Posts Tagged ‘search and seizure’


A King’s Castle?–Part II

Wednesday, May 25th, 2011

As we discussed earlier, the Supreme Court’s ruling in Kentucky v. King raises some interesting questions.  Just how secure is a person in their home from warrantless entry by the police?
Question: At what point do police officers unlawfully create exigent circumstances, to the extent that they cannot rely on those exigent circumstances to enter a home without a warrant?
When they create the exigency thereby violating the 4th Amendment.  (“Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and this allowed”–Justice Alito, writing the majority opinion.)
Question: What types of noise are suspicious enough to justify the exigency?
If police have their ear to a door listening for “suspicious sounds”, seemingly anything could justify their position.  For example, if they hear the sound of a toilet flushing, the police may believe that evidence is being destroyed.  On the other hand, is the sound of a toilet flushing all that unreasonable in a home?  Certainly, there can be several perfectly innocent reasons to flush a toilet.  Secondly, what if the officers hear NO noise?  Will that be construed as a guilty person sitting quietly waiting to attack the cops?  Does perfect silence indicate criminal conduct or no criminal conduct?  What types of noises indicate crime is afoot…a blender?  A microwave?  Several dogs barking?  A TV commercial with gunfire?  The fear among many people is that officers will try to justify any type of noise as the type which requires warrantless entry.
And that is precisely why this ruling is so important.  The implications reach into the most secure place we have, our homes.
(Disclaimer: This post does not constitute legal advice nor does it create an attorney-client relationship.)

A King’s Castle?–Part I

Wednesday, May 18th, 2011

(This blog is the first in a series that will focus on the U.S. Supreme Court’s decision in Kentucky v. King.)

Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.


The Supreme Court has issued a ruling in Kentucky v. King, an opinion that many find worrisome.  The decision came down 8-1, with Alito writing the majority opinion.  Ginsburg was the lone dissenter.


Police officers in Lexington, Kentucky followed a suspected drug dealer to an apartment complex.  They smelled marijuana outside an apartment door, knocked loudly, and announced their presence.  When the officers began knocking, they heard noises coming from inside the apartment.  The officers believed that the noises were consistent with the destruction of evidence.  The officers announced their intent to enter the apartment, kicked in the door, and found the Defendant (whose last name was King) and others.  The officers did not have a warrant to enter the apartment. (As it turns out, the suspect they were originally chasing was not in the apartment.) While conducting a protective sweep of the apartment, they saw drugs in plain view and found additional evidence during a subsequent search.  Defendant filed a motion to suppress, which the trial court denied because it found that exigent circumstances justified the warrantless entry.  Several appeals followed, leading the case up to the U.S. Supreme Court.


The Court held that the police could enter the apartment without a warrant, because after they knocked on the door and announced their presence they heard noises inside that sounded as if drug-related evidence was about to be destroyed.

1. The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the 4th Amendment

2.  Assuming that an exigency existed here, there is no evidence that the officers either violated the 4th Amendment or threatened to do so prior to the point when they entered the apartment.

3.  Any question about whether an exigency existed is remanded back to the Kentucky Supreme Court.

Ginsburg’s Dissent

In her dissent, J. Ginsburg said, “[t]he Court today arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases.  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind thay they had ample time to obtain a warrant.”  She continues:

In no quarter does the 4th Amendment apply with greater force than in our home, our most private space, which, for centuries, has been regarded as “entitled to special protection”…How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?

To be continued…

As it turns out, King was not afforded much 4th Amendment protection in his castle.  Remember, he was not the person the officers were originally chasing.  Our next post will raise a few more questions about the implications of this ruling.

(Disclaimer:  This blog does not constitute legal advice nor create an attorney-client relationship.  If you have been charged with a crime, please consult with an attorney to discuss your options.)

Matthews Law Firm, P.A. practices criminal defense in the Bartow, Lakeland, Winter Haven areas.

Criminal Blog Week Day 4: “No Refusal” DUI Roadblocks

Thursday, April 14th, 2011

“No Refusal” DUI Roadblocks

The Bill of Rights and the Florida Constitution are commonly quoted to guarantee each person freedom from unreasonable searches and seizures.  Over the years, American jurisprudence has focused much more on the word “unreasonable” rather than “freedom.”  Traditionally, the U.S. Supreme Court has decided what is “reasonable” by balancing government interests with personal liberty.  A close examination of that balancing process would require a significant (i.e., long and boring) analysis.  Here, it is sufficient to say that the importance of the government interest is balanced against the degree of intrusion upon the individual.

With regard to standard DUI roadblocks, the Florida Supreme Court held that they can be implemented without violating the U.S. or Florida constitutions.  Noting that stopping a car is “unquestionably” a seizure under the Constitution, the Court used the Balancing Test to compare the government’s interests against the individual driver’s constitutional rights.  The Court held that, “The state’s compelling interest in protecting the public from drunk drivers outweighs any minimal intrusion into their privacy which a proper roadblock might cause.”  State v. Jones, 483 So. 2d 433 (Fla. 1986).

The government’s typical public relations justification for DUI roadblocks is, “We must protect you.”  The government avoids talking about the “minimal intrusion” part of the equation.

The Matthews Law Firm, along with criminal defense attorneys in Bartow and throughout central Florida, are now confronted with a new challenge to personal freedom and liberty.  Building on the Supreme Court’s approval of DUI roadblocks, police forces in central Florida are joining other states in implementing “no refusal” DUI roadblocks.

The “refusal” typically refers to the driver “refusing” to help police convict him.  It apparently has confounded police forces when a person, in this case not stopped for any wrong-doing, chooses to stand on his rights to be free from unreasonable searches, be free from unreasonable seizures, be free from self incrimination, have advice of an attorney, or have Due Process in his interaction with the government.

In Florida, if a person arrested for DUI refuses to submit to a breath test, there are already penalties set out by law.  In Florida, the law also sets out when and how the government may obtain a blood sample in a DUI case.

The “no refusal” DUI roadblock initiative seeks to get around these laws.

At a “no refusal” roadblock, police seek to force a person to submit to a breath test by threatening to forcibly take blood upon refusal of a breath examination.  In case of a refusal, police have a judge standing by, ready and waiting to sign a pre-printed fill-in-the-blank search warrant to draw blood.

Many are alarmed at the idea of judges simply rubber-stamping police investigations based on no individual suspicion, much less probable cause.  After all, police “hunches” have long been rejected as legitimate grounds for a warrant.  However, a much more sinister danger posed by this doctrine is the idea that demanding one’s constitutional liberty is, all by itself, probable cause to pierce those very rights.

Piercing a person’s body is not a “minimal intrusion” or a “minor inconvenience.”  Coercing a person to forfeit their rights is unconstitutional, whether done at the point of a needle or the barrel of a gun.  The coercion itself is the evil.  A police force unrestrained by law and exempt from constitutional limitations does not make anyone safer.