Under the Fourth Amendment, searches of a person’s home are presumed to require a valid warrant unless there are “exigent circumstances.” The Supreme Court has also, logically enough, held that these exigent circumstances generally cannot be created by the police’s own behavior. The War (On Some Classes of People Who Use Some) Drugs, however, is where the Bill of Rights goes to die. So, yesterday, the Supreme Court upheld a warrantless search of a home in which the police had time to obtain a warrant, but created their own “exigent circumstances” by following a suspect into his apartment complex and smelling marijuana. Nor surprisingly, the opinion overruling those Trotskyites at the the Supreme Court of Kentucky was written by “Strip Seach” Sam Alito. Dismayingly, and demonstrating again that the Supreme Court essentially lacks a real liberal wing, the decision was 8-1, with both of Obama’s appointees in the majority. Ruth Bader Ginsburg, adding to the case that she should stay on as long as she damned well pleases, dissented:

The question presented: May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct. […] That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Ante , at 8. Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity. […] 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?

The key problem with the case, as Ginsburg convincingly argues, is that it’s the latest example of the drift of the exigency exception away from actual emergencies and toward the mere convenience of the police. If the police have time to obtain a warrant and there isn’t an actual emergency, they should be required to obtain one. But when security in the home faces the War (On Some Classes of People Who Use Some) Drugs, it generally loses.

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