A little publicized case working its way through the Supreme Court is set to shake up foundational Fourth Amendment law and may greatly expand the ability of law enforcement to enter a home without a warrant. Known as the exigent circumstances to the Fourth Amendment, it is a rule that says there are times when circumstances present themselves that will make obtaining a warrant unnecessary.
The doctrine originated over sixty years ago when the Supreme Court, in Johnson v. United States, held that police could not enter a residence without a warrant based on probable cause just because they smelled burning opium. The smell of drugs could provide the probable cause necessary to obtain the warrant, the Court said, but without that warrant police could not lawfully enter the premises.
Now the Court is considered whether or not Kentucky police were allowed to enter a Kentucky apartment after they smelled marijuana outside. In Kentucky v. King, No. 09-1272 police officers were looking for a suspect who had sold cocaine to an informant when they approached an apartment. They smelled burning marijuana coming from inside, knocked loudly and announced themselves.
Police say they then heard sounds from inside the apartment that made them fear evidence was being destroyed. They kicked down the door and found marijuana and cocaine, but not the suspect they were looking for. The suspect was later apprehended though in a different apartment.
During his trial the Kentucky Supreme Court suppressed the evidence from the raid, holding that any risk of drugs’ being destroyed was a result of the decision by the police to knock and announce themselves rather than to obtain a warrant.
At oral argument Justices Kagan, Sotomayor and Ginsburg were troubled by police actions, and questioned whether or not the rule law enforcement hoped to obtain would allow for random and unjustified police searches. Justice Sotomayor wondered if ruling on behalf of law enforcement would eliminate the need for warrants all together.
Not surprisingly Justice Scalia appeared untroubled by the facts and that law enforcement should not be constrained because most criminals are stupid. According to Scalia, a “sensible criminal” would answer the door but decline to let police enter without a warrant.
While Justice Scalia may have a point, the problem is that it presumes law enforcement is always operating with clean motives and good facts. And it also presumes criminality on the other end of the “knock and announce”. But the Fourth Amendment is designed specifically against those presumptions and as a check against abusive police power. It requires we consider the innocent civilian rather than the criminal when crafting constitutional doctrine, though given the current makeup of the Court, that could all change.
photo courtesy of Vectorportal via Flickr.