These Are Your Rights on Drugs

This week, the Supreme Court continued its long-standing assault on constitutional protections in service of the war on drugs (or, as it might be more accurately described, the war on some classes of people who use some types of drugs).

Kentucky v. King concerned the Fourth Amendment's prohibition on unreasonable searches and seizures. After witnessing a drug deal on the street, police in Lexington, Kentucky, followed a suspect into an apartment complex. When they entered the building, they smelled marijuana and knocked on the door from where it seemed to be coming. The police had no idea if the person inside was the suspect they had tracked into the building, but after they knocked, they heard a nervous scramble inside. Without possessing a warrant, they broke down the door and arrested the man in the apartment, who, it turns out, was trying to flush his pot stash down the toilet. He was later convicted.

Warrantless searches of homes are unconstitutional under the Fourth Amendment except in "exigent circumstances," one of which is the imminent destruction of evidence. However, courts have long held that exigent circumstances cannot be created by the police themselves, which is why the Supreme Court of Kentucky struck down the man's conviction.

Despite this, on Monday, the U.S. Supreme Court upheld the constitutionality of the search. The police, reasoned Justice Samuel Alito's majority opinion, can create exigent circumstances as long as the actions were not themselves constitutional violations. The problem with this should be clear. Exigent circumstances should only cover genuine emergencies like imminent threats of violence or a suspect's escape -- not a guy trying to flush his pot stash. In this case, police could have, in keeping with the Fourth Amendment, obtained a warrant using the smell of drugs as probable cause. Adding to the list of exceptions to justify corner-cutting by police is nothing short of irresponsible. As Justice Ruth Bader Ginsburg -- the only member of the bench to dissent -- noted: "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?"

That the other eight justices signed on to the majority opinion shows how bipartisan a cause the war on drugs has become. It is especially disappointing that President Barack Obama's two appointees -- Justices Elena Kagan and Sonia Sotomayor -- joined the majority to dilute Fourth Amendment protections. It is too early to fully evaluate either justice, but their decision in King vindicates progressives who felt that Obama squandered an opportunity to install committed civil libertarians on the Court. Ginsburg, 78 and in poor health, is the only justice on the Court with a strong commitment to civil liberties, and given the likely configuration of the Senate even if Obama wins re-election, it will be difficult to replace her.

The lack of effective advocates for civil liberties on the Court would be less of a problem if King were an anomaly. In fact, it's but one in a long string of cases where federal courts have carved out ad hoc exceptions to constitutional provisions for the sake of the drug war. In a 2006 case, Hudson v. Michigan, for example, the Court ruled that drug evidence obtained as the result of an illegal "no knock" search -- a search in which law-enforcement officials don't give notice before they break down your door -- was admissible, despite the fact that illegally obtained evidence is inadmissible under the exclusionary rule. In the 2006 case, police had a warrant but failed to give adequate notice they were entering; now, they don't even need one.

The Supreme Court has also ignored the Fourth Amendment by allowing law enforcement to submit government employees and students at public schools to humiliating, invasive drug tests without individualized suspicion or any evidence of a drug problem. In one case, the Court upheld random drug searches by Customs Service agents despite the lack of evidence of drug abuse. The decision so infuriated Justice Antonin Scalia -- not exactly a bleeding heart -- that his dissent decried the "immolation of privacy and human dignity in symbolic opposition to drug use." This description applies to much of the Court's drug-war-related Fourth Amendment jurisprudence, including decisions Scalia has written or joined.

Students have been particular victims of the drug-war frenzy. The Court has given school administrators wide discretion in conducting searches without probable cause and has also upheld policies that require students to submit to drug testing as a condition of participating in any extracurricular activity. The Court has also sacrificed the First Amendment in the name of the war on drugs. The same justices who believe that corporations have a virtually unlimited right to spend money to elect preferred candidates upheld the suspension of a student for holding an innocuous banner across from the school reading "Bong Hits 4 Jesus."

As with the broader drug war, civil-liberties violations have a disparate impact in terms of race and class. It is generally not wealthy white suburbanites who have to worry about being stopped and frisked on the streets or having their doors broken down. Like the grotesquely harsh sentencing disparity between powder and crack cocaine possession, this erosion of Fourth Amendment rights has persisted because wealthy people are largely insulated from its effects.

All of these civil-liberties violations might be more tolerable if they were part of a valuable and effective policy. But while the drug war has been successful at locking up huge numbers of people (especially young African American men), it's done little to reduce drug use. Alas, the drug war has been far more effective in curbing our civil liberties.

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