News » Supreme Court to Consider Pot Smells and Warrants

January 16, 2011 by

The U.S. Supreme Court heard oral arguments in the case Kentucky v. King and has decided to hear the case for ruling.  The gist of this case is that officers entered an apartment without a warrant based on their smelling marijuana and suspecting that, after knocking, those inside were destroying evidence.  They kicked in the door and found both pot and cocaine as well as paraphernalia to go with them.

At the time, police were chasing a suspect they’d just bought drugs from.  They lost him in the hallway for the apartments and knew he’d gone into one of two, so they made a guess and, as it turns out, chose the wrong door.

The question for the Kentucky v. King case is whether police can use their “suspicion” and, specifically, their belief that suspects may be destroying evidence, to conduct a warrantless search of someone’s home.  A lot could hinge on the Supreme’s decision in this case and so far, it doesn’t look promising.  Putting aside the argument over the Drug War and legalization for a moment, let’s look at the Forth Amendment ramifications of this case.

Justice Scalia is quoted in the Washington Post as saying that the police in this case did nothing wrong.  The occupants of the apartment could have answered the door and refused them entry.  Of course, that assumes the people in the apartment had time to answer the door.  It’s not uncommon for police to serve “knock” warrants by knocking on the door, waiting two seconds for a response, and then kicking the door in.  Further, Scalia’s statements ignore the other issue: whether police can use their suspicions of evidence being destroyed to trump the need for a warrant.

Justices Sotomayor and Ginsberg were more forthcoming on this point, being troubled by the prospect of police randomly wandering halls or neighborhoods on fishing expeditions.  Worse, police could use the excuse of “suspecting drugs” and “that evidence was being destroyed” as cause to kick in just about anyone’s door at any time.

What wasn’t said, but should be, is that kicking in doors for the flimsiest of reasons (or none at all), even if the justification is created later, is the hallmark of a police state.  In the darkest days of the USSR, East Berlin, Nazi Germany, and other places, police forces would routinely search homes and businesses with no warrant and often with little or no cause.  It’s a small step from there to gulags and state-sanctioned theft.

The Fourth Amendment is not to be viewed as an obstacle to police.  In every free society, law enforcement (and all other aspects of government) is the bad guy to be treated with careful consideration of its negative potential.

“Government is not reason; it is not eloquent; it is force.  Like fire, it is a dangerous servant and a fearful master.” (George Washington)

So in the case of Kentucky v. King, it should be clear that the only reasons police should have for entering a home without a warrant are when the occupants voluntarily allow them to or when they have strong reason to believe someone’s life is in danger.  Suspicion of “drug use” or “destruction of evidence” is no reason for kicking in doors.

The decision of the Supreme Court in this case could potentially destroy what is left of our right to privacy and security in our own homes.

[source The Agitator]

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20 Responses

  1. The problem with this is that no one can prove that a police officer actually smelled anything. A police officer could ask to search your home for another reason, and if the person denies them entry, the cop could always stick his head in the door and say, “What’s that I smell, is that *marijuana?*” and then come barging into your home and rifle through all your shit.

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    • Seems like this is the way it has been for a while. It also happens with cars. Possibly pretending to detect an illegal odor is the easiest way officers get probable cause to search your personal property.

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      • Some of the problem could come from the ambiguous nature of language like “probable cause” and “unreasonable search and seizure,” where the meaning of the verbiage used today is no longer congruent with what the original writers of the 4th Amendment considered probable or unreasonable.

        For something to be “unreasonable,” for example, it generally has to be abnormal enough in the negative direction to raise large amounts of concern. With as much as our rights are slowly whittled away as to not cause too much complaint from the average American beyond a dull roar, they have also changed what it means to be “unreasonable” without rousing suspicion.

        So yes, you might be right. In this day in age, it is apparent that the SCOTUS thinks that relying on the discretion of a police officer with a firearm and his or her rather questionably accurate human sense of smell is no longer “unreasonable” to use as “probable cause,” when in back in the long, long ago, this sort of authoritarian behavior would have caused rioting in the streets.

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  2. Go ahead, with 22 million regular, 10 million occassional and another 5 million who would smoke if it were legal, that’s about 37 million people who need to be arrested and put in jail. Get busy supreme shit of a court.

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  3. krunchy71 via Reddit on

    Time to start baking brownies I guess.

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  4. They made a specific law against doing this in Canada a long time ago because cops used to use the curry smell surrounding Indian homes as an excuse to routinely harass residence on drug suspicions.

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  5. There are hundreds of things cops can use for probable cause and every one of them will come down to the cop’s word against yours in the end. This is just one more way a cop can make money for his/her respective state.

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  6. Are they talking about a crime???

    The constitution demands that all crime be tried by a jury. (Maybe **in** a court but not **by** a court.)

    Will you wake the fuck up people!

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  7. Anyone that busts into my house without probable cause (smell of weed is NOT one of them), cop or otherwise is getting shot.

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  8. […] Supreme Court to Consider Pot Smells and Warrants […]

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  9. The issue is one of police created exigency. If the cops create the condition which causes the need to avoid the warrant requirement – what the fuck? Here the cops smelled marijuana in one guy’s apartment while looking for another guy – knocked on the door and claim the guy was heard possibly destroying evidence. That is what excused the need for a warrant. But it was the cop’s own fucking fault! If the Sup Ct rules this way – they will destroy what is left of the 4th amendment. Since drugs are involved, they likely will. The courts have been hostile to the 4th ever since alcohol Prohibition.

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  10. This is why if a cop ever knocks on your door, you politely step outside and close (and potentially lock) the front door to speak with them. No seeping vapors, no cop heads poking in.

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  11. […] talk about what pot smells like. Thanks to Berger for sending this one in. The smell of pot should not be reasonable cause to kick a door down. So cocaine has medical […]

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