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Outrage: Supreme Court Gives the Green Light for Cops to Raid Homes If They Smell Marijuana, Hear Suspicious Sounds

It all comes down to what the 4th amendment describes as "exigent circumstances."
 
 
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The US Supreme Court Monday upheld the search of a Kentucky man's apartment after police broke in without a search warrant because they said they smelled burning marijuana and heard sounds suggesting he was trying to destroy the evidence. The decision in Kentucky v. King overturned a Kentucky Supreme Court ruling in favor of the apartment resident, Hollis King, who was arrested after police entered his apartment and found drugs.

Fourth Amendment doctrine holds that police must obtain a search warrant to search a residence unless there are "exigent circumstances." In the current case, the exigent circumstance was that, after police knocked on the apartment door, they heard noises they said suggested evidence was being destroyed.

The Kentucky Supreme Court had held that police could not use the exigent circumstances exception because they themselves had created the exigent circumstance by knocking on the door. The US Supreme Court begged to differ.

In his opinion for the 8-1 majority, Justice Samuel Alito wrote that people have no obligation to answer the door when police knock or to allow them to come in if they have opened the door. In such cases, police would have to persuade a judge to issue a search warrant.

But that's not what King and fellow apartment residents did. They started scuttling around suspiciously upon hearing police announce their presence--or at least, police said they did. "Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame," Alito wrote.

Only Justice Ruth Bader Ginsburg dissented, arguing that in ruling for the police, the court was giving them a way to get around the search warrant requirement in drug cases. "Police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant," she wrote.

Oddly enough, King was not the target of police. Lexington police had set up a controlled drug buy on the street outside the apartment building, but when they attempted to arrest the suspect, he fled into the building. When police arrived in the hallway, the suspect had vanished, and all police saw was two apartment doors. When they smelled the odor of pot coming from King's apartment, they chose that door. The original suspect was in the other apartment. They arrested him later.

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Here's Stop the Drug War's Scott Morgan explaining the debate in more detail:

This week's Supreme Court decision in Kentucky v. King has civil-libertarians and marijuana policy reformers in an uproar, and rightly so, but it's not exactly the death of the 4th Amendment. Here's a look at how this case could impact police practices and constitutional rights.

It all started when police chased a drug suspect into a building and lost him. They smelled marijuana smoke coming from an apartment and decided to check it out, so they announced themselves and knocked loudly on the door. They heard movement inside, which the officers feared could indicate destruction of evidence, so they kicked in the door and entered the apartment. Hollis King was arrested for drugs and challenged the police entry as a violation of his 4th Amendment right against unreasonable searches.

In an 8-1 decision written by Justice Alito, the Court determined that an emergency search was justified to prevent destruction of evidence, even though police created the risk of such destruction by yelling "Police!" and banging on the door. The determining factor, in the Court's view, was that police had not violated the 4th Amendment simply by knocking on the door. Since the subsequent need to prevent destruction of evidence was the result of legal conduct by the officers, the events that followed do not constitute a violation of the suspect's constitutional rights.

Naturally, any fan of the 4th Amendment can look at this scenario and wonder what's to stop police from "smelling" marijuana and "hearing" evidence being destroyed any time they have an urge to enter a particular dwelling. What does destruction of evidence sound like anyway, and what doesn't it sound like? Doesn't someone jumping up to destroy evidence sound the same as someone jumping up to answer the door before police kick it down? It's hard to argue with anyone who sees this result as a blueprint for facilitating not only widespread police actions that circumvent the warrant requirement, but also more innocent people being killed in their own homes in misunderstandings that could have been prevented by just a little patience from police.

These are very valid concerns, but it's also true that in the immediate aftermath of any unfortunate Supreme Court ruling, there's a tendency to commence eulogizing the 4th Amendment and proclaiming that our freedom from unreasonable searches and seizures has been abolished once and for all. That's not the case here any more than it was with any number of previous rulings we wish had been decided differently. It's not a fatal diagnosis; it merely sucks.

The fact that police were chasing a suspect when they entered the building and the fact that they smelled marijuana coming from the defendant's apartment and the fact that they heard suspicious noises after knocking were all factors in the legal outcome. Remove any one of these conditions and the case might have been decided differently. In other words, this Supreme Court decision does not mean police can start knocking on doors randomly and bursting in any time they hear a sound coming from inside. They must already have probable cause to believe there's a crime taking place and, fortunately, any prudent citizen can take measures to prevent their home from reeking of probable cause.

Ultimately, the lesson here is something we've been emphasizing at FlexYourRights.org for a long time now: stay calm, don't expose yourself to police attention, and know your rights in case something happens. Police often knock on doors without a warrant, so your best move is just to stay calm and make an informed decision about how to handle the situation.

If you prefer not to answer, which is your legal right, then do so by waiting silently for the officers to leave. If you choose to speak with them, stepping outside is a smart way to keep them from claiming to detect criminal evidence within your home. Unless they have a warrant, they may not search or even enter the home without your permission. Don't give it to them. Finally, understand that if the officers do have a warrant, your legal options are limited to the point that you should just focus on not getting hurt. In the event of any kind of negative outcome, remain silent and discuss your options with an attorney.

It's a shame that we even have to prepare people for situations like this in what's supposed to be a free society, but modern drug enforcement practices are so prone to error and abuse that every citizen should know how to protect their constitutional rights in an emergency situation. As the Supreme Court continues to reduce the scope of our 4th Amendment protections, understanding how to properly exercise our remaining rights becomes more important than ever before.

Read more of Phillip S. Smith's work at the Drug War Chronicle.
 
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