The Bill of Frights Week Has Commenced!

What could be more frightening than violations of our constitutional rights? But is everything that appears to be a violation actually one? This week, the Bill of Rights Institute will explore some current constitutional issues ripped from the headlines, and delve into some questions about whether rights are being violated. We hope you enjoy their Bill of Frights!

Do Warrantless Searches Violate the Fourth Amendment?

Under what circumstances are police allowed to enter the homes of private citizens? In most cases, a search warrant issued by a judge is needed for any encounter where law enforcement requires access to a private residence. But law enforcement is also bringing to bear another tool–warrantless searches.

Warrantless searches are often a necessary part of combating crime–and particularly those offenders who have opportunities to destroy evidence. When exigent circumstances arise, law enforcement argues, in situations either pertaining to officer and public safety or to the destruction of evidence, police officers must be allowed the flexibility to enter a home without a warrant.

In Kentucky v. King (2011), the Supreme Court ruled 8-1 that law enforcement can enter a home without a warrant given the existence of exigent circumstances. The Court concluded that the warrantless search might still be legal even if law enforcement itself brings about the exigent circumstances (i.e. a knock on a door causes a stirring inside a house and that stirring causes the officers to assume a destruction of evidence is taking place). Justice Alito, writing for the majority, reasoned that “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.”

In her dissent of the King ruling, Justice Ginsberg stated that she found no reason to “allow an expedient knock to override the warrant requirement. Instead, I would accord that core requirement of the Fourth Amendment full respect.”

Ginsberg referred in her dissent to Johnson v. United States (1948), a case similar to King. In that case, the Court stated: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a policeman … If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of [any] case in which [a warrant] should be required.”

Compounding Justice Ginsberg’s dissent are recent news items on botched or mistaken searches conducted by departments around the country. Mistakes happen and, unfortunately, mistakes around searches often entail deadly consequences for both officers and citizens. One serious example happened in May of this year when a raid on the wrong residence lead to the death of Jose Guerena, an ex-Marine who served two tours in Iraq.

As many argue, there are certainly circumstances that require the most temporary shedding of aspects of due process protections. But some argue that when you couple Fourth Amendment considerations with the real potential for mistakes around the country, the need to examine the scope of warrantless searches must be taken seriously. What do you think? Does the existence of warrantless searches fundamentally circumvent the Fourth Amendment?


Article originally appeared on the Bill of Rights Institute Blog.

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