By Kimberly Atkins
The Daily Record Newswire
BOSTON, MA — Where there is smoke, there is sometimes a burning marijuana joint. But when that smoke leads police into the wrong apartment during a drug sting, does that create exigent circumstances to support a warrantless search and arrest?
The justices of the U.S. Supreme Court took up that question recently in the case Kentucky v. King.
The case involves a drug sting conducted by police at a Lexington, Ky., apartment complex. The police were pursuing a drug trafficker who sold cocaine to an undercover informant.
When an undercover officer signaled to other officers that the suspected dealer had entered an apartment building, police heard an apartment door slam and then smelled burning
marijuana from one of the apartments. The officers knocked on the door, and then heard noises that led them to believe that evidence was being destroyed.
The officers made a forced entry into the apartment and found Hollis King and two others smoking marijuana. Cocaine, cash and drug paraphernalia were also found in the apartment.
Police eventually found the original drug suspect in another apartment.
King and his co-defendants moved to suppress all evidence found inside the apartment he occupied, arguing that his arrest and the search of his apartment were illegal.
The trial court denied the motion, reasoning that the smell of marijuana gave the officers probable cause. It also found that the lack of response to the knock on the door and the sound of movement inside the apartment created the requisite exigent circumstances to justify a warrantless entry. The Kentucky Court of Appeals affirmed.
But the Kentucky Supreme Court reversed, ruling that the exigent circumstances exception to the warrant requirement did not apply because the officers created the exigency by knocking on the door.
The U.S. Supreme Court agreed to review the case.
At oral arguments Wednesday, Kentucky Assistant Attorney General Joshua D. Farley argued that where probable cause exists “separate from the existence of exigent circumstances,” then warrantless entry is permissible.
“In this case there was probable cause due to the smell of marijuana,” Farley said.
Justice Ruth Bader Ginsburg asked if police can “go to the apartment building and sniff at every door” and “knock on the doors where they smell marijuana as a routine.”
While that would not be the best idea, Farley said, it would be constitutional. The smell of marijuana created probable cause, and the sound of evidence being destroyed created the exigent circumstance, he said.
“Since the officers have not violated the Fourth Amendment prior to the exigency arising, there would be no need to suppress any evidence,” Farley said.
“It might just be somebody going to the toilet, right?” asked Justice Antonin Scalia.
“The exigent circumstances is a reasonable belief based upon the totality of the surrounding circumstances,” Farley said. “Here, given that the officers had a reasonable belief that they were chasing a fleeing felon, they had a reasonable belief that this was the doorway he had entered, [and when] you couple that with the noises that they heard,” it qualifies.
Scalia asked if the police would have been able to enter if the occupants answered the knock, but declined a request by police to be let in without a warrant.
“Then the officers would not have been able to force entry,” Farley said.
“So basically the police were taking advantage of the stupidity of the criminals, right?” Scalia asked. “That’s terrible. That’s not fair, is it?”
Justice Sonia Sotomayor asked Ann O’Connell, assistant to the solicitor general who argued as amicus in support of the state, whether a ruling in the state’s favor would mean a cop could break down the door any time a person doesn’t answer, but instead retreats to another room and closes the door.
“A person doesn’t have to answer the door,” O’Connell said. “A person might come to the door, they might also ignore whosoever at the door. Both of those options are fine.”
Jamesa J. Drake, a Kentucky assistant public advocate, argued for King that the police acted unreasonably by banging loudly on the door and “identifying themselves as police officers
and demanding that the door be opened.”
“Is any of that unlawful?” asked Scalia. “Is knocking loudly on the door unlawful?”
“It’s unreasonable conduct,” Drake said. “This is a Fourth Amendment case, so the question is whether it’s reasonable.”
“Miss Drake,” Scalia said, “the problem I have is there are a lot of constraints on law enforcement, and the one thing that it has going for it is that criminals are stupid. ... And an
enormous number of arrests [come about from stupidity] and we said that’s perfectly ok.”
“There is no difference between what happened in this case and how an innocent person would respond,” Drake said.
Justice Stephen G. Breyer asked what reasonableness test the defendant would propose.
“I would think it’s reasonably foreseeable when you knock on the door very politely and say ‘the police’ that somebody might shout out ‘hide the pot,’ all right,” Breyer said.
“Under our test, the police act unreasonably when they convey the impression to a reasonable person that entry is imminent and inevitable,” Drake said. “What the officers did in this
case is the functional equivalent of saying, ‘we’re going to kick in the door.’”
A decision from the Court is expected later this term.
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