Antonin Scalia

Supreme Court To Decide If Smell of Pot, Suspicious Sounds Merit Warrantless Entry

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Yesterday the U.S. Supreme Court heard oral arguments in Kentucky v. King. The facts: Police lose sight of their suspect after he sold drugs to a confidential informant. The cops enter the breezeway to an apartment complex and conclude the suspect entered one of two apartments. They smell pot coming from one apartment. They knock, and hear what they say were sounds of people possibly destroying evidence. They kick the door down and find some pot, cocaine, and drug paraphernalia. 

But as it turns out, they got the wrong apartment. Their suspect went into the other one. So the question is whether "exigent circumstances" permit police to enter a residence without a warrant even if the circumstances were created by lawful police actions. 

The Washington Post write-up of the oral arguments includes this from Justice Scalia:

Justice Antonin Scalia said the police did nothing wrong. When they knocked on the door, the occupants could have answered and told police that they could not come in without a warrant.

"Everything done was perfectly lawful," Scalia said. "It's unfair to the criminal? Is that the problem? I really don't understand the problem."

Law enforcement, he said, has many constraints, "and the one thing that it has going for it is that criminals are stupid." 

And this from Justices Sotomayor and Ginsberg:

Some justices seemed troubled by the prospect of police wandering halls—"They go to the apartment building and they sniff at every door," Justice Ruth Bader Ginsburg proposed—to find cause to search.

Justice Sonia Sotomayor worried that agreeing with Farley would mean that police could always enter without a warrant if they thought drugs were being used on the other side, because police could always say they feared that the evidence would be destroyed. 

I suppose it depends on how broadly the Court rules in favor of the police in the case, assuming that it does. But we've seen a similar phenomenon in no-knock raid cases. The exigent circumstances exception to the knock and announce rule, for example, has been used by police to justify forced entry both when a suspect doesn't respond to a knock at the door within 10 seconds or so (he's destroying evidence), and when the suspect immediately turns on a light or makes noises toward the door as police approach, which police have argued are indications that their cover has been blown, which then puts them in danger. The net result is that they're taking down your door, and there isn't much you can do about it either way.

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  1. I think exigent circumstances should include circumstances where the police officers are getting antsy not knowing if there’s crime on the other side of a closed door.

  2. Justice Antonin Scalia said the police did nothing wrong. When they knocked on the door, the occupants could have answered and told police that they could not come in without a warrant…

    …They knock, and hear what they say were sounds of people possibly destroying evidence. They kick the door down and find some pot, cocaine, and drug paraphernalia.

    Hope he doesn’t go full retard writing his concurrence (or, hopefully, his dissent)

    1. It appears he has already gone full retard.

    2. WTF. So the act of telling the police that they need a warrant makes them need a warrant? And vice-versa, failing to recite these magic words means they can break your door down?

    3. Law enforcement, he said, has many constraints, “and the one thing that it has going for it is that criminals are stupid.”

      Apparently, Supreme Court justices and criminals have yet another thing in common.

  3. “Everything done was perfectly lawful,” Scalia said. “It’s unfair to the criminal? Is that the problem? I really don’t understand the problem.”

    Fuck you, Scalia.

    1. Somebody push him out a fucking window.

      1. Judicial Denfenstration?

        1. Defenestration.

          “Defenstration” sounds like what a guy would get before male menopause.

          1. “Mah taint ain’t bled in months, Doc.”

            1. Take one Steve Smith and call me in the morning.

  4. when the suspect immediately turns on a light or makes noises toward the door as police approach, which police have argued are indications that their cover has been blown,

    Wait- wouldn’t knocking and shouting “Police! Open up!” pretty much have already eliminated the element of surprise?”

    1. You give them too much credit. No really, they often don’t announce.

  5. In this particular case, there were only two apartments on the floor. the fugitive went into one. Police had a 50-50 chance of picking the right one. they figured the chances were narrowed down from the sights and sounds coming from one apartment.

    Whether you could apply the same exception to a case where a fugitive runs into a building where there are 4 doors he could be behind, or 40, etc. would take some time.

    1. It’s like the Drug War version of the Monty Hall Problem.

      1. I hate that problem. I never really understood it until today. Thanks for the link.

        1. I’d never even heard of it until yesterday, and I immediately hate it.

          That said, nice link.

  6. When they knocked on the door, the occupants could have answered and told police that they could not come in without a warrant.

    And the cops would have gone away? Bullshit, Scalia, and you know it.

    Your own jurisprudence gives cops the authority to conduct warrantless searches in exigent circumstances, meaning, to obtain evidence that might be destroyed while they’re getting a warrant. Pot smell = pot = flushable evidence = warrantless search.

    God, but it pains me to agree with Sotomayor, but there it is.

    1. Why does it pain you to agree with her? When she’s right, she’s right; if she’s wrong, she’ll be wrong. So far she’s shown some really promising signs of being good on police overreach.

      1. Why does it pain you to agree with her?

        Because she’s grossly underqualified and evaded, lied, and demagogued her way onto the bench, that’s why.

        1. Because she’s grossly underqualified and evaded, lied, and demagogued her way onto the bench, that’s why.

          Unlike the 8 other models of integrity.

        2. Impressive. Most people forget right-wing talking points from that long ago.

          1. Hilarious, Tony! Now do the trick where you “shake hands” with your paw!

          2. Hooooz a good boy?

          3. How come other people’s opinions are ‘talking points’ but yours are always sincerely held beliefs?

            1. Never claimed that about the things I type here. Sometimes they are just talking points. But they’re not lies, like right-wing talking points always are.

        3. On the flip side, at least she was an appellate judge for awhile. Kagan, OTOH, was about the most unqualified nominee I’ve ever seen, not that it stopped her confirmation or anything. At least Harriet Miers actually practiced law for awhile.

          The really telling part of these oral arguments for me, was Sotomayor expressing skepticism. When a former ADA disapproves of your logic because she thinks it gives the cops carte blanche to run over the 4th Amendment…then your argument has a few holes in it, jus’ sayin.

        4. Graduated summa cum laude from Princeton
          J.D. from Yale
          New York City ADA for 5 years
          Private legal practice for 8 years
          District Court Judge for 6 years
          Circuit Court Judge for 11 years

          If she’s underqualified, then the whole damn Supreme Court is underqualified. That doesn’t mean I like her, but come on what does it take to be qualified for the Supreme Court in your eyes?

          1. Not to play any cards… but if she were a white guy with that resume RC Dean wouldn’t have a goddamn thing to say about his qualifications. Of course, the right-wing propaganda mill wouldn’t have used that line if it was a white guy, so he wouldn’t know that to be his opinion.

            1. Not to play any cards…

              …and then plays cards. Excellent.

              1. Rhetoric 101: Ignore everything in a statement preceeding the word BUT…

              2. Okay but is it true or not? You are the one playing the fucking card: the race card card. It trumps everything!

          2. Not that I think Sotomayor was unqualified for the position—my beef is with Kagan’s appointment; it’s just that there were so many other better qualified candidates that you could have picked besides her: Kozinski, Posner, Larry Tribe if you wanted an academic. Admittedly, not many of those names would have been on Obama’s list. But yeah, at least she had a lot of federal appellate experience before being nominated, if not, as RC Dean notes below, many notable decisions. I’d only heard of her from the Maurice Clarett case. Still, any white guy caught making a “wise Latina” crack would find themselves lucky to keep their current job, not be promoted to the highest position available.

          3. having a degree from yale makes her underqualified.

            1. or anti-qualified, rather.

  7. Everything done was perfectly lawful

    Way to tip your hand on which way you will rule.

  8. Did someone liquid paper out the Fourth Amendment on Scalia’s copy of the Constitution? Really, someone should look into this.

    1. Xacto knife and Scotch tape.

      I mean, do you know how hard it is to get liquid paper in just the right shade of parchment?

  9. Hey, on tv its just ruggedly handsome cop turning to cop with a really nice rack and saying “I swear I heard a cry for help.” Nice Rack says, “I believe I did too.” Then they kick in the door to the apartment (which is, naturally empty) and find some evidence laying right there on the coffee table.

  10. “”Some justices seemed troubled by the prospect of police wandering halls – “They go to the apartment building and they sniff at every door,” Justice Ruth Bader Ginsburg proposed – to find cause to search.””

    But if the cop just so happens to be a dog, no problem. So I can see why Scalia wouldn’t have a problem with it.

    1. Good point. Or an infrared camera.

      1. Well, Scalia has sided with the dog because it is sniffing outside. He said no to infrared cameras because they are looking beyond the walls.

        I can understand that difference.

        “”Farley reminded the court that it took the case to decide whether lawful actions by police could impermissibly create exigent circumstances.””

        Is that possible? Exigent circumstances are created by the actions of the person behind the door, not the actions of cops. But I’m sure they would love the ability to create their own exigent circumstances to excuse their behavior ad hoc.

        1. “”He said no to infrared cameras because they are looking beyond the walls.””

          I take that back. They are not necessarily looking beyond the wall but at the surface temp or ambient temp next to an open window.

  11. Man, does Scalia hate pot. If the people had said “You can’t come in without a warrant,” Scalia probably would have argued “Well, that proves they were committing a crime. Probable cause established!”

  12. I like the new constitutional requirement to open the door when it is knocked on. I didn’t know that I had such an obligation.

    I also didn’t know that I had to affirmatively deny entry to the police in order to protect my 4th amendment rights. I thought it was just presumed that they couldn’t enter without a warrant.

    1. “”I like the new constitutional requirement to open the door when it is knocked on. I didn’t know that I had such an obligation.””

      It’s clearly marked in Scalia’s Constitution.

    2. First, it took probable cause.
      Then it was all about reasonable suspicion.
      Now we’re on exigent circumstances.
      How low can the standard-of-evidence bar go?

      1. It can go so low as to leave the Constitution inlimbo

    3. Exactly what I was thinking.

  13. Law enforcement, he [Justice Scalia} said, has many constraints, “and the one thing that it has going for it is that criminals are stupid.”

    They also have the fact that Judges are stupid going for them.

  14. Scalia’s response only makes sense if he believes the defendants were given the chance to decline the police entry *or* that the defendants actually were destroying evidence and the cops had reason to believe so.

    Do the police allege that the defendants actually were destroying evidence? Is there evidence that they were destroying evidence? What does destroying evidence sound like? A toilet flush? What else could it be?

    “We thought they had drugs, so when we heard a toilet flushing, we knew we had our man.”

    1. “”Scalia’s response only makes sense if he believes the defendants were given the chance to decline the police entry””

      It doesn’t sound like they were. The cops might have heard sound of someone getting out of a chair, but hey, the reason they were getting out of the chair was to destroy drugs. That’s good enough for Scalia.

  15. “What does destroying evidence sound like?”

    A question which would result in a shorter answer might be, What could a cop hear that doesn’t sound like evidence being destroyed?

    1. No, its more like “What could a cop claim to have heard . . . .”

      1. They heard the toilet in their head flushing.

  16. My random whims are holy constitutional writ.

    1. Unfortunately, this seems to be true in practice, so long as you can get four others to agree with you.

  17. “A sound like someone trying to not make a sound.”

    1. “What is the sound of one hand not clapping?”

      1. “It is the sound of that hand fapping.”

    2. I believe that’s more or less specific.

  18. Why is “probable cause” even an issue any more? There are so many laws and regulations, you take anybody and search thoroughly enough you will probably find a law broken.

  19. Does it not occur to Scalia that the guy’s not a criminal until due process has been achieved, he’s an innocent person with rights? It’s apparent that Scalia thinks law enforcement doesn’t have enough power, if not openly disdainful of the parts of the constitution that protect defendants’ rights.

    1. “”Does it not occur to Scalia that the guy’s not a criminal until due process has been achieved””

      Would a conviction in a lower court count as due process?

      1. I’m talking about when he said “It’s unfair to the criminal? Is that the problem?” He seems to be saying it’s okay for police to create the circumstances for probable cause themselves because the drug users are criminals and well maybe they shouldn’t be using drugs.

        1. I’ll give you that.

          He doesn’t like criminals and often believes the ends justify the means. I do see that as a problem.

          But the smell of pot does give cops probable cause that a law is being broken. Does that mean they can bust in? Is a warrant necessary? Maybe, maybe not. I would say needed, but I’m not on the court.

          Scalia’s statement is consistant with his dog smelling pot coming out of your car is fair game belief. Do cops need a warrant when a dog hits on your car?

          The issue is more complicated, the cops did knock but how long must a cop wait till someone opens the door? I don’t remember the case but that issue has been in front of SCOTUS before.

  20. When they knocked on the door, the occupants could have answered and told police that they could not come in without a warrant.

    Asking for a warrant sounds like probable cause to me.

  21. In my more conservative days I would have agreed with Scalia. Now I look at what he said and think…’statist doucheness’.

  22. Land Shark:’Candy-gram, er, open up, it’s the police.’

  23. If I smell skunk weed, at the very least, imma gonna knock on the door and introduce myself.

  24. The cops had a hunch, what could go wrong?

  25. That doesn’t mean I like her, but come on what does it take to be qualified for the Supreme Court in your eyes?

    A far more impressive judicial record than she actually produced while warming those benches. She was a middle-of-the-road judge, at best. In my book, that’s underqualified for a SCOTUS seat.

    But I don’t want to rehash this now. I said I was agreeing with her, already! Get off my back!

  26. Justice Sonia Sotomayor worried that agreeing with Farley would mean that police could always enter without a warrant if they thought drugs were being used on the other side, because police could always say they feared that the evidence would be destroyed.

    Isn’t that what they do already with rubber stamped warrants?

  27. There are a lot of things that smell more or less like pot when they burn. How do the police know it is pot and not, say, sage that they are burning?

    Oh, and fuck Scalia. I heard he may or may not fuck sheep in his spare time. Fortunately, every time I start to think he might not be a complete piece of shit he comes out with something like this to remind me.

  28. “when the suspect immediately turns on a light or makes noises toward the door as police approach”

    Er, wait a minute. Didn’t the cops just knock on the door and ask the occupant to open it? How then does turning on the light and walking towards the door, which the cops just asked the occupant to do, constitute justification for knocking down the door?

    1. Anything and everything constitutes justification for knocking down a door if a cop wants to knock it down. Just ask Scalia.

  29. It would have been funny if the cops busted in and were sprayed by the occupants pet skunk.

    1. Pet skunks can be very territorial. But they skittish. They’ll hide during noisy commotions.

      The fun would start during the through search portion of the raid. When the guns would be holstered 😉

  30. It would be funny, as in strange, for anyone to have a pet skunk. But I like the way you think nevertheless.

    1. Most pet skunks have had their “stinky stuff” glands surgically removed or altered. Think its sorta like a vasectomy. They are more like cats as pets.

      I knew a family that had a pair of them back in junior high. Also with Boston Bull terriers. Cute watching the dogs and skunks play.

  31. King v Klug 09 -1272
    http://www.nytimes.com/2011/01/13/us/13scotus.html
    The fourth amendment has two parts. The second part refers to the operation or the enforcement of the marijuana laws. The first part does not mean It is reasonable to seize marijuana because it is illegal. It means the laws authorizing the search and seizure must be reasonable. Criminal laws to be reasonable there must be a threat to public safety. The private use of marijuana doesn’t threaten public safety. Where is the victim of a crime?
    What a sad state our judiciary is in. The marijuana laws, criminal laws are constitutional based on rational review making them a political crime. Judicial review of criminal laws by rational review is deprivation of rights under the color of law, a federal crime. Title 18 USC 242. http://www.ursm.us This applies when those rights are presented in a justiciable controversy and ignored by the judges.
    Why the discrimination in judicial review of criminal laws that cause actual injury to rights? A search warrant, is invasion of privacy. Being arrested is deprivation of liberty. Seizing marijuana is deprivation of property.
    What is it that I am not getting? What are the lawyers afraid of? The police, the drug cartels?
    Michael Dee
    Windham ME
    207-893-0287

  32. The smell of pot alone — if it can be definitively identified as pot, which it can’t — should not be enough to support probable cause. After all, was the pot smoke recently or yesterday? Is it all gone? Was it smoked somewhere else and the smell just clung to the clothing of the resident?

  33. I smelled something…The Court is an arse.

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