| Photo: Voice Of Detroit |
| Step One, knock and announce your presence. Step Two, claim you hear someone “destroying evidence.” Step Three, knock the door down. Voila, no Fourth Amendment protection! |
Police who claimed they heard sounds of “evidence being destroyed” after knocking on the door of an apartment that smelled of marijuana were entitled to knock down the door and search the place, the U.S. Supreme Court ruled on Monday.
In an overwhelming 8-1 decision, the Supreme Court upheld the warrantless search of an apartment in Lexington, Kentucky, ruling the search was legal because of “exigent circumstances.” Justice Samuel A. Alito Jr. wrote for the majority. Justice Ruth Bader Ginsburg cast the lone dissenting vote.
The Kentucky Supreme Court had ruled that the search was not allowed under the exigent-circumstances rule because police should have expected that knocking on the door and announcing their presence would lead those in the apartment to destroy evidence. The Supreme Court disagreed, saying the rule can justify the search when police acted lawfully before entering the apartment, reports Debra Cassens Weiss of the ABA Journal.
| Photo: Grendel Report |
| Justice Samuel Alito: “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame…” |
Police had entered the apartment building while following a suspect who had allegedly sold drugs to an undercover informant. A door slammed, indicating the suspect had entered one of two apartments. Police assumed — wrongly, it turned out — that the suspect was in the apartment that smelled of marijuana.
They knocked and announced themselves, the kicked the door in when they heard “sounds of things being moved” in the apartment.
Once inside, they found in plain view marijuana, cocaine and drug paraphernalia.
“Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendmenbt, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed,” Alito wrote.
Alito said the apartment’s occupants could have refused to open the door or to speak with the officers — or they could have talked to police, but refused to let them inside.
“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue,” Alito said.
| Photo: AlexanderZ.net |
| Justice Ruth Bader Ginsburg: “The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases” |
But Judge Ruth Bader Ginsburg disagreed.
“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” she wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.”
While agreeing that the smell of marijuana created probable cause the investigate the situation further, Ginsburg held that “the right of officers to thrust themselves into a home is… a grave concern,” reports Dan McCue of Courthouse News.
Under the “police-created exigency” doctrine, which lower courts have developed as an exception to the exigent circumstances rule under the Fourth Amendment, exigent circumstances do not justify a warrantless search when the exigency is “created” or “manufactured” by the conduct of the police.
The lower courts have not, however, agreed on a test for determining when police impermissibly create an exigency.
Eight justices inexplicably ruled that the police didn’t create an exigency in this case, even though there was time to talk to the judge to get a search warrant before the inhabitants knew the police were outside.
For the full, 27-page U.S. Supreme Court opinion, click here [PDF].
