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. Follow her on Twitter.

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."

Seriously? That's the best you've got, guys?

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.

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?"

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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