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Supreme Court eviscerates 4th Amendment over marijuana smell

  • by Russ Belville, NORML Outreach Coordinator May 17, 2011

    Tango Two Charlie, smells like we got us some overtime hours in this apartment complex!

    In a case decided yesterday, Kentucky v. King, the US Supreme Court has ruled that cops who smell marijuana coming from your home can break down your door and arrest you, just as long as they knock first and claim to have heard you destroying evidence.

    They don’t need a warrant or probable cause, either.  Today in America, police can now randomly patrol neighborhoods and apartment complexes sniffing around for pot.  When they smell it, they can knock on your door and then break it down, claiming they heard noises from within.

    The 4th Amendment to the US Constitution plainly 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.

    Writing for the Supreme Court in a 1980 case called Payton v. New York, Justice Stevens reiterated:

    In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

    The smell of a burning flower and the sound of “scurrying” are now the “exigent circumstances” needed to “reasonably” cross that “firm line” without a warrant.

    (Los Angeles Times) Ruling in a Kentucky case Monday, the justices said that officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.

    Residents who “attempt to destroy evidence have only themselves to blame” when police burst in, said Justice Samuel A. Alito Jr. for an 8-1 majority.

    In her dissent, Justice Ruth Bader Ginsburg said she feared the ruling gave police an easy way to ignore 4th Amendment protections against unreasonable searches and seizures. She said the amendment’s “core requirement” is that officers have probable cause and a search warrant before they break into a house.

    “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and …forcibly enter?” Ginsburg asked.

    The Supreme Court ruled in Kentucky vs. King that the officers’ conduct “was entirely lawful,” and they were justified in breaking in to prevent the destruction of the evidence.

    Note to self and advice to others:  When you’re smoking pot in your home and the cops come a-knockin’, be very, very quiet.  I’m only half-kidding, for as Justice Alito writes:

    When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer460 U. S. 491, 497-498 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”). When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.”

    If you make noise when the cops knock, police can interpret that as you attempting to hide or destroy evidence (drugs), which creates the “exigent circumstance” needed to break down your door.  Which leads me to ask, what does hiding or destroying cannabis sound like?  I suppose the sounds of garbage disposals, trash compactors, and flushing toilets would be obvious answers.  In King’s case, “scurrying” was enough; I guess cops could argue that he was running to the window throw out a baggie.  Of course this all depends on taking the police at their word when they testify that they heard the “scurrying”.

    In the King case, the cops weren’t even looking for King.  They were conducting a sting operation on a street-level crack dealer.  When he ran upstairs to his apartment on the right, the police followed, but they lost him.  As they reached the apartment on the right, they smelled marijuana from King’s apartment on the left.  The police knocked loudly on the apartment on the left.  They then heard “scurrying”, so they broke down the door and caught King with marijuana and cocaine.

    The smell of marijuana burning does give police indication there is a crime taking place behind that door – the possession of at least a joint or a bowl of marijuana.  In Kentucky, such a first offense would be a crime worthy of a misdemeanor with a max of one year in jail and a $500 fine.  It would take more than eight ounces on a first offense for felony charges.  The police, not knowing King or having any probable cause to go after King, essential beat down his door on the “exigent circumstance” he may be destroying evidence of a misdemeanor.  Is it “reasonable” to violate a man’s 4th Amendment rights over a potential misdemeanor?

    At NORML, we often get demands from legalization supporters to “sue the government” to end the improper and unconstitutional prohibition of cannabis.  It has been tried and tried again, including our own NORML v. DEA suit, and certainly there are many more suits to be tried.  But given this 8-1 decision and the current makeup of the Supreme Court that promises a solid 5-4 majority of Chief Justice Roberts and Justices Scalia, Alito, Thomas, and Kennedy against any meaningful reforms, it seems clear to me that the path to legalization does not lead through the judiciary.  This is a federal court system that has twisted precedent and the intent of the Constitution in the name of eradicating marijuana by recently deciding:

    • that intrastate personal non-commercial medical use of marijuana is controlled by interstate commerce (Raich v. Gonzales);
    • that police can sneak up onto your driveway on your private property and secretly place a GPS tracking device on your car to follow you to grow shops (USA v. Juan Pineda-Moreno);
    • that merely being in possession of a firearm while growing marijuana is a crime (USA v. Somkhit Thongsy);
    • that an 18-year-old student standing on a public sidewalk can be expelled by his high school for holding a sign with the word “bong” on it (Frederick v. Morse);
    • that religions using Schedule I ayahuasca or Schedule I peyote as a holy sacrament should have a First Amendment exception to drug law prosecution (Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal), but religions that use Schedule I cannabis made the mistake of choosing too popular an illegal holy sacrament (USA v. Quaintence);
    • and that police who’ve stopped your vehicle may run a drug-sniffing dog around your car even without any probable cause to believe the driver is involved with drugs in any way (Illinois v. Caballes).

    So long as the law says marijuana is contraband and its possession and cultivation a crime, the federal courts will always find a way to rule to maintain marijuana prohibition.  The solution lies in Congress (depressing as that may be) and changing the law.

    UPDATE: NORML Legal Intern Kellen Russoniello examines this SCOTUS decision and muses about some undiscussed aspects of the decision that need greater light cast upon them

    Ray of Hope in Kentucky v. King

    Although the 8-1 decision of the Supreme Court in Kentucky v. King strikes many as a full-on frontal assault to the Fourth Amendment, the decision is more nuanced than has been popularly portrayed and there is still a small chance that the decision is not as bad as many think. This is not to say that the decision does not create grave concerns, but there is a way to limit the holding of this case in future litigation.

    The question answered in Kentucky v. King was whether the knocking and announcement of police presence at a home, when the police decided not to get a warrant, created the exigent circumstances needed to enter the home without a warrant. If it had, then the police entry would not have been justified because they had created the emergency. Although some, including Justice Ginsberg, have answered this in the positive, the majority determined that the police did not create an exigency by announcing their presence, however aggressively this was conducted. Although in a causal sense the vociferous announcement of the police created the supposed exigency by causing King, who assumedly was just sitting in his living room, to move, either destroy the evidence or just answer the door, the court ruled that in legal sense the police did not create the emergency. Knocking on a citizen’s door without a warrant and announcing police presence is a reasonable mode of operation, according to the majority. Because the police acted reasonably before the existence of the supposed exigency, their actions of kicking the door in after they heard what sounded like destroying evidence was also reasonable and justified by the destruction of evidence exception to the warrant requirement. (Of course, this raises other questions including: When does police conduct become the cause of exigent circumstances in the eyes of the law?)

    Although this decision is subject to criticism, the real question in this case went unanswered. Both the Kentucky Supreme Court and the United States Supreme Court assumed when undertaking this analysis that exigent circumstances actually existed. This means that both courts took it as given that the movement heard inside the house after the police made their presence known was sufficient to justify a warrantless entry based on the suspicion that evidence was being destroyed.

    The question thus remains: Does the shuffling heard inside the house constitute an exigent circumstance justifying warrantless entry into the home? This will be decided on remand to the Kentucky Supreme Court.

    Defenders of the Fourth Amendment must be prepared to argue that the sound of movement inside a home is not enough to justify the existence of exigent circumstances. This is where the real issue regarding personal freedom in the home lies.

    When the courts officially proclaim that scurrying or noise made inside a home constitutes exigent circumstances, then we will truly know that the judiciary has traded the gavel for the battering ram. For now, there remains a shred of hope.

    222 Responses to “Supreme Court eviscerates 4th Amendment over marijuana smell”

    1. hmm says:

      wtf vote ron paul

    2. chris m says:

      This is madness. We really have become a totalitarian police state..

    3. CW says:

      thats a crock…but, that’s also our gov’t. we r suppose 2 be safe in our homes. that was the only place we were safe…looks like incense sales r gonna increase

    4. Zip55 says:

      It amazes me that the Supreme Court could reach this decision! 8-to-1, even!

      I am stunned!

      The police all over America have just been given the right to kick in any door at any time for any reason. And all thanks to prohibition laws.

      It will take generations to overturn this unjust decision.

    5. 4peace2b says:

      Why? Why can’t the people see just how evil this system is that we live under? To brake down a door because you smell the scared tree of life burning and arrest the people inside is insane. Cannabis is not a DRUG, man makes drugs while God makes herbs and this plant is “for he healing of the nations”. They do not want peace! war is all this system knows and we continue to be used as pawns in war games killing each other over fossil fuels that we do not even need anymore. hemp can meet all the worlds energy needs while restoring the planet and also curing cancer. It can’t be the land of the free if it is the worlds leading jailer! These are the facts! 4peace2b the drug wars must ends! Kwame

    6. T says:

      Of course. Just another way for the government to control us. Taking away yet another right. And they would have to break my door down,but they would never find anything. Ha, I have four Pit Bulls that like to eat weed. Lol Stay Strong Stoners!!!! We will win the war!

    7. Tyler says:

      Lets get thousands of people to get marijuana smelling incense or something, and see how many times we can get cops to break down doors to find nothing but a quiet family on the other side. All this over a beautiful flower.

    8. Sovereign says:

      This is being donr for one simple reason, to make the government sanctioned, taxable, and corporate distribution of marijuana possible.

    9. guest says:

      maybe someone should manufacture marijuana scented incents. i’m sure cops will get called and “scurrying” will be heard only to make the cops looked stupid. maybe then people can have the 4th amendment back. if it were me i would have the most expensive thing i could find in front of the door so the city can pay up. unfortunately the tax payers would be paying up but maybe this could increase public support once they see their hard earned money being spent on something unconstitutional. NORML maybe you should make this happen…a lot

      [Editor’s note: Why not end cannabis prohibition instead of trying to defeat an already defeated and failed government policy with tricks and subterfuge?]

      • jerold says:

        editor: is jury nullification tricks and subterfuge? pot flavored incense to make the cops look stupid is no more than street level jury nullification… only problem is that when the jack booted thugs have their egos bruised they tend to retreat to their tasers and 40’s ..

    10. johnnie burson says:

      I think it should be up to the people what laws should pass and our right should always be left alone what can we do when its the people with money and high up that is making the laws

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