Farewell, Fourth Amendment

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Where consent isn’t freely given, forcible rape is lawful. Such is the logic — if that word can be tortured into applying here — behind the Supreme Court’s ruling in the case of Kentucky v. King, in which the Regime’s judicial branch destroys whatever remained of the illusive Fourth Amendment protection against warrantless searches.

As with most rulings of this kind, the case was a byproduct of the Regime’s ongoing Narcotics Price Support Program. Narcotics officers in Lexington, Kentucky went trolling for patsies in a poor neighborhood that is most likely a preferred fishing hole for such activities. Using an undercover informant, the narcs set up a “controlled buy” of crack cocaine. Once the transaction was through, the merchant headed back to his apartment, which was one of two that were found at the end of a breezeway. The suspect was seen entering the apartment on the right, but the uniformed officers who arrived at the scene weren’t aware of this fact.

After discerning the aroma of marijuana emanating from the door on the left, the officers banged on it insistently and demanded to be let in. They later said that they “could hear people inside moving,” and what were taken to be the sounds of “things being moved inside the apartment.” Fearful that evidence would be destroyed, the officers kicked in the door, finding three terrified people inside. A “protective sweep” — “officer safety” ├╝ber alles, you know — revealed a small amount of crack cocaine and marijuana.

A Kentucky Circuit Court ruled that the evidence seized in this warrantless search was admissible because it “consensual entry” was denied, and waiting to obtain a warrant would permit the destruction of evidence. The Kentucky Supreme Court reversed that ruling, pointing out that audible noises behind a closed door did not constitute reliable evidence “that evidence was being destroyed.” The state Court noted as well that it is impermissible for police deliberately to create “the exigent circumstances with the bad faith intent to avoid the warrant requirement” found in the Fourth Amendment.

Writing on behalf of the Supreme Court’s dominant Authoritarian Right faction, Justice Samuel Alito insisted that the fault resided entirely with defendant Hollis King, who supposedly could have refused to respond to the police (presumably by remaining perfectly silent), or could have come to the door and demanded that the police return with a warrant. “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” sniffed Alito.

“How `secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?” replied Justice Ruth Bader Ginsburg. “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, nevermind that they had ample time to obtain a warrant.”

For several years, Punitive Populists have insisted that the Regime should be permitted to torture people identified as “terrorists,” since such people aren’t entitled to the protection of legal guarantees such as those found in the Eighth Amendment and the Geneva Conventions. After all, we already know that they’re terrorists, and so they shouldn’t be permitted to withhold evidence. After all, the Constitution “isn’t a suicide pact.” Obviously, the same reasoning (once again, assuming that this is the appropriate word) applies to the Fourth Amendment’s purported guarantees against warrantless searches.

There is a sense, I suppose, in which the Constitution is a suicide pact: It has been used to seduce people into thinking that parchment can serve as an effective impediment to power.

2:52 pm on May 16, 2011
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