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SUPREME COURT JUSTICES CONSIDER WHEN
POLICE MAY ENTER WITHOUT WARRANT
Kentucky police were following a man who had just sold
drugs to an
undercover informant. They entered an apartment breezeway, heard
a
door slam and found they had two choices.
US Supreme Court Case Kentucky v. King.
Return To OnlinePot's
Legal Section Main Page
By Robert Barnes
Washington Post Staff Writer
Thursday, January 13, 2011
JUSTICES CONSIDER WHEN POLICE MAY ENTER WITHOUT WARRANT
Behind door No. 1 was the dealer. And, unfortunately for him, behind door No. 2
were Hollis King and friends, smoking marijuana.
Smelling the drug, the officers banged loudly on King's apartment door and
identified themselves as police. The officers said they heard a noise and feared
evidence was being destroyed. They kicked down the door and found King, two
friends, some drugs and cash.
King was sentenced to 11 years in prison, but the Kentucky Supreme Court
overturned his conviction. It said that the officers had entered the apartment
illegally and that the evidence they found should not have been considered in
court.
On Wednesday, the case made its way to the U.S. Supreme Court, where it will
provide another chance for justices to decide when police may enter a home
without permission or a warrant and not violate the Constitution's protections
against unreasonable searches.
Justice Elena Kagan spelled out the worry for some on the court.
"One of the points of the Fourth Amendment is to ensure that when people
search your home, they have a warrant, and of course there are exceptions to
that," she said.
Agreeing with a test proposed by Kentucky prosecutors for when such searches are
lawful could mean "essentially eviscerating the warrant requirement in the
context of the one place that the Fourth Amendment was most concerned
about."
The case before the court was about one of the exceptions Kagan mentioned:
so-called exigent circumstances. Those arise when police have reason to suspect
criminal activity is underway, but think that if they take the time to get a
warrant, a life may be endangered, a suspect may escape or evidence may be
destroyed.
In this case, the Kentucky high court said police could not create the emergency
they say prevented them from obtaining a warrant.
Kentucky Assistant Attorney General Joshua Farley said the Lexington police
officers in this case had probable cause to search the apartment - the smell of
marijuana led them to think a crime was being committed.
But there was no time to get a warrant, he said, because they heard noises that
led them to think the evidence was being destroyed.
When everything police do is lawful - in this case, choosing the apartment
because of the smell of marijuana, knocking on the door, announcing their
presence - the evidence they recover should be admissible in court, Farley said.
Some justices seemed troubled by the prospect of police wandering halls -
"They go to the apartment building and they sniff at every door,"
Justice Ruth Bader Ginsburg proposed - to find cause to search.
Justice Sonia Sotomayor worried that agreeing with Farley would mean that police
could always enter without a warrant if they thought drugs were being used on
the other side, because police could always say they feared that the evidence
would be destroyed.
Jamesa J. Drake, an assistant public defender representing Hollis, said the odor
of marijuana plus the sounds the police said they heard were not enough to
create the urgent circumstances necessary for bypassing a warrant.
But she faced some stiff opposition.
Justice Antonin Scalia said the police did nothing wrong. When they knocked on
the door, the occupants could have answered and told police that they could not
come in without a warrant.
"Everything done was perfectly lawful," Scalia said. "It's unfair
to the criminal? Is that the problem? I really don't understand the
problem."
Law enforcement, he said, has many constraints, "and the one thing that it
has going for it is that criminals are stupid."
But Drake said law-abiding citizens might not know how to act if police pounded
on the door at 10 p.m. and demanded entry.
"Under our test, the police act unreasonably when they convey the
impression to a reasonable person that entry is imminent and inevitable,"
she said. The problem, she said, is when a police officer acts as if he has a
warrant but does not.
Chief Justice John G. Roberts Jr. proposed a different scenario. It's early
evening, the officer "knocks quietly on the door and says, 'We're the
police, can we talk?' "
"And then there was the smell of marijuana. And then he hears the sounds
that do convey to a reasonable police officer that evidence is being destroyed.
At that point, can they enter without a warrant?"
"Yes," Drake answered.
Farley reminded the court that it took the case to decide whether lawful actions
by police could impermissibly create exigent circumstances.
"Officers should not be held accountable for unlawful reactions by
suspects," he said.
The case is Kentucky v. King.
Source: Washington Post (DC)
Pubdate: 13 JAN 2011
Author: Robert Barnes
Webpage: http://www.washingtonpost.com/wp-dyn/content/article/2011/01/12/AR2011011205831.html
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