Supreme Court OKs More Warrantless Searches

The U.S. Supreme Court has made it significantly easier for police to force their way into a home without a warrant. On Monday, the court, by an 8-1 vote, upheld the warrantless search of an apartment after police smelled marijuana and feared that those inside were destroying incriminating evidence.

The Constitution bars warrantless searches except in certain circumstances — for example, when police fear that evidence of a crime is being destroyed. The question in this case was whether police, by themselves creating such emergency circumstances, unconstitutionally evade the warrant requirement.

The case came from Lexington, Ky., where police pursuing a drug suspect banged on the door of an apartment where they thought they smelled marijuana. After loudly identifying themselves, police heard movement inside, and suspecting that evidence was being destroyed, kicked in the door. There they found Hollis Deshaun King, smoking marijuana. Police also found cocaine inside the apartment.

As it turned out, King was not the suspect police had been looking for, but the drug evidence in the apartment was more than enough to charge him with multiple crimes. King was sentenced to 11 years in prison.

But the Kentucky Supreme Court ruled that the drugs found in the apartment could not be used as evidence because the only emergency circumstances were those created by the police loudly alerting those inside. The state court said that instead of banging on the door and letting the inhabitants know the police were there, the police should have requested a warrant, a procedure that usually takes only a matter of minutes.

The U.S. Supreme Court, however, disagreed with the state court. The justices said that the Fourth Amendment bars unreasonable searches, and here the police acted reasonably. Writing for the court majority, Justice Samuel Alito noted that when occupants respond to a police knock on the door, they are not required to grant police permission to enter their homes. But, he said, if there is no response, and police hear movement inside that suggests destruction of evidence, they are justified in breaking in.

Criminal law experts said the ruling will undoubtedly lead to more warrantless searches like this one. In practice, says George Washington University law professor Stephen Saltzburg, the decision means that "whenever the police have suspicion that there is drug activity going on in a particular apartment or house and they knock and they hear movement inside and any reasonable delay in opening the door, they are going to break it in."

Saltzburg, author of a leading text on criminal law, says the decision resolves conflicting decisions in the lower courts. "It provides greater clarity to the police as to what they are permitted to do, and it provides less protection for homes and apartments than a lot of people thought they had and think they should have," he says.

Philip Heymann, former head of the U.S. Justice Department's Criminal Division and now a professor at Harvard Law School, says the standard laid out in Monday's decision will be very tempting for law enforcement officers to abuse — namely, allowing police to break in and search without a warrant when they knock on the door and hear sounds suggesting destruction of evidence. "That is a very fuzzy, indeterminate, easily faked — if the policeman wants to — test, when drugs have afterwards been found," says Heymann.

And that, says University of Chicago law professor Bernard Harcourt, will mean a different set of police imperatives. "Once there is probable cause to believe that there are drugs in a home — and in this case the probable cause was the smell of marijuana emanating from the home ... the police no longer need to stop and think about whether they should get a warrant."

These and other criminal law experts said that under Monday's ruling, police could go door to door in an apartment complex where there is known drug activity, and if they smell marijuana, bang on the door and if they hear noises that suggest the destruction of incriminating evidence, they can break in and seize evidence in plain sight.

Justice Ruth Bader Ginsburg, the lone dissenter from the court's ruling, accused the majority of "arm[ing] the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate," she said, "police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant."

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