffic lane."

Scalia, on the other hand, thinks that fast fleeing is just not such a violent activity: "Do words mean nothing?" he asks, mournfully, of Assistant Solicitor General Jeffrey B. Wall. "I mean, we're talking about a violent felony. That's what the federal law requires. And you want us to hold that failing to stop when a police officer tells you to stop is a violent felony. That seems to me a big leap."

Roberts gently chides Wall, who argues that fleeing in a vehicle is by definition aggressive: "It seems to me, this is the exact opposite of aggressive. He's running away. Certainly the other option is to turn and confront, and he doesn't want to. There's nothing aggressive about running away." He adds: "Those are the three words, 'purposeful, violent, and aggressive.' I'll give you purposeful, I'll give you violent, but aggressive?"

Scalia then asks whether speeding is also a violent felony, and Justice Elena Kagan asks whether drag racing or running away on foot are violent felonies as well. Everyone agrees that running away from a prison on foot is a felony because the case law says as much, but nobody seems to agree on whether fast driving from the cops is violent or aggressive, or why.

The second case, Kentucky v. King, reads a bit like a Cheech and Chong script. The Fourth Amendment requires that the police obtain a warrant—backed by probable cause—to search your home. There are some exceptions to this requirement, which you may remember from NYPD Blue. They include the wonderful world of car searches, objects "in plain view," and "exigent circumstances" (i.e., emergencies where the police don't have time to go fetch a warrant because somebody will die, escape, be injured, or flush the drugs while the cops are on the phone spelling out the street address).

In 2005, undercover cops in Lexington, Ky., chased a suspected dealer into an apartment building. The dealer went into one apartment. The cops mistakenly trailed him to the door of another apartment. Smelling marijuana, they knocked and announced themselves. Upon hearing "noises," they feared evidence was being destroyed, so they knocked down the door and arrested Hollis Deshaun King for drugs. The suspect they were chasing, however, was in the other apartment. The cops had no warrant to enter the wrong apartment. The question for the court: Can cops claim "exigency" when they created the exigent situation by knocking on the door, then busting in when they thought evidence was being destroyed? The Kentucky Supreme Court said this type of evidence was inadmissible.

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