Monday, May 16, 2011

The cherry on the icing of the cake of my day.

Apparently the nine black-robed Gladys Kravitzes of the U.S. Supreme Court had all weekend to sit around pondering how they were going to top the monumental gaffe made by the Indiana supremes in Barnes v. Indiana.

Showing up bright-eyed and bushy-tailed for work this morning, they gave it the old college try.

Long story short, the po-po in the case in question were in leisurely pursuit of an ambling suspect. Rounding the corner, they were faced with two apartment doors through which he could have gone. The smell of burning doobage was wafting from the one on the left, so they knocked. Nobody answered and, hearing movement inside, they busted it down, rather than going and fetching a warrant based on the probable cause of the smell of burning doobage.

Their dude wasn't inside, having gone through the other door, so they settled for the Second Place trophy of arresting the guy who was. "Sucks to be him", ruled SCOTUS in an eight-to-one decision, with only Ginsburg (?!) on the side of the angels. (Et tu, Clarence?)

This is bad farce. The only thing worse than an evil, sinister police state is the Three Stooges police state we're going to wind up with. "Hey, Moe! You're under arrest!"

37 comments:

Tasso said...

Any sufficiently stupid police force is indistinguishable from evil.

Alan said...

Agreed. They're too stupid to be evil but you won't be able to tell the difference.

Boris da Bastid said...

The real disgusting thing is that most of your sitcom watching Americans are going to point out that the subject had been breaking the law, not giving a damn about his rights. Rarely does the majority in this country care if someone else's rights are violated. But, let it happen to them...

Turk Turon said...

"Do it to Curly! Do it to Curly!"

Tam said...

LOL!

"Oh, a wise guy, eh? Take him to Room 101!"

Turk Turon said...

Water-boarding with seltzer bottles, I can see it now. And those "conk!" sound effects.

jetaz said...

"Never attribute to malice that which is adequately explained by stupidity. But remember, any sufficiently advanced stupidity is indistinguishable from malice."

Jim said...

"How do you plead?"

"Woob woob woob woob woob!"

Jim

perlhaqr said...

I guess the ass badgers in the Indiana court were just a couple days ahead on the "shit on the 4th" curve.

Crotalus (Dont Tread on Me) said...

Actually, we're getting the worst of the worst: sinister AND stoogian.

Montie said...

Tam,

Crap. They're going to keep at this stuff until they make me retire. This brings to mind a case I had involving a smell and holdiing off on knocking while we scrambled for a search warrant.

I was out canvassing a neighborhood for possible witnesses the morning after a particularly brutal murder involving a bat, that took place right in the middle of a quiet residential neighborhood street.

As I got out of my unmarked car, I caught a strong whiff of a chemical smell that I had come to associate with the manufacture of methamphetamine. I called a couple of other detectives and we located the house it was emanating from. Although one of the other cops really wanted to kick the door based on, you guessed it, "exigent circumstances", I saw no reason why one of us couldn't go type up a quick affidavit and get a judge to sign it, while the other guys kept a low-key eye on the place.

Guess what, we busted the meth operation and found that they were connected to the homicide from the night before. No bullshit exigent circumstances needed.

Tasso said...

God bless you Montie, but I'm running low on hope.

Moogie P said...

Adieu fourth amendment. Among other things.

John B said...

Montie, breathe!! Count to 10, you're dealing with wookies here. Idiots everywhere else!
We're caring, impetuous, and very emotional. Who else would stick with a scoundrel like Han Solo?

We're like hippies with hair all over.
And Bowcasters!

Anonymous said...

way to sign off on a pile of dead cops.

i know i'll fight back - they had me at david pyles. :/

staghounds said...

"The evidence is on fire" has always been an exigent circumstance permitting entry to search for and seize the burning evidence, as well as any other evidence in plain view. Even the lawyer-written article admits it.

And both the USSC and KYSC recognise it in this case.

When you read the actual case, it's all about the question of whether the police created the exigency by knocking and announcing themselves.

The USSC announced a new rule helping define manufacture of exigency in this case, but it did not otherwise change 4th. Amendment law.

Tam said...

staghounds,

"When you read the actual case, it's all about the question of whether the police created the exigency by knocking and announcing themselves. "

I got that.

You know quite well that I get all wookie-suiter on topics like this. My default answer will practically always be "I'm agin' it."

At least it will keep me from ever having to sit on a jury. ;)

Tam said...

(To clarify, I'm generally against malum prohibitum laws, but if we're going to have them, their enforcement should be as constrained as possible: If they busted up into that guy's house in hot pursuit of Guy A, and found Guy B smoking a joint while dancing naked around a machine gun draped in a Nazi flag, and Guy A wasn't there, they should have to tip their hats and leave and say "Sorry, wrong house."

Accidentally stumbling across a rape or a dead body is one thing, but this is another thing altogether. I'm not willing to weaken the Fourth Amendment one iota over the Wo(S)D.)

atlharp said...

The Fourth amendment as well carries with an implication in our modern society in that it helps protect police from litigation as well. Seriously, this is a bad for both parties involved in that kicking a door down and subsequent injury from an over-eager law enforcement official does not leave a tremendous amount of leeway from an over-eager civil suit. Also, that pesky Castle Doctrine when lets say you can't hear someone identify themselves as police. I swear there will be some blood shed, and it will be upon the hands of our Court System.

Grumpyunk said...

So I guess the Indiana law won't be getting overturned on appeal if it ever makes it to the SCOTUS?

Looks like I'm gonna have to get me a Wookie Suit.

Comrade Misfit said...

I also read the case. There was no indication that the suspects were destroying evidence, no sounds of toilets flushing. All the cops heard was "movement".

So if they bang on your door and you get up to walk to the door and they hear your footsteps, that's "movement" and they can then commence with busting down your door.

I doubt very much that the Supremes who were on the bench fifty years ago would recognize what passes for 4th Amendment protections nowadays. We've edged over into being a police state and, sadly, most of our fellow citizens are cheering about it.

Bram said...

Am I agreeing with Ruth Bader Ginsburg?

Did I take a wrong turn in the quantum tunnel?

Ken said...

Welcome to the secesh. Cookies'll be out of the oven directly.

Jake (formerly Riposte3) said...

What really gets me is that there was no need to knock on the door before getting a warrant in the first place. They were looking for a person, not evidence. They knew he had to be in one of two apartments. He's not going anywhere at that point without being seen. Why could they not take the time to get a warrant for each apartment to search for the suspect? Once they had the warrant, they could knock on the door and they would have the warrants to flash if the owners didn't cooperate.

Is there any rule that says they have to bust down the door if they have a warrant, even if the homeowner cooperates?

perlhaqr said...

That concrete bunker is starting to sound like a better and better idea.

Bubblehead Les. said...

I'm buying more Ammo and "Toys", 'cause the Swirl down the Bowl for what's left of the Republic is getting Faster and Faster.

Free Legal Advice: Get your Vehicles up to Snuff, stock up on "Beans, Bullets and Band Aids", and start carrying Hi-Cap Defensive Tools, 'cause it looks like the Sheep Dogs have decided to join the Wolf Packs. Thanks SCOTUS!

GuardDuck said...

Scrubbing bubbles court system: clears your freedoms so the politicians don't have to.

Sport Pilot said...

Hot pursuit allows an officer to make entry to a building/dwelling place they visually observe the suspect who is in flight enter. Emphasis here is on “observe” as in see, not suspect. Plain view or smell allows a LEO to enter and hold a building/dwelling place and search a vehicle. We can do a protective sweep of a building/dwelling but not a search. For a lawful search you must either have effective consent or a search warrant. Given that consent may be withdrawn or vigorously challenged my preference leans toward taking the extra steps to secure a search warrant while the location is secured.
I am comfortable with entering a residence on a knock and talk where the LEO has smelled marijuana or chemical precursors leading him to believe it is a meth lab, but of the two I would prefer a search warrant and raid team for the possible meth lab as not all officers have the training or equipment to safely handle a meth lab. The frequency of calls for service where LEO(s) are at a residence or apartment complex and smell marijuana, either in its bulk state or while burning is surprising.
If you will note, other than hot pursuit or a search warrant I have not mentioned forcible entry. Warrantless entries to a residence can sometimes be justified in incidences where a person may be inside, sick or injured and the officer has exhausted all possibilities indicating that they are not inside. Still, even though I have saved a number of lives in doing such an entry, as well as finding deceased subjects I dislike having to do such entries. The recent court rulings discussed her trouble me. I’m glad I’ll be retiring in less than a handful of years.

staghounds said...

Curly is the third stooge.


Curly has ALWAYS been the third stooge.

The officers smelled burnt marijuana in the hallway just after the suspect closed his door, and slelled marijuana smoke coming from behind the door on which they knocked.

I think "evidence was on fire" applies.

Cobb testified that this, combined with the movement noise, led him to think that evidence was about to be destroyed.

And in fact it WAS on fire, the guest was "smoking" marijuana when the police entered.

The plain view seizure is fine by me. I can't see it as unreasonable that if a police officer is there, even if he's just walking down the street and sees or smells someone committing a crime through an open window, that he grab the burning evidence.

Tam, it's often bothered me that all crimes seem equal for Constitutional purposes, and I like the distinction you'd draw. Problem is the legislatures could, but won't, make those distinctions in drug crimes, with rare exceptions.

staghounds said...

And no, there is no absolute requirement to knock down the door. Although the warrant is (in my state) a command from the court to do something, practice is that not serving the warrant is accepted if there is a good reason.

BS Footprint said...

Stupid, evil, no matter: your door's still busted. And so are you.

In the brave new world, a man's home is his castle^h^h^h^h^h^h evidence cache.

If people keep electing the kinds of politicians they've been electing, it ain't gonna get better... it always cracks me up that average people think Libertarians are out on the fringe... gotta keep up that war on drugs, I mean, we don't want people driving around while stoned!!!!!

BS Footprint said...

jetaz said...
"Never attribute to malice that which is adequately explained by stupidity. But remember, any sufficiently advanced stupidity is indistinguishable from malice."

Erm...

I disagree.

BS Footprint said...

Oops, I half-disagree! Hit the publish button too soon! :D

perlhaqr said...

Sheriff Don Hartman, Sr. Newton County Indiana Sheriff: "If We Need to Conduct RANDOM HOUSE to HOUSE Searches We Will."

http://www.mikechurch.com/Today-s-Lead-Story/in-sheriff-if-we-need-to-conduct-random-house-to-house-searches-we-will.html

Anonymous said...

So let me see if I get the logic of this one right. Po-po observe dirtbag #1 selling drugs outside, and give chase. He's runs into a building, and po-po can't determine if he is behind Door #1 or Door #2 (too bad that there was no Door #3 and Bob Barker present to tease them). So they smell burning doobie and end up breaking down semi-dirtbag #2's door after hearing someone move behind it, on the theory that they were worried that evidence was being burned. So the logic apparently is that someone trying to avoid the po-po and hide evidence is going to light up enough Mary Jane that it can be smelled in the hallway, as if that would somehow or other throw off the po-po? If I were a judge, I'd laugh that sorry-ass excuse for violating the Constitution out of court.

Oh, and as for the Sherriff of Nottingham, Mr. House-to-House Search, I'd advise him to include body bags among his entry teams' standard equipment, and bone up on how to write a good condolence letter to the wives of his cops...the fascist arsewipe.

Stephen R said...

Okay... legal question. For the sake of discussion, let's set aside:
1) the specifics of this case
2) whether or not pot **should** be illegal
3) the court decision from this particular case decision (i.e. let's assume it's two months ago and the decision hasn't happened yet.)

A police office is walking through an apartment building. Why? Doesn't matter. Maybe he lives there. Maybe he's visiting a friend. Maybe he's looking for a perp.

He turns a corner and right there, in the hallway, he can **clearly** smell smoke from the burning of an illegal substance.

Police do have certain authorities when they just happen to stumble upon an illegal act. What are the police officer's rights/authority here? Can't he bust the door in on the basis that an illegal act is clearly happening and the evidence is publicly visible (the smell in the common hallway)?

Sure he can wait for a warrant, but the evidence is in the act of being destroyed.

I guess what I want to do is separate this from the "hot pursuit" aspect of the case. If a cop catches you smoking pot, he can bust you, can't he?

Stephen R said...

In the above example/question, let's also assume that the smell can clearly be traced to a particular apartment (a single door at the end of a hallway). So no question of busting in the wrong door.