A 4th Amendment loophole

Opinion: May 30, 2011 at 12:00a.m.

Los Angeles Times: One of the most important functions of the Supreme Court is to put legal limits on police excesses. But the court failed to fulfill that responsibility when it widened a loophole in the requirement that police obtain a warrant before searching a home.

The 8-1 decision came in the case of a search of an apartment in Kentucky by police who suspected illegal drugs were being destroyed. The police, who said they smelled marijuana near the apartment, had knocked loudly on the door and shouted, “This is the police.” Then, after hearing noises they thought indicated the destruction of evidence, they broke down the door.

Police don’t need a warrant to enter a residence when there are “exigent circumstances,” such as imminent danger, the possibility that a suspect will escape or concern about the immediate destruction of evidence. But in this case, the police actually created the exigent circumstances that they then capitalized on to conduct the warrantless search.

According to Kentucky’s Supreme Court, the exigent-circumstances exception didn’t apply because the police should have foreseen that their conduct would lead the occupants of the apartment to destroy evidence. Overturning that finding, Justice Samuel A. Alito Jr. wrote for the court that as long as the police officers’ behavior was lawful, the fact that it produced an exigent circumstance didn’t violate the Constitution. That would be the case, Alito suggested, even if a police officer acted in bad faith in an attempt to evade the warrant requirement.

As Justice Ruth Bader Ginsburg pointed out in her dissent, Alito’s reasoning “arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases.”

Allowing police to create an exception to the warrant requirement violates the 4th Amendment. That is how the court should have ruled.