The Fourth Amendment: An Endangered Species

From the Washington Post:

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.

What are the possible ramifications of this continued erosion of the 4th Amendment? Radley Balko gives the ugly details:

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.

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