Order, technology, and the constitutional meanings of criminal procedure.

Author:Crocker, Thomas P.
Position:III. Kentucky v. King and the Constitutional Meanings of Criminal Procedure through V. Conclusion, with footnotes, p. 714-743 - Symposium on Cybercrime

    Three primary themes emerge from constitutional meanings constructed to facilitate order-maintenance policing. One is that the Supreme Court deems citizens to be empowered to take constitutional responsibility for their interactions with police power. Because citizens have autonomous agency, the Court, adopting a robust image of the liberal self, constructs the citizen as being in control of her own responses, of the police interaction, and of the means to assert her constitutional rights. Second, the Court places consent at the heart of the person's engagement with police. If a person knowingly discloses information to another, then one is imputed to have consented to its further disclosure to the police. If a person deviates from scripts that construct the norms of interaction with the police, then she is construed to have consented to the search that follows. Third, constitutional rules must afford police ample discretion to control expanding conceptions of visibility. These are central elements of constitutional doctrine in service of order-maintenance policing. They are the constitutional meanings by which the Court will construe the future constitutional doctrine applicable in the world after Jones. These constitutional meanings are on display in King.

    In Kentucky v. King, (133) eight Justices joined an opinion that expanded police authority to enter a private dwelling without a warrant when officers suspect the imminent destruction of evidence they seek to obtain. In this one case, many elements necessary to discretionary order-maintenance policing are on display, suggesting just how pervasive the police-centered perspective is in how the Supreme Court construes constitutional meaning. Among these elements are the importance of exceptions that enable police searches otherwise prohibited under ordinary constitutional rules, the extension of quasi-property interests of police into the interior of the home, the rigidity of conversational norms in the citizen-police encounter, and the responsibility of citizens to vindicate their own constitutional rights without assistance from courts or informed consent. A judicial outlook dedicated to these aspects of order-maintenance policing will struggle to find constitutional meanings that will forestall alteration of "'the relationship between citizen and government in a way that is inimical to democratic society,'" (134) as Justice Sotomayor suggests is necessary to face the impact of technology on police practice.

    In King, police officers conducted a controlled purchase of crack cocaine outside a Lexington, Kentucky apartment building. But matters went awry. After the buy was completed, the nearby arresting officers lost sight of the suspect who was presumed to have entered an unspecified apartment. (135) In pursuit, officers focused on one apartment because they smelled burning marijuana emanating from it. (136) As the opinion relates, one officer testified that police banged loudly on the door and announced "'Police, police, police,'" "'could hear people inside moving,'" and decided to kick in the door. (137) Marijuana was present in the front room and the officers performed a "protective sweep" of the whole apartment, revealing further contraband and cash. After indictment, King moved to suppress the evidence obtained during the warrantless search of the apartment and eventually found a receptive hearing in the Kentucky Supreme Court. Assuming, without deciding, that exigent circumstances existed, the Kentucky Supreme Court suppressed the evidence, concluding "it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances." (138)

    The Supreme Court reversed, writing, "Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." (139) To arrive at this conclusion, many of the elements of order-maintenance policing are in full view: the police have an interest in preserving evidence that cuts into the privacy of the home, the needs of law enforcement take priority over any discussion of privacy, and the discretion to pursue consensual encounters and to interpret citizens' responses receives judicial deference. Because law enforcement objectives overwhelm all other concerns, the Court's opinion provides both flexibility and deference to police practices, rejecting the idea that police should be restricted from bootstrapping exigent circumstances as a way of circumventing the warrant requirement.

    What is significant about Justice Alito's opinion is not just that it "arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases" (140)--the doctrinal takeaway as described by the dissent--but that the opinion represents a mature manifestation of the extent to which police exigency, in the home or elsewhere, dominates constitutional considerations. But exigency is not a fact to be discovered in the world independent of police conduct and objectives. Exigency is constructed in pursuit of order. Police have an expectation of maintaining order, even within the home, in pursuit of their preventative law enforcement objectives. Thus, even as the Court rejects the idea that a "police-created exigency" would be constitutionally deficient, the Court must construct the constitutional meaning "exigency" will have in analyzing the police-citizen encounter at the threshold of the home.


      Before defending these broad claims with a closer look at the opinion, it is helpful to see how the present opinion stands in explicit contrast to its historical forebears. Justice Jackson's opinion in Johnson v. United States (141) applied to similar circumstances as those in King--law enforcement entered a dwelling without a warrant after smelling burning narcotics. In Johnson, the Court drew the distinction between entry by law and exercise of arbitrary authority. Justice Jackson's opinion emphatically asserted that "[w]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." (142) The alternative, the Court declared, was to live in a police state. "Any other rule would undermine 'the right of the people to be secure in their persons, houses, papers and effects,' and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law." (143)

      Ignoring the dilemma between being "under the law" and a state where police "are the law," the Court in King distinguished Johnson on the grounds that it did not address exigent circumstances. Despite the factual similarities of a warrantless entry after smelling burning narcotics, the Court emphasized that the Government in Johnson "did not contend that the officers entered the room in order to prevent the destruction of evidence." (144) This factual distinction leaves in place the dilemma Johnson presents: either the Court upholds a rule that requires a judge's intervention or we will live in a police state. One way out of this dilemma is through exigent circumstances that permit dispensing with the warrant requirement. By accepting the rule in the form of its exception, the Court can avoid affirming the police state. The danger with this tertium quid is that the relation between rule and exception is a delicate balance. The exception must remain exceptional.

      Under Johnson's dilemma, a constitutional framework that denies the priority of the rule "would obliterate one of the most fundamental distinctions" between the police state and "our form of government." (145) Yet, the exception is not at all exceptional in King. Indeed, it is difficult to determine what is rule and what is exception, as the Court admonishes: "[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." (146) Ordinarily, exceptions to well-ordered rules must be justified. After all, the rule is supposed to be the norm, and the exception the abnormal. But in King the Court protects the exception against "unreasonable" applications of the rule. Such analysis inverts the priority of rule over exception.

      There are two ways of understanding the relation between exception and rule in King. First, one might ask whether the rule and exception are now inversely related, i.e., whether the Court's claim could be rewritten as: "An exception that forces the police to obtain a warrant ... would unreasonably shrink the reach of this well-established rule allowing police to make a warrantless entry to prevent the destruction of evidence." Such an inversion clarifies what is norm and exception based on priorities and expectations of what takes precedence over the other--the need for a warrant or the need for discretionary flexibility. Second, one might conclude that to "unreasonably shrink" an exception is another way of saying that the rule simply has a narrower scope of application. Exceptions narrow the application of a rule, and that is all the Court is expressing: a limitation on the application of the rule. Textual evidence suggests something more like the former option is correct, since the Court concludes that, "the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense." (147) The presence of exigent circumstances is no longer an exception, but a rule unto itself.

      To make a rule of exigent circumstances is to...

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