Supreme Court Tackles Warrantless Entry Case

[b2r]

by Nina Totenberg
January 12, 2011
The U.S. Supreme Court is wrestling with a case that could give police greater power to forcibly enter a home without a warrant.

The Constitution bars warrantless searches except in certain circumstances — for example, an emergency search to prevent the destruction of evidence. But on Wednesday, the question before the court was whether police, by themselves creating such exigent circumstances, are unconstitutionally evading the warrant requirement.

The case before the court began in 2005 when Lexington, Ky., police banged on the door of an apartment where they thought they smelled marijuana. After loudly identifying themselves, police heard movement inside, and fearing the destruction of evidence, they broke in. Inside they found Hollis Deshaun King smoking marijuana. Police also found marijuana and cocaine on the kitchen counter. King was convicted of drug trafficking and related offenses.

But the Kentucky Supreme Court reversed the conviction. The state court ruled that the drugs found in the apartment could not be used as evidence against King because police had no warrant for the search, and the only emergency circumstances were those created by the police themselves when they loudly alerted the suspect to their presence.

Prosecutors appealed to the U.S. Supreme Court, which heard arguments in the case Wednesday.

Kentucky Assistant Attorney General Joshua Farley told the justices that since the smell of marijuana gave police probable cause to believe a crime was occurring in the apartment, and since police heard movement inside after they knocked, they lawfully broke in to prevent the evidence from being destroyed.

Chief Justice John Roberts tested Farley's theory. "So, you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs." Can police every two weeks "walk through and knock on every door" and break in when they hear movement inside? "Is that all right?"

Farley responded that it would be all right as long as police had separate probable cause to believe a crime was occurring. In this case, he said, the probable cause was the smell of marijuana.

Justice Ruth Bader Ginsburg asked whether this meant that police could merely "sniff at every door," knock on those doors where they smelled marijuana, and break in once they heard a noise.

It "would be perfectly fine for the officers to do that," Farley responded.

Fourth Amendment Issue

But Ginsburg noted that the smell of marijuana would be enough to get a warrant. "We start out with a strong presumption that the Fourth Amendment requires a warrant," she observed. Why wouldn't the police just get a warrant, she asked, rather than knocking on the door and alerting the people inside?

Justice Antonin Scalia pointed out that if the suspects had quickly answered the door and simply refused to permit entry, the police would have been powerless to do more. "The police," he said, "were taking advantage of the stupidity of the criminals."

Justice Elena Kagan worried that allowing police to create exigent circumstances would be "essentially eviscerating the warrant requirement in ... the one place that the Fourth Amendment was most concerned about."

"f there is one place where the warrant requirement has real force," she said, "it's in the home." Without a warrant, she suggested, "all the police really have to say is: 'We saw pot, we heard noise,' " and they would be able to break in.

Kentucky public defender Jamesa Drake, arguing on behalf of the defendant, urged the court to consider the consequences for all citizens if the warrant requirement is diluted.

"There is no difference between what happened in this case and how an innocent person would respond," she said, noting that police had banged on the door loudly at 10 p.m., and all they heard inside was movement — a noise that she seemed to suggest did not necessarily indicate the destruction of evidence.

But Drake seemed unable to persuade the justices that she had a workable rule to supplant the broad one suggested by prosecutors. And she struggled to draw a distinction between this case and what she saw as genuinely exigent circumstances that justify a warrantless search.

A decision in the case is expected by summer
www.google.com/url?url=http://www.npr.org/2011/01/12/132869081/High-Court-Weighs-Warantless-Entry&rct=j&sa=X&ei=vl4zTc3sE4bSsAPfoIH_BQ&ved=0CDUQ-AsoATAB&q=u.s.supreme+court+kentucky&usg=AFQjCNFuvLzonqq037ZA_AUSNBxEz4NCbA

[handyman2]

This will be interesting. The police can use drug sniffing dogs when stopping an automobile that they think they smell weed. The final outcome may have larger ramifications than just the smell through a door and being able to enter without a warrent.
I wonder if this falls in the states favor if the city, county or state could be sued if they make a mistake and find no drugs. A positive ruling for the state seems like it opens a can of worms.

[fairlycrazy23]

The State is already wasting too many resources on these home invasions. There was one where they broke into the wrong house and shot the dog, (presumable in that case they had a warrant, so not exactly the same thing.

But this is an interesting case, it boils down to what is "probable cause", but whatever they rule will probably be a very narrow ruling in the sense that the justices probably won't want it to be applied widely.

What had even brought the police to the home/apartment in the first place, so they where in the position to smell pot.

[❤ mollymouser ❤]

Interesting. I don't like the idea of the police creating their own exigent circumstances. They could've just sat on the apartment and gotten a warrant.

[b2r]

Kentucky police were following a man who had just sold drugs to an undercover informant. They entered an apartment breezeway, heard a door slam and found they had two choices.

Behind door No. 1 was the dealer. And, unfortunately for him, behind door No. 2 were Hollis King and friends, smoking marijuana.

Smelling the drug, the officers banged loudly on King's apartment door and identified themselves as police. The officers said they heard a noise and feared evidence was being destroyed. They kicked down the door and found King, two friends, some drugs and cash.

King was sentenced to 11 years in prison, but the Kentucky Supreme Court overturned his conviction. It said that the officers had entered the apartment illegally and that the evidence they found should not have been considered in court.
www.google.com/url?sa=t&source=news&cd=1&sqi=2&ved=0CCYQqQIwAA&url=http%3A%2F%2Fwww.washingtonpost.com%2Fwp-dyn%2Fcontent%2Farticle%2F2011%2F01%2F12%2FAR2011011205831.html&ei=h7QzTcLWFYiusAO9w8DVBQ&usg=AFQjCNFJxs6bGZk8FX-gwzhEaemyso3KLQ

[deziloooooo]

Forgetting the individuals in the case..I think of officers breaking into a apartment, my apartment, I have been smoking some weed, no dealer, say just a like a little illegal weed in my own home now and then, officers break down the door, guaranteed their weapons are drawn.
Having some weed in my body and having a few glasses of a good white wine with the weed and having my favorite music on , semi loud, I am not all that cohernt, a bit wasted, don't recognize the police, most likely in plains clothes, possible jump up in a defensive mode, possible like so many here I go for a weapon , in my state a home invasion , there for self protection only, my home , my castle, , officers have weapons drawn, possible not that experienced, new to the plainclothes, a tragedy waiting to happen to some one who just wanted to get a bit mellow.

I'm the Justices , after thinking it over, contemplating all the possibilities... common sense.. , next case.