Stephen Henderson and Kelly Sorensen, Search, Seizure, and Immunity: Second-Order Normative Authority, Kentucky v.King, and Police-Created Exigent Circumstances
Comment by: Marcia Hofmann
Workshop draft abstract:
A paradigmatic aspect of a paradigmatic kind of right is that the person holding the right is the only one who can alienate it. Rights are constraints that protect individuals, and while individuals can consent to waive many or even all rights, the normative source of that waiving is normally taken to be the individual herself.
This moral feature – immunity – is usually in the background of discussions about rights. We want to bring it into the foreground here. This foregrounding is especially timely in light of a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of the very party against whom the right supposedly protects the rights holder. We will argue that the Court’s decision is mistaken. The police officers in the case before the Court were not morally permitted, and should not be legally permitted, to intentionally create the very circumstances that result in the removal of an individual’s right against forced, warrantless search and seizure. In Fourth Amendment terms, the Court was wrong to reject the doctrine of police-created exigency.
An embedded concern is this. Law enforcement officers and others are able to create circumstances that transform, or in some cases seem to transform, a person into a kind of wrongdoer who was not one before. There are moral constraints against creating the circumstances that transform persons in certain ways. We will note some of these constraints as well.