The Washington PostDemocracy Dies in Darkness

Opinion The Fourth Amendment shuffle

Placeholder while article actions load

New Jersey was one of the last states to require police to obtain a warrant before searching your vehicle during a traffic stop. No more. The state’s highest court has ruled that the requirement is just too darned inconvenient.

New Jersey’s highest court has struck down the state’s unusually strict standard for allowing police to search a car without having to get a judge-approved warrant.
In a split ruling, the New Jersey Supreme Court ruled that police don’t have to demonstrate an urgent need to dispense with a warrant when they have probable cause to suspect a car on the road contains evidence of a crime.
Thursday’s decision brings the state’s requirement for warrantless car searches in line with the federal standard, which requires no such exigent circumstances under the so-called “automobile exception” to the Fourth Amendment. Most states follow the federal standard.
The New Jersey high court concluded that imposing the added condition of an emergency was impractically strict and led to an unintended surge of highway stops in which police induced drivers to allow them to look through their cars.

The court at least feigned at caring about the interests of motorists, noting that obtaining a warrant could take an hour or more, leaving the motorist stuck on the side of the road. But as Tim Cushing at TechDirt points out, any motorist inconvenienced by that requirement could simply consent to a search. The motorists who hold out are the ones who want to assert their rights. The court has taken that ability away from them. The court can claim that it’s for their own good, but let’s be real here. This is about saving police officers from the hassle of obtaining a warrant. The police still must have probable cause to conduct a search, but as we’ve documented here at The Watch, that’s a pretty easy burden to meet, especially with drug dogs. And even when the police don’t meet it, there’s little in the way of consequences.

We’ve also noted how people who are aware of and assert their rights are more likely to face hostility and abuse. As Andrew Fleischman writes at the Fault Lines blog, the Virginia Supreme Court has now ruled that asserting your rights may also itself be enough to establish probable cause for a search.

In this case, three police officers were walking by an apartment when they smelled a “cloud of heavy and extremely strong marijuana odors.” They knocked on the door, and the defendant’s mother answered. They asked about the marijuana, and apparently, nothing came of it, because she closed the door and sent them on their way.
Or so she thought. The officers knocked again. This time, the defendant’s mother was obviously frightened—officers testified that she was visibly shaking. Officers asked again for her to incriminate herself by saying that someone was smoking marijuana in her home. She said, “[a]in’t nobody smoking weed in here” and “slammed” the door in the police officer’s faces.
Obviously, this sort of rudeness would not stand for the men who felt entitled to keep knocking until they were granted entry. They knocked a third time. For five minutes, no one answered, and the officers loitered in front of the door. Tellingly, they heard “some movement,” which courts have held to be suspicious. A note to readers confronted with this situation: please remember to stay totally motionless while police bang on your door.
When the mother finally opened the door, one of the officers slipped his hand in the door, slipped past her, and saw a marijuana blunt in “plain view.” He had to rush past her, he said, because if he didn’t push his way into her home she could have destroyed the marijuana her son was smoking before he could get a warrant . . .
Not only did the Supreme Court of Virginia find this behavior completely acceptable, they were openly contemptuous of the mother’s attempt to assert her rights and her attorney’s arguments that the officer’s actions were improper.
The defendant’s attorney tried to argue that the government could not benefit from an exigency that was created wholly by their own actions, but the court pointed out that that rule was eviscerated in Kentucky v. King, a case that held that police officers can knock on someone’s door and burst in if they hear rustling or furtive movements.
Once police knock on a door, the court reasoned, they have every reason in the world to think the occupants will try to destroy evidence.

Defenders of this decision will say that it isn’t the woman exerting her rights in and of itself that led to the search, but that along with the smell of marijuana and her apparent nervousness. But because the courts won’t typically second-guess the motives of police officers, this essentially becomes an instructional on how to conduct a warrantless search. Simply claim to smell marijuana. In states like Virginia and Florida, an officer’s claim to have smelled pot alone is enough to justify a vehicle search. (Although in Arizona, it is not enough to justify a search of your home.) In Texas, it was recently used to justify a cavity search of a woman’s vagina. In fact, in Kentucky v. King, the Supreme Court case Fleischman mentions, the officers only knocked on the door to the apartment in question by mistake. The court found that so long as the mistake was unintentional, it didn’t matter.

So if you’re a cop who wants to search a home without a warrant, simply knock on the door, claim to have heard “rustling around” or to have smelled marijuana. Break in and search the home. If you find something illegal, make your arrests and celebrate your success. Just remember to note what you smelled or heard on your report, and be sure to note that you originally knocked on the door after mistaking it for a different one.

If you don’t find anything illegal, you’re probably going to be fine. It’s expensive and time-consuming for an innocent person to file a civil rights lawsuit over an illegal search. Most won’t find an attorney willing to take the case. Most won’t bother to try. For the few who do, your qualified immunity will make it difficult for them to even get in front of a jury. Again, remember the courts aren’t likely to second-guess your claims about what you heard or smelled, even if your search comes up empty. On the off-chance that your victim somehow gets over those hurdles and gets to trial, you can take comfort in the fact that juries rarely rule against police officers. Finally, if you somehow lose in front of a jury (what bad luck you have!), unless the search resulted in bodily injury, your victim isn’t likely to collect much in the way of damages. And unless you’ve done something really egregious, the city or state that employs you will likely indemnify you. The taxpayers will foot the bill. That’s usually the case with your legal representation, too.

Point is, there’s plenty of incentive for you to bend or break the rules. Busts, seizures and arrests are good for your career. Depending on what you find, frequent searches based on little more than hunches will help you know which hunches to trust, making you a better cop. On the other side, there’s almost no incentive to play it by the book. Take the time to get a warrant and the perps get time to move the drugs. You’ll probably do dozens of illegal searches before someone complains, and once that happens, there’s plenty of machinery in place to both protect you from liability and to prevent the victim from collecting.

This isn’t to say that all cops want to conduct illegal searches.* Only that the courts have provided a pretty easy-to-follow road map for those who do. But that’s sort of the point. Those are precisely the authorities from whom the Fourth Amendment is supposed to protect us.

(*Though let’s be honest, finding ways around the Fourth Amendment certainly makes the job a bit easier. And if the courts have made illegal searches this easy, and mostly consequence-free, at some point you have to question what illegal really means in the first place.)