Thursday, May 19, 2011

Supreme Court: Cops Can Come in Your House if they Smell Weed

The home is one of the most cherished places in our society.  Accordingly, it is one of the most legally protected places you can be.  So much, in fact, that the Founding Fathers wrote it into the 4th Amendment, which states:

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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.  (emphasis supplied)

What this means is that as an American, you have the right to remain secure inside your house against any unwanted local, state or federal government intrusion.  The police can knock on your door and ask to come in, but if they don't have a warrant then you have a Constitutional right to say "No" and simply close the door in their face.  Many people are under the mistaken impression that you must allow the police to come into your house whenever they ask, but, thanks to the 4th Amendment, this is not true. And because it is the 4th Amendment to the United States Constitution, that means it is the universal law throughout all 50 states.

Of course, no American law would be complete with a short list of exceptions.  Before we look at the exceptions to the 4th Amendment, it bears repeating that the general rule is that the police (aka the government) cannot come into your house without a warrant.  That is the law.  However, as mentioned, there are a few exceptions that have been recognized by the Supreme Court:

1. Consent - if you say "yes, come on in, officer" instead of saying "no, you may not come in officer" then the police can, of course, come into your home without a warrant.
2. Plain View - if illegal drugs or weapons are anywhere in your home in "plain view" when the police come to the door, then, as you might suspect, they are allowed to come into your home without a warrant.
3. Hot Pursuit - if the police see you commit a crime outside, chase you all the way down the block, and then you manage to run inside your house and close the door in the nick of time before they can grab you, then yes the police are allowed to come into your home without a warrant because they were in "hot pursuit."
4. Exigent Circumstances - if the police have reason to believe that somebody is being harmed or, worse yet, killed inside your home, or, if the police have reason to believe that criminal evidence is being destroyed inside your home then the Supreme Court has long recognized that the police can, under those limited circumstances, come inside your home without a warrant.

It is this last point that is at issue in the recent Supreme Court case, Kentucky v. King (decided 8-1 with only J. Ginsburg dissenting).  In this case, police officers, who were conducting an undercover drug bust operation, followed a suspect into an apartment building after they saw him purchase illegal drugs.  By the time the police entered the apartment building the suspect had gone into one of two apartments, but the police were not sure which one.  They smelled weed coming from one apartment door so they chose to knock on that door and announce themselves as the police.  So far, so good. The police work up to this point sounds like it was done by the book. But then it gets interesting.  According to the Court, after the cops knocked on the door:

they "could hear people inside moving," and "[i]t sounded as [though] things were being moved inside the apartment." These noises, [one officer] testified, led the officers to believe that drug-related evidence was about to be destroyed.
Which begs the question: what does destroying weed sound like exactly?

And extending that question one step further, if something like the sound of weed "about to be destroyed" is all the cops need in order to come into our homes, then has this ruling, in essence, stripped the 4th Amendment of its power to keep the cops out of our homes?  In this case, the cops got lucky and found illegal drugs inside the apartment after they knocked down the door, but what if they had been wrong?

My blog partner Shady Grady and I provide our commentary on these and other issues below:

1) Shady: What happened to all the conservative literalists? My NON-LEGAL understanding is that the law says you need a warrant-absent certain EMERGENCY (ie. life and death ) situations (violent felon runs into your home while he's being chased by police, etc). If that's what the law states, then case closed. Get a warrant. You carve out exception after exception to the 4th Amendment (marijuana-furtive sounds-domestic violence) sooner or later it doesn't exist.
The JanitorI actually have to agree with that assessment.  This is basically what Justice Ginsburg argues in her lone dissenting opinion.  She said that the cops in this case did not have any "exigent circumstances" until the moment that they knocked on the door.  The suspect did not know he was being followed and therefore the cops had time to obtain a warrant before knocking on the door.  Had the cops actually seen which apartment the suspect walked into that would be different. In that case they would likely be justified in entering without a warrant under the "hot pursuit" exception.  But in this case, they had time to radio in for a warrant.  As far as we know, neither the drugs nor the suspects inside were going anywhere any time soon.

2) Shady: What happened to all the so-called liberal justices?If life has taught us anything it's shown that there is a general trend to give more power to the state. This power is almost always used to the detriment of the poor, the "minority", the people without power. I don't think many cops will be breaking down doors of bankers, Hollywood or Washington political bigshots-who are just as likely to be toking up as anyone.
The Janitor: Agree 100%. I was actually kind of surprised to see Sotomayor go along with this decision since she is, after all, the ONLY Supreme Court Justice who has actually served as a prosecutor.  She, more than the other 8 Justices, knows exactly how this type of a ruling may be exploited by the police.
3) Shady: Cops lie. They do it all the time. All they have to say is "I smelled marijuana and heard furtive movements" and presto no warrant needed.
The Janitor: I once shadowed a Public Defender during my 2nd year of law school.  During one of her trials I got to hear a cop testify as to what justification he had in searching the car of a young black male driver.  The cop said that after he pulled the kid over he "smelled weed" which gave him probable cause to search the entire car.  How convenient.  What I remember even more than the audaciousness of this comment was how nobody - not even the judge - even tripped off of this when he said it.  I was the only person looking around the courtroom like "you guys actually believe that shit?" At the time, it was the biggest bullshit I had ever seen anybody say with a straight face.  Unfortunately it pails in comparison to the trials I've seen since then.
4) Shady: Intellectual honesty: Unless it's Waco or Ruby Ridge, most conservatives aren't overly fond of the 4th Amendment. I think that's stupid but ok. The HONEST thing to do would be agitate to eliminate the 4th Amendment. There's a process for that. They should follow that process rather than use "judicial activism" to get their way. That's what they would say if a SC were to limit the 2nd Amendment.
The Janitor:  I find it rather interesting that post 9/11 so many Americans are willing to sacrifice the 4th Amendment's protection against government intrusion in order to feel "safe."     As one of the founding fathers once said: “They who would give up an essential liberty for temporary security deserve neither liberty or security."

What do you make of this new ruling?
Should the cops be able to come into your house if they hear sounds that could be evidence being destroyed? 
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