The Life of the Law Still Requires Logic
Justice Holmes famously declared in The Common Law that “the life of the law has not been logic; it has been experience.“ Justice Alito, in his majority opinion in Kentucky v. King would appear to agree with Justice Holmes, with an added proviso. Justice Alito, like Holmes, emphasizes experience. In emphasizing experience, the majority opinion focuses not on the experience of the private individual subject to searches, but on the experience of police who must respond to the myriad factual situations they daily confront without time to engage in fine-grained legal analysis of where the limits of the Fourth Amendment reside. But, in so doing, the opinion jettisons logic altogether, producing a rule at odds with itself, at least when viewed from the perspective of the rights-holder rather than that of the potential rights-violator.
In what follows, I will briefly sketch why.
1. The Court provides the following rule to govern the case: “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” The alternative rule—the one that I think would be a more reasonable account of Fourth Amendment limitations on state power—is stated and rejected as “unreasonable”: “[A] rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.” If the latter would “unreasonably shrink” an “exception,” already something of an odd construction, then what would count as a violation of the Court’s rule? (And to register the oddity of worrying about shrinking an exception, is not the burden usually on the “exception” to justify its reach, after all the rule is supposed to be the norm, and the exception the abnormal—or is the fact that the Court is worried about protecting the exception against “unreasonable” applications of the rule mean that the rule and exception are now really in an inverse relation?). How would the police ever engage in or threaten to engage in a violation of the Fourth Amendment under circumstances that would lead to a warrantless, forcible entry, especially during a narcotics investigation?
Let’s posit that warrantless, non-exigent, forcible entry after knocking and loudly proclaiming “police, police, police” would count as a violation of the Fourth Amendment. Let’s dispense with another possible scenario: if police failed to knock and announce, with or without a warrant, and forcibly entered, then there would also be a Fourth Amendment violation. But, this situation could not be a police-created exigency since there was no announcement of their presence through which they could be “engaging or threatening to engage” in lawless conduct. This conduct is simply kicking in a door, and therefore another clear Fourth Amendment violation. So knocking and announcing is a necessary condition for police created exigency. But once police presence is announced, especially in a drug case, are there any practical circumstances under the Court’s rule that will count as a Fourth Amendment violation? Is there any circumstance in which the police-created exigency (where exigency need be no more than police fear that “evidence” might be destroyed) will not count as an exigency justifying warrantless entry? The short answer is: No.
In the circumstances of this case, and under the criteria of no “actual or threatened violation of the Fourth Amendment,” six basic outcomes are possible after police knock and announce their presence (there may be variations on each of these 6, but not to such an extent as to undermine the basic point here): (1) the occupants are quiet as mice and the police simply go away (how long can the police stay outside the door, and how long must the occupants assume their mouse-like demeanor is unclear); (2) the occupants are quiet as mice, the police enter, and then say they heard something that led them to fear destruction of evidence (being quiet as mice is very difficult, after all); (3) the occupants make regular household noises, and the police enter claiming they heard something that could be construed as destruction of evidence (and regular noises might be quickly flushing the toilet because one has to exit the bathroom, where one as engaged in private, household activity to answer the door and would most certainly include the water-related noises the lady of the house might make when taking her “daily sauna and bath” as Justice Scalia described the paradigm of household privacy) (see this fantastic exchange with Bernard Harcourt on flushing); (4) the occupants make noises because they are busy draining and flushing their stash and the police enter to discover their worst fears realized. Under none of these circumstances is a warrantless, forcible entry not exigent. And, only under number (2) is there a “threat” to engage in warrantless conduct, but the “threat” or the “engaging in” is entirely subjective and unknowable by the occupants of the house. So far, then, no situation in which the police kick in the door counts as possible police behavior violating the Fourth Amendment under the majority’s rule. That is the case only if we ignore two more, rather implausible, options: (5) the occupants are quiet as mice, the police enter, and the police admit that they did so just for kicks, so to speak (that is, they admit to entering without any exigency and without a warrant); (6) after knocking and announcing, and “without a warrant or any legally sound basis for a warrantless entry, [the police] threaten that they will enter without permission unless admitted.” According to the opinion’s footnote 4, “[t]here is a strong argument to be made,” that the exigent circumstances rule should not apply here (though not a decisive argument). But (6) is an unavailing situation in light of the continuity, and near identity from the perspective of the police, of (2)-(4), especially given the squirrely language of “any legally sound basis for a warrantless entry,” which depends on the Court’s own construction of what might be a permissible basis—e.g., (2) and (3) being indistinguishable from (4). The police will be trained to make no such threats (and certainly not to admit to them if they did), and (5) is implausible on its face.
So, where does this breakdown leave us? Unless I’m missing something, here’s what follows in cases like this one: nothing will plausibly count as fulfilling the conditions for an unconstitutional forcible, warrantless entry under the Court’s rule governing police-created exigent circumstances.
This conclusion creates an odd logical space for a rule protecting Fourth Amendment privacy in the home. Unless, that is, the concern over “unreasonably shrink[ing] the reach of this well-established exception to the warrant requirement” is really about “reasonably” protecting the reach of an emerging rule that police must simply act reasonably, warrant or no. In which case, smelling the burning marijuana furnishes a basis at least for reasonable suspicion, giving police under footnote 4 a “legally sound basis for a warrantless entry,” so long as the Court construes the operative rule as requiring the police to act reasonably in the circumstances. But if nothing can count as violating the rule regarding police-created exigency, then the police may simply knock, announce, and enter. The exigency exception becomes its own rule of permissive police practice. Stated in one more way, there will always be exigency justifying warrantless entry when police knock, announce, and fear destruction of evidence, and there are no circumstances in which persons can plausibly exercise their Fourth Amendment right to privacy. The “ample protection for the privacy rights that the Amendment protects” Justice Alito assures us exists turns out to have no content–a disappointing logical sleight of hand.
What does this opinion do? Linda Greenhouse in the NY Times, wrote that “what the court held, in an opinion by Justice Samuel A. Alito Jr., is that warrantless entry to prevent the destruction of evidence is justified.” Orin Kerr disagrees, urging that “[t]he Court did not consider whether the warrantless entry was constitutional,” but merely “considered the right test for police-created exigent circumstances.” I would like to use a line from the Coen Brothers film, O’Brother, Where Art Thou?—“Well, I’m with you fellas.” I think both can be right. Kerr provides a correct description of the question the Court “considered,” while at the same time, there is good evidence to say the Court “decided” that the warrantless entry is justified. There are three bases in the text for this claim: (1) in stating the rule of the case at the beginning of section III.A, Justice Alito writes “[w]here, as here, the police did not create the exigency,”; and (2) after disclaiming at the beginning of section IV.A. the need to decide whether exigent circumstances existed in this case, the opinion concludes the section by describing the testimony of Officer Cobb and stating: “Given that this announcement was made after the exigency arose, it could not have created the exigency”–a statement that seems to affirm the existence of the exigency; (3) the Court states “we hold that the exigency justified the warrantless search of the apartment.” All that is left for the lower court to do is to turn the assumption that Officer Cobb’s testimony is sufficient for exigency into a decision that it is so—and the Supreme Court has in effect already decided that the exigency exists anyway. The Court mixes assumption with declaration in a way that makes it plausible to think that the Court considered the question of the right rule and also (essentially?) decided that the exigency exists in these cases. Given my analysis in Section 2, how could the “exigency” not exist in such cases? So the opinion both considers and decides the question of rule, and does not consider but likely decides the question of application.
I could write a whole blog post about the problems of section III.D. As Linda Greenhouse notes, for example, when the police show up at your door, is it even remotely plausible to think “they do no more than any private citizen might do”? I suppose that if the point is that anyone at all “might” knock on your door, then the point is trivially true, but entirely irrelevant. But to get to my point directly, I want to point out the logical contradiction in the conclusion this Section makes. Justice Alito admits that “the occupant has no obligation to open the door or to speak.” It seems plausible to think that the absence of this obligation is based on the individual’s right to liberty and privacy—one cannot be forced to consent. But if that is so, then a person’s refusal to answer the door is equivalent to “stand[ing] on [her] constitutional rights.” Yet, the Court—rather unpleasantly I would add—claims of those who stand on their constitutional rights in this manner have “[chosen] not to stand on their constitutional rights.” This is a logical contradiction. Something cannot both be a choice to stand on a right and not be a choice to stand on a right. I don’t see any way around this. Moreover, and regarding the substance of the right, Justice Alito quotes a prior decision instructing that in consensual encounters a person “may go on his way” and need not even “listen to [police] questions at all” (much less be compelled to answer). If we generalize this as a right to “go about one’s business,” which may include any number of private activities in the home, then we have the problem generated under Section 2. A person’s decision to ignore the police and go about her business in the household creates the conditions for an exigency that belies her freedom to go about her business. So within the substance of the purported right, in light of the Court’s rule regarding exigency, the Court commits another logical contradiction. These are the formal logical problems with the opinion—and they are serious.
I lack the skill that my friend Scott Aiken has with informal fallacies (and if you haven’t seen his blog, The NonSequitur, I highly recommend it to you), but there are at least a few in this opinion. I will only gesture, as this post is long, and I am increasingly inclined to alter my summer writing plans to allow time to write another article on the Fourth Amendment. But, I count at least one straw man and two non-sequiturs in addition to another formal problem with the relation of contraries. One of the more disturbing non-sequiturs comes with the final sentence of this key section (III.D): “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.” This claim sounds inappropriately religious in its finger-wagging admonishment to the private citizen who “elects” to go about his business, but in so doing has only himself to “blame” for the police entry. Moreover, the rhetorical form “the person who elects X, has only himself to blame for consequences Y” is usually (often) used only when the conditions of “electing” X are illusory. At the very least, it is an odd and questionable rhetorical use of non-sequitur to employ in a Supreme Court decision.
As I suggested in my prior post on this case, and argue elsewhere, Fourth Amendment protections often depend on whether the Court focuses on privacy or on guiding police practice. But in either case, the life of the law requires both experience and logic.