Sunday, November 30, 2014

Vampires and cops

In my second book I asked: What’s the difference between a vampire and a cop?  Answer: A vampire has to be invited into your home before entering; a cop only has to say he was invited in and the judge will believe him.  And now, it turns out that cops don’t even have to do that much.  In State v. Parisi the cops had “probable cause” to believe that Ms. Parisi was smoking some weed inside her home.  Probable cause is an incredibly low level of proof, but it allows the cops to do a lot of things — except enter her home.  For that, the general rule is that they need an invitation or a judicially-signed search warrant.  (Admittedly, warrants are nearly always rubber-stamped and are nothing more than Fourth Amendment symbolism; worse yet, they sometimes fail to serve even that limited purpose.)

In Parisi, however, instead of using their probable cause to get a warrant, the cops decided to go straight to Ms. Parisi’s home and press an ear to the door.  When eavesdropping, the cop “was positive” that he heard two voices inside.  But when he knocked and said “police” several times, no one answered the door and there was nothing but dead silence. 

The cop then decided to enter the home without an invitation and without a warrant.  Of course, government entry into our home is supposedly the “chief evil” at which the Fourth Amendment is directed.   Nonetheless,  our state appellate court said that this police invasion was okay because “quieting or ceasing their conversation and not answering the door after [the officer] knocked and announced police presence” created “the possibility of the intentional and organized destruction of the drug[.]”  This is also known as an “exigent circumstance” — here, one intentionally created by the police when they knocked and said “police” — and serves as one of the many exceptions to the general rule that the police need an invitation or a warrant before entering a home. 

So, what should the occupants have done?  Should they have been noisy instead of quiet?  Not exactly.  In other cases, police have testified that after they knock and announce their presence, hearing movement or voices inside also causes them to fear that the occupants will destroy the evidence!  But what if the occupants had answered the door?  That might have been the worst of all worlds: wouldn’t actually seeing the police, rather than merely hearing a strange voice claiming to be the police, provide even more reason to shut the door and engage in “the intentional and organized destruction of the drug”?  Of course it would have.  So it was a lose-lose-lose situation for Ms. Parisi.   

In short, the courts have created a situation where all the police have to do is say “police,” and anything the resident does or doesn’t do will necessarily mean that she might be destroying evidence, thus leading to the necessary, police-created exigency justifying entry into the home without invitation or a warrant. 

It would seem, then, that the only time the police actually need a warrant is if there was no one home when they came a knockin’.  After all, with no one inside, there would be no one to hear or see the police, and therefore no one to destroy the evidence.  Surely, in that situation, the police would have to get a warrant before entering the home, right? 

Actually, when the police entered Parisi’s home, they didn’t find anyone trying to destroy the evidence, as they supposedly feared.  In fact, they didn’t find anyone at all!  That’s right, no one was home, yet the court still permitted the warrantless police invasion under the “evidence might be destroyed” excuse.  How?  The court sidestepped the elephant in the room and offered a creative explanation for the vanishing occupants: even though there was one cop at the front door, one cop at the back door, and “several additional officers” and even a “drug-detecting dog” surrounding the home, Parisi and her fellow pot smoker must have slipped out — evading police and canine detection — during a “one to two minute window of time” after the police arrived.

Slippery, stealthy, under-the-radar pot smokers?  I think that teleportation would have been a more likely explanation for their alleged disappearance.  But now the good news: although the police can waltz into our homes at will, at least vampires have yet to obtain a similar all-access pass.


  1. The real problem is allowing the police to investigate under circumstance where there is no reason to justify their presence.The plain view doctrine assumes that the police have a legal right of presence.From the point of lawful presence springs forth the monster of consent. At this point of inquiry,the Fourth Amendment become comatose. Until the courts deal with the plain view doctrine and consent,we will have a suffering 4th Amendment. The pretext doctrine used to be applied to prevent the police from justifying searches upon hunches and guess work. The defense bar has it's work cut out for it.

  2. Excellent piece...and truly terrifying.