WASHINGTON — Justice Elena Kagan cut to the heart of the matter during arguments Wednesday before the Supreme Court over when police may barge into a home and seize drugs or other evidence of possible wrongdoing.
"One of the points of the Fourth Amendment is to ensure that when people search your home they have a warrant, and, of course, there are exceptions to that," she said. "But if there is one place where the warrant requirement has real force, it is in the home."
Wednesday's case from Kentucky tested the strength of the constitutional dictate that police enter a person's home only after showing grounds to suspect a crime is underway and obtaining a warrant from a neutral magistrate judge.
The dispute turns on an exception that arises when police believe evidence is being destroyed or some other emergency is underway. Wednesday's question was whether police may enter a home based on those "exigent," or urgent, circumstances if officers have essentially created those circumstances, for example, by causing occupants to panic and move to try to destroy evidence. (A common scenario raised Wednesday involved suspects who hear police at the door and quickly flush drugs down the toilet.)
The case at hand began in October 2005 after police in Lexington, Ky, entered an apartment building looking for a man who officers said had sold crack cocaine to an undercover informant and then fled.
In the apartment breeze-way, officers heard a door slam but did not know which of two units the dealer had entered. They said a marijuana odor was coming from one of the doors.
Officers knocked there, announced that they were the police, and then broke down the door. Police found Hollis King and two other people inside with marijuana and cocaine. The dealer whom police were seeking was not in that apartment; he was in the other unit.
King objected to the evidence from his apartment being used at trial because police lacked a warrant to enter. The judge rejected his move to suppress, and King was sentenced to 11 years for trafficking of a controlled substance and marijuana possession.
On appeal, the Kentucky Supreme Court ruled that the evidence should not have been used because police did not have a warrant and that the emergency circumstances police cited were of their own making.
The state court said officers would have foreseen that their tactics at the door could have caused noise and commotion inside.
The officers had justified the entry by saying they heard noises that led them to believe the occupants might be getting rid of illegal drugs.
Backing Kentucky's appeal are the federal government and 34 states. Kentucky officials say the lower court ruling would impinge police action and reward criminal behavior.
Kentucky assistant attorney General Joshua Farley told the justices Wednesday that the marijuana odor coming from the apartment would have given the officers "probable cause" to obtain a warrant from a magistrate judge. But, he said, after an officer knocked and sounds of the possible destruction of evidence were heard, the situation became urgent.
He said the officers were pursuing the drug dealer and thought that he and others could be behind the apartment door getting rid of the cocaine.
Representing King, Jamesa Drake told the court, "The odor of burnt marijuana, coupled with (an officer's) cursory and equivocal testimony about the sounds of movement … is insufficient to establish exigent circumstances."
She argued that police violate the Fourth Amendment if officers have conveyed "the impression that entry is imminent and inevitable."
As the justices struggled with the proper test for when police are exempt from the warrant requirement, some such as Kagan emphasized the importance of preserving Fourth Amendment safeguards against unreasonable searches and seizures.
She asked whether all police would have to say is "We heard noise."
Justice Sonia Sotomayor similarly suggested that Kentucky officials' line of argument may undercut the warrant requirement.
"Aren't we just saying they can walk in whenever they smell marijuana, whenever they think drugs are on the other side (of the door)?"
Other justices, however, sounded more sympathetic to the position of the police.
Chief Justice John Roberts noted that officers did not demand entry but rather acted when they heard noises that suggested evidence might be destroyed.
Justice Antonin Scalia, most vigorous in his challenge to the defendant's argument, said, "There are a lot of constraints on law enforcement, and the one thing it has going for it is that criminals are stupid."
Scalia then proceeded to offer a scenario under which wiser apartment occupants would have told police to go get a warrant and would not have made any noise to raise suspicions.
Drake rejected his premise and said, "There is no difference between what happened in this case and how an innocent person would respond."
The U.S. Justice Department has urged the court to rule that when police act lawfully the warrantless search is proper.
"This court has never required police officers to abstain from lawful investigatory conduct or obtain a warrant when it is foreseeable that a suspect will react illegally to a lawful request for… cooperation," government lawyers told the court in their brief.
A decision in Kentucky v. King is likely by the end of June when the justices recess for the summer.
January 12, 2010