Supreme Court Looks At Smell-Based Home Searches For Pot

Can Police Can Kick Down Your Door If They Smell Pot? Some Justices Think So

Police smelling marijuana coming from behind an apartment door can enter the home without a warrant if they believe the evidence is being destroyed, some U.S. Supreme Court Justices said on Wednesday.

More than 60 years ago, the U.S. Supreme Court ruled that police couldn't enter a residence without a warrant just because they smelled burning opium, reports Adam Liptak at The New York Times.

On Wednesday, during the argument of a case about what police were entitled to do upon smelling marijuana outside the door of a Kentucky apartment, two justices were concerned that the Court may be ready to eviscerate the 1948 ruling which stemmed from a Seattle case.

​"Aren't we just simply saying they can just walk in whenever they smell marijuana, whenever they think there's drugs on the other side?" asked Justice Sonia Sotomayor, considering what a decision against the defendant would tell the police. "Why do even bother giving them a search warrant?"

The old ruling, Johnson v. United States, involved the search of a Seattle hotel room. The smell of drugs could provide probably cause for a warrant, Justice Robert H. Jackson wrote for the majority, but it did not entitle police to enter without one.

"No suspect was fleeing or likely to take flight," Justice Jackson wrote. "The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction."

Since the War On Drugs was re-started by President Ronald Reagan in the 1980s, the Supreme Court has steadily given police more leeway to search cars, travelers and baggage, reports David Savage at the Los Angeles Times. But the justices have been reluctant to allow searches of homes without a warrant.

In the new case, Kentucky v. King, police in Kentucky were looking for a suspect who had sold cocaine to an informant. They smelled burning marijuana coming from another apartment -- where Hollis King and his friends were smoking marijuana -- knocked loudly, and announced themselves.

When they heard sounds coming from inside that made them think evidence was being destroyed, they kicked the door in and found marijuana, cocaine, King, two friends, and some cash, but not the original suspect, who was in another apartment.

King was sentenced to 11 years(!) in prison, but the Kentucky Supreme Court overturned his conviction and threw out the evidence, ruling that any risk of drugs' being destroyed was the result of the decision by police to knock and announce themselves rather than to obtain a warrant. The Kentucky court ruled that officers had entered the apartment illegally and that the evidence they found should not have been considered in court, reports Robert Barnes at The Washington Post.

The key issue is whether an "exigent" or emergency circumstance allows the police to enter a residence without a warrant. Sadly but no longer shockingly, Obama Administration lawyers joined the case on the side of Kentucky's prosecutors.

The police who broke into the apartment "reasonably believed that there was destruction of evidence occurring inside," said Ann O'Connell, an assistant to Obama's Solicitor General.

Prosecutors for Kentucky and the federal government told the justices Wednesday that the Kentucky court had erred. They claimed there had been no violation of the Fourth Amendment, which bars unreasonable searches, because they claimed police had "acted lawfully."

​But Justice Elena Kagan had doubts about that approach.

If the court looks only at the lawfulness of police behavior, Justice Kagan said, that "is going to enable the police to penetrate the home, to search the home, without a warrant, without going to see a magistrate, in a very wide variety of cases."

All the police would need to say, Justice Kagan said, is that they smelled marijuana and then heard a noise. "Or," she added, "we think there was some criminal activity going on for whatever reason and we heard noise."

"How do you prevent your test from essentially eviscerating the warrant requirement in the context of the one place that the Fourth Amendment was most concerned about?" Kagan asked Kentucky Assistant Attorney General Joshua D. Farley, who claimed the police had done nothing that violated the Fourth Amendment.

Justice Sotomayor was even more direct, asking "Aren't we just doing away with 'Johnson'?"

Justice Ruth Bader Ginsburg asked why the police could not simply roam the hallways of apartment buildings, sniffing for pot, knocking whenever they smelled marijuana, then breaking in if they "hear something suspicious."

"That would be perfectly fine," Kentucky Assistant Atttorney General Farley replied.

Justice Antonin Scalia revealed some unflattering things about his worldview -- which, God help us, seems to be that of a judgmental 10-year-old -- as he said he was not troubled by the standard the government lawyers proposed. He said that police can't go wrong by knocking loudly on the door.

"There are a lot of constraints on law enforcement," Justice Scalia said, "and the one thing that it has going for it is that criminals are stupid."

Scalia said that "criminals" often cooperate with police when not legally required to do so. They might open the door and let officers inside -- and if not, the police can break in, he said.

"Everything done was perfectly lawful," Scalia said. "It's unfair to the criminal? Is that the problem? I really don't understand the problem."

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