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.

    223 responses to “Supreme Court eviscerates 4th Amendment over marijuana smell”

    1. matt says:

      This is a sad,sad day in America.

    2. Rhayader says:

      Of course this all depends on taking the police at their word when they testify that they heard the “scurrying”.

      Hell, we have to take them at their word that they even smelled anything to begin with. A police officer can lie with impunity about what he saw, or smelled, or heard. This is painfully easy — see a shaggy guy come out of a smoke shop or grow supply store, follow him home, “smell” marijuana outside his door, and “hear” him trying to destroy evidence after knocking. Whether you find anything in the place or not, you’re covered.

    3. isaac says:

      This is so terrible, are we not safe anywhere? Police can and will just say they heard “noises” as an excuse to break anyones door down now.

    4. Chris says:

      Where I live the police do what ever they want and write warrents later. This is just another way to take our freedoms away. We as a people must understand its not about pot its about money and power we must be very careful or we might break a law!!! If you stand up and say anything they dont like, they will find a law your breaking. No one wants to belive that is happening in america but its been happening for years and the war on drugs is just the tool they need ,spread the marijuana and spread the wealth.

    5. jeremy f says:

      This cant be truer. I got popped for having, Brevard county sheriff OPENED our door, said they heard us within and smelled a strong odor, that is all they needed to come in take everything, even our freedom, most of all OUR RIGHTS as AMERICANS. I am an honorable veteran who served proudly for this country, in return to live in a state where there are no boundaries other than those set forth by the local sheriff, and his deputies are at free will to harass the innocent. It is a mark of shame on our Flag, Florida lawmakers would rather have pill labs than have a weed grow in you back yard!

      Sincerely from a concerned American Veteran,
      God Bless and best luck to all those struggling to have freedom at the hands of injustice.
      LCPL Frampton, USMC

    6. Jeff Johnson says:

      Land of the Free my Ass..What the hell..we outnumber the government… so why do we accept this? We are no longer the land of the free.. with more its own citizens imprisoned we have traded the ability to say that for a more newer and fresh saying.. The “land of the Imprisoned”. Want to see how controlled you are.. just tell the government your going to put a window in your house and tell them that because this a free country that they cant do nothing about it… and then do it and see where it gets you.. A FREAKING WINDOW?!?! Why does the government even need to know about this.. The very same government, by the way, that claims Marijuana does have medical benefits now after years of lies, and it still keeps it classified as a schedule 1 drug! Whats the definition of a schedule 1 drug you ask? Ohh!.. its really complicated..we peasants probably would never understand…but I’ll try to explain it… see in order to qualify as a schedule 1 drug… it just cant have any medicinal value is all.

      Marijuana should be legalized not just for medicinal value but just for our rights as citizens of the US (this so-called free county) the right to decide what we want to do with some herb that grows out of the ground! Anything less is not freedom.

    7. the hurt says:

      You bastards justices destroyed the 4th amendment and everything it stands for. 8-1 are you kidding me?? You might as well have struck down the entire thing as unconstitutional, and given the police a copy of my house keys. I’m going to law school so i can you kick your asses legally u facists

    8. Brett says:

      they only need a smell now? do people even care anymore?

      we are in a police state and people aren’t outraged.

      we have MAJORITY support for marijuana legalization but everybody is too fricken lazy to vote or at least make a big stink about it.

      it’s rulings like this that make me want to give up on this country.

      it’s depressing to see people take it up the ass just because it is easier than fighting…

      at this rate, i’m going to have cancer at 55 and have no other choice but to pay $90,000 for chemo just because some greedy, powerful people want to bathe in liquid gold. all because we’ve become a nation of cowards…

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