Tuesday, April 3, 2012
Grant T. Herrin (Southern University Law Center) has posted O! Say Can You Smell? Drug Smell Test Taskforces: Police-Created Exigency Doctrine No Longer a Check on Warrantless Search by Police (Southern University Law Review, Vol. 40, 2012) on SSRN. Here is the abstract:
This commentary analyzes how the High Court might address a challenge to police actions in light of its decision in Kentucky v. King. For the purpose of elucidating analytical points, a fictional police program has been concocted – the “Drug Odor Presence Enforcement” Program, or simply, DOPE. Part II explores the historical development of several Fourth Amendment cases, particularly the King case, its facts, the Supreme Court’s holding, and Justice Ginsberg’s dissent. Part III focuses on the Court’s possible analysis of a challenge to the hypothetical DOPE Program. Last, Part IV discusses various logical outcomes and conclusions based upon the analysis.
While the scenario and DOPE Program mentioned above are fictional, they are now not only possible, but the next probable evolution of police enforcement of drug violations under King. The Court’s decision in King was many years in the making, necessitated by a need to resolve an increasing discrepancy between various state high courts and the U.S. Courts of Appeals. Specifically, the courts have disagreed in their application of the “police-created exigency doctrine” as an override of the exigent circumstances exceptions to warrantless searches and seizures. While the Supreme Court’s holding in King that “warrantless entry to prevent the destruction of evidence is allowed where police do not create the exigency through actual or threatened Fourth Amendment violation” seems comforting and even logical, its implications are anything but reassuring. Indeed, the authority of the police (now given more freedom from the Fourth Amendment) conjures images of Nazi storm troopers breaking down the doors of downtrodden citizens of the police-state. In fact, the Court’s extension of discretion to individual police officers contracts the authority, and even the necessity, of a neutral magistrate to the extent that warrants are not even required if the officer so reasons at the time of his entry. Further, lack of a warrant is not even an issue so long as the police acted “reasonably” up to the point they broke down your door.