The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Pretty simple and straight-forward language, huh? Those are the exact words of the 4th Amendment, US Constitution (AKA one of the Bill of Rights).
If police want to enter your home, they must be specific as to which premises they want to enter and they must convince a judge there is good cause to believe something specific will be found. If the judge agrees, he will issue a search warrant describing what they expect to find and why they think they will find it. With that, police can even break down the door to get in at that evidence.
But without that specificity, the judge may not issue the warrant, or if he does issue the warrant without satisfying those simple requirements, or if the police enter without a warrant, any evidence they seize cannot be used to prosecute you.
As of a few days ago, that principle of law that has its roots in 500-year-old legal history, is no longer so simple.
On May 16th, the Supreme Court of the United States (SCOTUS). by an 8 to 1 vote, said a cop may break down the door without a warrant simply by pounding on a door, demanding entry and then saying later that they thought that someone inside was destroying evidence.
An average person’s first reaction might be, why not? There’s apparently something illegal going on. And the cop thinks you are destroying the evidence. What’s the point of requiring him to go to a judge and get a warrant to search your home?
Now let’s add one little fact from the real life case.
The cops were there at the door by mistake. They had lost contact with an alleged drug dealer in a chase. When they came to a place where there were multiple apartment doors, they smelled marijuana from behind one and started banging on that door, mistakenly assuming that the fugitive was in there. That’s when they say they heard sounds of drug flushing. That’s when the cops broke down the door without a warrant.
Still, you ask, “Why not?”
Just one member of the Supreme Court says very clearly why not. Here’s what Justice Ruth Ginsburg said in the first paragraph of her dissenting opinion.
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, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.
You may read her entire opinion here.
Now let’s take things one step further.
The previous week, in Indiana, a court said that if the police are breaking down your door without a warrant, you can be prosecuted for physically resisting the invasion of your home, even if you had reason to be afraid that the people breaking in were not really the police but just someone who claimed to be. The fact that they did not have a warrant is no defense.
I smell something . . . and it’s not marijuana.