Community | May 16, 2011 | 59 comments

Supreme Court upholds warrantless search of apartment based on marijuana smell

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KB723
Police find illegal drugs after busting into wrong apartment complex

The smell of marijuana smoke and sound of evidence being destroyed is enough reason for police to knock down an apartment door and search the place without a warrant, the U.S. Supreme Court ruled Monday.

In an 8-1 decision [PDF], the nation's highest court said the warrantless search of an apartment in Lexington, Kentucky was legal because of "exigent circumstances," which permits law enforcement officers to conduct a warrantless search if there is a strong likelihood of destruction of evidence.

In the case Kentucky v. King, uniformed Lexington police officers pursued a suspected drug dealer to an apartment complex. The officers approached an apartment door where they believed the suspect had entered, knocked loudly and announced their presence.

The officers said they could smell marijuana smoke and heard noises consistent with the destruction of evidence after knocking.

The officers then kicked in the apartment door -- which turned out to be the wrong apartment -- and entered, finding marijuana and powder cocaine in plain sight and finding additional evidence during a second search.

Lexington police officers eventually entered another apartment in the complex where they found the initial target of their investigation.

The Supreme Court of Kentucky had ruled that the initial search of the apartment was not allowed under the exigent-circumstances rule because the officers should have foreseen that knocking on the door would prompt the occupants to attempt to destroy evidence. The court said the officers could not "deliberately create the exigent circumstances with the bad faith intent to avoid the warrant requirement."

The Supreme Court of the United States ruled there was no evidence that the police had acted in "bad faith" and that the smell of marijuana and the noises created inside the apartment were sufficient to establish that evidence was being destroyed.

"Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed," Justice Samuel A. Alito Jr. wrote for the majority.

"Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment," the Supreme Court ruled, reversing the decision of the Kentucky Supreme Court.

"The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases," Justice Ruth B. Ginsburg wrote in her lone dissent. "In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant."

"Aw Man, that Sucks!!!"
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59 comments // Supreme Court upholds warrantless search of apartment based on marijuana smell

  • Paratus
  • ReMarker
  • KB723
  • noxidereus
    • +1
      noxidereus  

    • We are to be truly terrorized by the country who fights false wars on terror.

      Oh say, does that star spangled banner yet wave over the land of the naive and the home of the slave?

      Yes indeed it does. Silently waving, no longer representing freedom by any stretch of the imagination.

    • 1 year ago
  • KB723
  • aj727b
    • +2
      aj727b  

    • Maybe for their next trick police can show up at YOUR door, Bombast. They could say they heard that a drug suspect had run there (does not need to be true, and no evidence is needed since we are not involving judges and warrants here). Then they could "hear" something and kick down the door (again, no proof needed, right?) UH-OH!! did you just reach for something? BLAM BLAM!! you're dead. Too bad. Guess you shouldn't have made "furtive movements" in your home.

    • 1 year ago
  • aj727b
    • +3
      aj727b  

    • And Thirdly, the Court ignores the contradictory testimony of the police. Either the evidence was being destroyed and concealed, or it was just lying out in view when they kicked the door... not both. So if the "exigent circumstance" was that police could "hear" the evidence being destroyed, then what gives? Why was it all just "lying out in the open" in "plain view"? Sounds like a load of horse crap to me.

      P.S. a smell of pot is NOT the same as a woman screaming for help as she is murdered or beaten. PLEASE...gimme a break. Don't try to act like one has anything to do with the other... By YOUR logic, Bombastic, you could argue that police acted appropriately by shooting someone who was about to smoke a joint just because they can shoot someone who was about to kill their wife... NOT the same...

    • 1 year ago
  • aj727b
    • +2
      aj727b  

    • Secondly, smells waft around on the wind and people flush the toilet every day. Smelling pot in an apartment complex, and hearing toilet sounds should not give police the power to start busting down doors. They were wrong about what apartment they went to, as their original suspect was not even there and had never been there. They stumbled onto circumstantial evidence that someone somewhere had a substance that smelled like pot, and because of this, they jumped to several incorrect conclusions. In their ruling, the Court ignores the fact that the police were wrong about their suspect being there (so they were on private property for no good reason when they "smelled pot," if that is even true and not just a pretext to kick-down what they wrongly GUESSED was the right door).

    • 1 year ago
  • percipi224
    • 0
      percipi224  
    • aj727b:

      hell if the smell is all they need half our town would be invaded by police. there is medical mj all over the place now, most for the elderly,,,sheesh. our D.A. was asked if it would help his case load if mj was legalized, he said only if all the meth users started smoking pot, its a far worse problem

    • 1 year ago
  • aj727b
    • +3
      aj727b  

    • OKAY Bombastinator... First, you keep saying that the evidence was in "plain view." It was behind a closed and locked door in an apartment that was unrelated to the "suspect" the police were looking for. How is that in "plain view" before the police violated the 4th Amendment and made entry?

    • 1 year ago
  • samthesixth
  • KB723
  • Incredulous
  • KB723
  • mitekillem
    • +2
      mitekillem  

    • I'm beginning to think that this Supreme Court is full of idiots with no foresight into what they are actually doing. The defenders of the constitution, are doing anything but.

    • 1 year ago
  • pissedoffinarkansas
    • +2
      pissedoffinarkansas  
    • mitekillem:

      Oh contraiare' mon fraire' !! They know exactly what they are doing! They are doing just what they were hired to do. Continue the fucking of the people of the United States!!! Unless your rich and powerful, then your OK.

    • 1 year ago
  • KB723
    • 0
      KB723  
    • mitekillem:

      It really makes me wonder why Clarence Thomas' wife is free to cheer for the Tea Party... Clarence Thomas has done the same and even not paid a portion of his taxes.... To Hell in a Hand Basket, we are headed....

    • 1 year ago
  • August_K
    • +3
      August_K  

    • We really, really need some new judges on the Supreme Court.
      This is what....the 3rd crazy decision they made just in the last few weeks?.

      Denying that guy that spent decades on death row the money he won when DNA evidence cleared him...
      Denying people the right to sue companies that misrepresent items/claims....
      Now this?

    • 1 year ago
  • KB723
  • bombastinator
  • mitekillem
  • bombastinator
    • 0
      bombastinator  
    • mitekillem:

      The impression I got was that plain sight was still in effect here. Lets run this with a non-drug scenario:

      police are serving a warrant on another unit when the hear a violent struggle and screams of distress inside a nearby apartment. They break in, and find a single occupant, broken furniture, and large am0unts of blood in plain sight on the floor. The visible occupant is uninjured.
      Using the blood as probable cause, they search the unit and find the occupant's wife tied up and bleeding in one of the closets. The man is arrested for Battery.

      The chain of causality is the same here unless I am mistaken, which is possible..

    • 1 year ago
  • noxidereus
  • bombastinator
  • percipi224
  • tlbuffin
  • August_K
  • KB723
  • bombastinator
  • bombastinator
  • mitekillem
    • +1
      mitekillem  
    • bombastinator:

      What if Me and the Mrs are just having loud and passionate sex?
      I'd rather have enough time to put some clothes on and answer the door, versus having them just barge in with their guns a blazing.

    • 1 year ago
  • bombastinator
  • KB723
  • KB723
  • bombastinator
  • givemeliberty3
    • +1
      givemeliberty3  

    • This is the slippery slop to a police state where 2 different supreme courts disagree, with the power of the police having greater justification for their actions than the right of the people under the 4th amendment of the constitution. The State of Kentucky Supreme Court got it right and the decision is protected by States rights under the 10th amendment, which is required by the 9th amendment for compliance to respect the Lessor degree of penalty as decided by Kentucky. The Supreme court has committed a crime of contempt to the Constitution. Where is the next court for appeal? Sense both of these courts are in disagreement. Our nation in the past have had bad decision by the Supreme Court that sparked the most brutal war in our history, the civil war. The reason being the only thing left for people to do is take up arms.
      This court decision needs review to see if the consideration of the 9th Amendment was invoked. The decision by the Kentucky Supreme court should be respected. I recommend that the U.S. Senate invoke a grand jury to here both arguments of the courts by the representative justice.

    • 1 year ago
  • bombastinator
  • givemeliberty3
    • +1
      givemeliberty3  
    • bombastinator:

      We the people trump the supreme court as required per the 10th Amendment, It is the responsibility for the Senate to question the decision of the supreme court when in fact they have failed to properly judge the case with all the rights of the constitution. There should be a hearing in the Senate as to the justification for there decision, did the judges review all the rights of the people, especially The 9th Amendment, where it has been determined in the past for the acceptance to allow for the greater right of the accused as was determined by the Kentucky supreme Court,, that smelling smoke does not justify a warrant less search. The 9th amendment is the duty of how the judges will determine how they consider the rights of the accused. If a judgment of a greater right exist for the accused at the State level then that is a right of the State, protected by the 10th amendment. If the Federal Supreme Court says no, then they are violating their Responsibility to the 9th amendment Stated in that Amendment. The greater Right has Constitutional precedence. It could also be the other way where the state restricts a right that is not restricted by federal law. Then the greater protection of the 9th Amendment would be the authority to to disqualify a state repressive law. We are a nation of rights that protect our liberty. Lately we are becoming a police state which is not the purpose of our Constitution.
      The two Senators from Kentucky should file a constitutional grievance against the supreme court.

    • 1 year ago
  • bombastinator
    • 0
      bombastinator  
    • givemeliberty3:

      "We the people trump the supreme court as required per the 10th Amendment"
      Again, no. That's not how it works.

      I agree that this is a potential severe danger to rights of privacy in that it give an unverifiable justification to break warrant requirements, but plain sight laws are still in effect, and this is no different than, say, screams of distress, which have been an acceptable reason for many many years.

      It has also been legal for cops to search cars using this same system for a long time now.

    • 1 year ago
  • givemeliberty3
    • 0
      givemeliberty3  
    • bombastinator:

      It is time for a change, where the authority of a supreme court has made error in judgment that need a definition of there judgment duties with respect to the constitution for the liberty and rights of the people. This is how it starts. We the people can change the constitution, we the people have a right per the first Amendment to file a grievance against constitutional contempt by those who would make the law of the land that violates the Constitution. how do the people file a grievance?

    • 1 year ago
  • bombastinator
    • 0
      bombastinator  
    • givemeliberty3:

      while you may be correct that is still a matter for congress not the court. Congress is the one that modifies the constitution. The court then interprets it. If you don't like the court interprettion you prevail on congress to change the wording. That's the system.

    • 1 year ago
  • givemeliberty3
    • 0
      givemeliberty3  
    • bombastinator:

      I have already sent some of my statements and concerns to my Senator. I wish others would do the same. They are easy to get on line, and if enough people complain about this they will have to do something about it.

    • 1 year ago
  • KB723
  • aj727b
    • 0
      aj727b  
    • bombastinator:

      Not in Massachusetts, pal, simple possession has been decriminalized here and the MASS Supreme Judicial Court ruled that pot smell does NOT show any legal evidence that a crime is underway. This differs from KY law since pot has not been decriminalized there... YET.

    • 1 year ago
  • percipi224
  • percipi224
    • 0
      percipi224  
    • bombastinator:

      so if what i learned in 8th grade still stands, then the three branches should have oversight each to the other? right? so how does the legislative and executive make the court system adhere to the constitution? crap. its like a mexican stand off (apologies to our latino friends)

    • 1 year ago
  • bombastinator
  • SoCalFramer
  • bombastinator
  • jpvt
    • 0
      jpvt  
    • bombastinator:

      I don't smoke weed, but I think this is a bad decision, because it allows police to do two things that I think are highly questionable. First, now they can simply walk down the hall of an apartment building "sniffing" for the smell of marijuana. I think this is bad because they don't need to do any actual investigating before breaking down a door. This leads to my second objection: now they can basically break down anybody's door for ANY reason. This basically cancels out the need for search warrants. If they want to illegally search a place all they have to say is they "smelled" marijuana, so they broke down the door. To cover their ass they can just plant a tiny bag of weed.

      So, it's not so much how the decision affects pot smokers (even if I think weed should be legal, it's not), it's how it could potentially affect everyone.

    • 1 year ago
  • KB723
  • ThatCrazyLibertarian
  • KB723
  • bombastinator
  • ThatCrazyLibertarian
  • bombastinator
  • ThatCrazyLibertarian
  • bombastinator
  • KB723
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