A new Supreme Court decision depletes our rights even more.
By Allen St. Pierre
In a case decided in May, Kentucky v. King, the US Supreme Court ruled that cops who smell marijuana coming from your home can break down the door and arrest you – just so long as they knock first and claim to have heard you destroying evidence.
They don’t need a search 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 suspicious noises within.
The Fourth Amendment to the US Constitution 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.”
In 1980, writing for the Supreme Court in 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.”
Post Kentucky v. King, the smell of a burning flower and the sounds of “scurrying” are regrettably now the “exigent circumstances” needed to “reasonably” cross that “firm line” without a warrant. Residents who “attempt to destroy evidence have only themselves to blame” when police burst in, said Justice Samuel Alito Jr., writing for an 8-1 majority.
In her dissent, Justice Ruth Bader Ginsburg said she feared the ruling provided police with an easy way to ignore the Fourth Amendment’s clear protections against unreasonable searches and seizures. She said the amendment’s “core requirement” is that officers must have probable cause and a valid search warrant before they enter 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 smell of marijuana burning does indicate to police in many jurisdictions that a crime is occurring behind that door – the possession of at least a small amount of pot. In Kentucky, however, such a first offense would be a misdemeanor carrying a maximum penalty of one year in jail and a $500 fine. It would take possession of more than eight ounces of cannabis on a first offense to qualify as a felony.
But the police – not knowing King or having any probable cause to go after him – essentially kicked down his door on the “exigent circumstance” that he might be destroying evidence of a lowly misdemeanor. Is it “reasonable” to permit such a drastic violation of a citizen’s Fourth Amendment rights over a potential misdemeanor?
Alito also wrote: “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’).” But, Alito continues, “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.’”
In other words, if the police knock at your door without a warrant, they are doing nothing more than a private citizen may do. But if you refuse to answer and make a noise that the police regard as suspicious, then they – unlike the private citizen – now have the “exigent circumstance” needed to break down your door and arrest you.
Which leads me to ask: What qualifies as a suspicious noise? I suppose the sound of garbage disposals, trash compactors and flushing toilets would be obvious answers. But in Kentucky v. King, “scurrying” was enough.
Allen St. Pierre, executive director of NORML. Visit norml.org.