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. Royer, 460 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.