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.