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Wednesday, January 05, 2011

U.S. Supreme Court will decide if the police can break-down a suspect's door if they smell pot


The police said they smelled pot and then heard noises from behind the door that suggested to them that evidence was possibly being destroyed. The police broke down the door and made the arrest. The defendant says it was nothing more than unlawful home invasion and was a criminal act by the police.

 Did the police have the right to make that entry?

 That's essentially what the U.S. Supreme Court will decide: whether the police have the right to enter a suspect's property if they smell pot being smoked inside. The key issues are exigent circumstances, search and seizure, probable cause and the Fourth Amendment. The case is Kentucky v. King (09-1272)

 Here's what Cornell University Law School has to say about the case in their Legal Information Institute (LII) Bulletin:

"While pursuing a known drug felon, police officers smelled burning marijuana emanating from behind a closed apartment door. After knocking and announcing themselves, the police heard shuffling within the apartment. Believing that valuable evidence was being destroyed inside, they entered the apartment, found a variety of drugs and drug paraphernalia and arrested Respondent Hollis Deshaun King. King claims that this entry and search violated his Fourth Amendment rights because there was no exigent circumstance which permitted the officers to enter his apartment without a warrant. The Commonwealth of Kentucky asserts that the smell of burning marijuana, in addition to the sounds of shuffling and movement within the apartment, validated the police's warrantless entry. To decide this case, the Supreme Court will have to weigh privacy interests against the need for police officers to safely and effectively perform their duties."

The question before the Supreme Court is: When does lawful police action impermissibly "create" exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist? The issue is essentially this: in emergency circumstances, police may enter and search a private residence without a warrant. Does this exception apply when police create the emergency circumstances through their own lawful action, such as knocking on a door?

It's not likely that police in San Francisco are going to come crashing through anybody's door looking for pot smokers. That is ridiculous. It will not happen. Forget it. But it doesn't mean it may not happen elsewhere in the United States. With the Tea Party firmly in control of the State of Texas, it is not unreasonable to question whether Texas Rangers might become Pot Busters.

This case will have a direct and significant impact of on Fourth Amendment of the U.S. Constitution which asserts: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, be supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 Resources:
LII Bulletin re: Kentucky v. King (09-1272)
Fourth Amendment text and annotations - FindLaw
on Wednesday, January 05, 2011

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