j u s t c r i m

justice ginsburg, dissenting

Justice Ginsburg, dissenting - Kentucky v. King, 563 U.S. ____ (2011):

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. I dissent from the Court’s reduction of the Fourth Amendment ’s force.   The Fourth Amendment guarantees to the people “[t]he right … to be secure in their … houses … against unreasonable searches and seizures.” Warrants to search, the Amendment further instructs, shall issue only upon a showing of “probable cause” to believe criminal activity is afoot. These complementary provisions are designed to ensure that police will seek the authorization of a neutral magistrate before undertaking a search or seizure. Exceptions to the warrant requirement, this Court has explained, must be “few in number and carefully delineated,” if the main rule is to remain hardy. United States v. United States Dist. Court for Eastern Dist. of Mich. , 407 U. S. 297, 318 (1972) ; see Kyllo v. United States , 533 U. S. 27, 31 (2001) . ... [more]

"What Fourth Amendment" (Techdirt) - Kentucky v. King

Techdirt - 4th Amendment? What 4th Amendment? Supremes Say Police Can Create Conditions To Enter Home Without A Warrant -- 'We've been discussing various ways that our government and the courts have been slowly chipping away at the 4th Amendment, what with warrantless wiretaps, searching laptops, TSA agents groping people, etc. And the Supreme Court just took a huge chunk out of the 4th Amendment in saying that police can raid homes without a warrant if there are "exigent circumstances" -- even if those "exigent circumstances" are created by the police themselves...."

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Justice Alito's Majority Opinion in KENTUCKY v. KING ( No. 09-1272 ) decided May 16, 2011

Justice Ginsburg's Dissenting Opinion in KENTUCKY v. KING ( No. 09-1272 ) decided May 16, 2011

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Additional resources for Kentucky v. King:

WSJ Law Blog - SCOTUS Okays Warrantless Search of Apartment that Smells of Dope

SCOTUSblog - Kentucky v. King holding - "The exigent circumstances rule applies when the police do not create the exigency by engaging in or threatening to engage in conduct that violates the Fourth Amendment.  Judgment: KENTUCKY SUPREME COURT REVERSED, 8-1, in an opinion by Justice Alito on May 16, 2011. Justice Ginsburg filed a dissent."

SCOTUS Official Slip Opinion - Kentucky v. King

"the supposed right against unreasonable searches and seizures"

Davies, Thomas Y., The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment 'Search and Seizure' Doctrine (2010). Journal of Criminal Law & Criminology, Vol. 100, No. 3, pp. 933-1041, 2010; University of Tennessee Legal Studies Research Paper No. #137. Available at SSRN: http://ssrn.com/abstract=1758857

This article presents a legal-realist account of the century-long life span of modern Fourth Amendment doctrine....

The article concludes that, notwithstanding the seeming mass of search and arrest precedents, the supposed right against unreasonable searches and seizures has now been reduced to little more than a rhetorical apparition. Indeed, the destruction is so complete that the number of government certiorari petitions regarding search and seizure cases has decreased to a trickle. So little is left, it seems doubtful the right can be revived.

"this slim majority ... hurling bombs at our democracy"

"From behind the imposing marble walls of Washington's majestic Supreme Court building, this slim majority of five unelected, unaccountable government officials with lifelong tenure has been hurling bombs at our democracy. They've hit us with decision after decision enhancing the power of corporations at the direct expense of workers, consumers, local communities, our air and water, voters, the elderly, and... well, anyone and everyone who stands up in court to resist the rise of corporate hegemony in America...."

ACSblog - The Roberts Court’s Unabashed Activism on Behalf of Corporations: An Examination by Jim Hightower (Posted Feb 22 2011).  [ Hightower Lowdown / By Jim Hightower.  "Top 4 Victories Handed to Corporate America by the Supreme Court -- So Far" ... "Judicial activism" is way too tame a phrase for what Chief Justice Roberts & Co did here. This was a coup -- a plotted overthrow to enthrone corporate political interests." February 19, 2011 ]

See also "I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. . . . corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."
-- U.S. President Abraham Lincoln, Nov. 21, 1864
(letter to Col. William F. Elkins)
Ref: The Lincoln Encyclopedia, Archer H. Shaw (Macmillan, 1950, NY)

Body Worn Video Devices

Harris, David A., Picture This: Body Worn Video Devices ('Head Cams') as Tools for Ensuring Fourth Amendment Compliance by Police (April 27, 2010). Texas Tech Law Review, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2010-13. Available at SSRN: http://ssrn.com/abstract=1596901

A new technology has emerged with the potential to increase police compliance with the law and to increase officers’ accountability for their conduct. Called “body worn video” (BWV) or “head cams,” these devices are smaller, lighter versions of the video and audio recording systems mounted on the dash boards of police cars. These systems are small enough that they consist of something the size and shape of a cellular telephone earpiece, and are worn by police officers the same way. Recordings are downloaded directly from the device into a central computer system for storage and indexing, which protects them from tampering and assures a defensible chain of custody.

This article explores the good that BWV can do for both the police and members of the public, particularly how these recordings might play a role in assuring that officers comply with Fourth Amendment search and seizure rules. Field tests of BWV in Britain have shown that police used the devices to keep records and record evidence, and that the devices were a uniquely effective bulwark against false complaints. Coupled with a requirement that every citizen encounter involving a search or seizure be recorded, and a presumption that without a recording the factfinder must draw inferences in favor of the defendant, BWV can help resolve disputes over search and seizure activities, and give the public a heretofore unattainable degree of assurance that police officers enforcing the law obey it as they do so. While BWV is certainly no panacea, and presents significant issues of tampering and reliability, it can help bring accountability and rule following to an aspect of police behavior that has largely proven resistant to it.

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