SCOTUS Revisits Search Exceptions

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.


Barbara Erdman
Barbara Erdman7 years ago

thanx for article

Kathlene Lentz
Kathlene Lentz7 years ago

How, exactly, could the policemen be sure that the smell was emanating from the apartment that they entered? It seems to me that these law "enforcement" people were looking for any way they could find to circumvent the very laws they are charged to uphold. No way they should get away with this.

Linda T.
Linda T7 years ago

So much for the Tea Parting constitutional fight,right,lol. It cost this country 100 billion dollars a year for our justice system and now tack on the war on drugs.

Dan B.
Dan Brook7 years ago

The regressive Republican Party of No is mean-spirited, religiously fanatical, scientifically ignorant, corrupt, hypocritical, xenophobic, racist, sexist, homophobic, evolution and global warming denying, authoritarian, selfish, greedy, lacking compassion, warmongering, and otherwise dangerous.

NEVER vote for Republicans.

K s Goh
KS Goh7 years ago

Thanks for the article.

Marilyn L.
Marilyn L7 years ago

It's coming from all size folks. Those of you who voted for these right wing republicans have embolden the entire right wing.

Sean Connors
Sean Connors7 years ago

Does anybody really believes that "Just Criminals" are "always stupid" Sorry, it's the Regular Citizens who open the door for the cops, they'll get tagged for $100 worth of pot, the Cops do the same stuff (sometimes with me) but they don't have to worry, they're in the Botherhood! Look, it's time the Cops got down on Hardcore People, children who get kidnapped, Gangs, Pimps, people who assault others, abusive spouses and boyfriends, white-collar guys who defraud taxpayers of hundreds of millions Welfare and Medicaid Fraud! In Reality the "War on Drugs" has cost America more than the War on Al-Quaeda, with all the trials, police, judges, parole boards and incarcerating hundreds of thousands of mostly Low-Level criminals who didn't even know a "Bigger Fish" to hand over to the cops for a reduced sentence. Seems silly doesn't it?
Well, you can bet the Conservatives on the Court are going to love the "No Warrant" idea! One More Tool to go after anyone critical of the Government!

Steve R.
Steve R7 years ago

Well.... trash yet another provision of the constitution!

Soon - the thing will be worthless - which is exactly what a government that seeks to CONTROL and DOMINATE a helpless, defenseless population wants!

It's called TYRANNY - and it sparked the last American revolution!

The founding fathers knew this was coming - and that's why they wrote the second amendment to the constitution.

Which the current administration, supported by many bleeding hearts and people who just don't think, is also trying to trash!

I think it's time for a history lesson - TYRANNY NEVER PREVAILS. From the Roman Empire to Germany, to the Soviet Union, Argentina, South Africa, Uganda, Iraq, Afghanistan etc - it NEVER PREVAILS.

Yet they keep right on trying :-)

David Moffatt
David Moffatt7 years ago

I might feel different if this case involved law enforcement personnel who heard shots or other obvious signs of a violent crime taking place. But I cannot approve of any action of this sort when the only justification is that "illicit substances" MIGHT be inside a dwelling and MIGHT be flushed down the toilet (in which case they would be gone and there would be no criminal activity taking place!).

Remember that any law or policy which permits law enforcement to enter private property without a warrant is a blank check for people with guns and a license to use them freely to intrude on anyone, provided they can come up with a "story".

Phony drug possession allegations can be and have been used as an excuse for unimaginable misuses of power by law enforcement. See for the story of a writer whose son was "executed" by Dallas police after she published and publicly discussed material with which they disagreed.

It can't happen here? It does every day.

Diana S.
Diana S7 years ago

Back in the 60s and 70s, there was a general consensus that "cops always have the best dope." The only cops who were strict about not using drugs were the Narcs (undercover narcotics cops), because they would have to TRUTHFULLY answer the question "have you ever taken or used illicit drugs?" each and every time some defendant's lawyer asked it in court.

Then of course you have "Sgt. Sunshine," the San Francisco PD officer who lit up on the steps of City Hall, and was celebrated in the press (but not by his department, unfortunately).

I guess there are cases when police go to a location on speculation, and something they hear, see, or smell convinces them that to wait for a warrant would cause undue harm or even death to innocent civilians/hostages, the only thing they can do in good conscience is to break down the door, rescue the innocents, and blow away the perpetrators.

At least thay way, they don't have to worry about the scumbags getting off because the evidence was excluded due to lack of warrant. When the letter of the law gets in the way of justice, I guess the only recourse is the conscience of the officers involved....