Monday, February 2, 2015

Knock-knock game replaces warrant requirement

I don’t know how, logistically, this would work, but someone needs to put the Fourth Amendment out of its misery.  Actually, it’s too late for that.  It is already dead.  We just need to bury it and quit talking about it as if it still exists. 

I’ve been down this road before, but let’s briefly recap.  Assume the police believe that you smoked pot in your home, or possessed a medication that wasn’t prescribed to you, or visited an illegal website from your computer, or owned a pornographic video to which a child was exposed, etc.  Further assume the police claim their belief is based on “probable cause” (e.g., an accusation by your neighbor that he smelled pot smoke coming from your apartment, an accusation by your kid’s friend that he saw “naked people” on your TV when he slept over, etc.). 

[Sidebar: for purposes of probable cause, it doesn’t matter whether the accusations against you are true, completely fictionalized, merely mistaken, or whether they fall somewhere else on the reality spectrum.]

Given probable cause, it now follows that you may possess evidence of the crime (e.g., a pot pipe, a pill bottle, internet history on your computer, a pornography DVD, etc.) in your home.  So how do the police get into your home?  Surely they can’t just walk in, can they?  After all, the high courts keep repeating that entry into the home is the “chief evil” at which the Fourth Amendment is directed.  Well, yes, the police can just saunter in, without a warrant, provided they play the knock-knock game.    

Here’s how it works.  The police walk up to your door under the pretense that they want to speak to you about the accusations.  They knock and announce their presence, and then wait a few seconds.  At this point there are only two possibilities: (1) they hear something inside your home; or (2) they don’t hear anything inside your home.  Well, guess what?  It doesn’t matter because, according to Wisconsin’s appellate courts, either result justifies police entry into your home.  How can this be?

If the police hear movement or some type of noise coming from inside, this will cause them “to reasonably believe that [you] were destroying evidence.”  And, if the police don’t hear anything coming from inside, then this, too, will cause the police to believe that you “became otherwise engaged in destroying evidence.”  You see how that works?  The system is set up so the police don’t even have to “testily” anymore; rather, anything they say (including the truth) will be enough to justify their warrant-less entry.  Noise or no noise — it doesn’t matter.

You’re damned if you do . . .

[Another sidebar: What if you had actually answered the door?  Well, it’s rather easy to predict appellate court’s answer.  As I opined in an earlier post, wouldn’t your opening the door and actually seeing the police give them an even better reason to enter your home?  But what if you weren’t at home to answer the door or destroy the evidence?  Well, as the earlier post also demonstrates, that doesn’t matter either.] 

Maybe the most honest thing would be to repeal the Fourth Amendment.  But wouldn’t that just reward the police and the courts?  Well, maybe, but a greater good might come of it.  Right now, the citizenry is like the bad husband who doesn’t care that his marriage is effectively dead, as long as his wife is still physically present when he gets home at night.  In other words, no one cares that our right of privacy is effectively dead, as long as the empty words remain in the constitution.

But until then, at least the courts are giving us some pretty good knock-knock cases.  And it really is all fun and games — until it happens to us. 

1 comment:

  1. What are you supposed to do? What if you are sleeping or in the restroom/shower and don't hear it until they are in your home? What if you perceive it as a home invasion and react accordingly? Or worse yet you do nothing and they still beat or shoot you?