Supreme Court eviscerates 4th Amendment over marijuana smell

In a case decided yesterday, Kentucky v. King, the US Supreme Court has ruled that cops who smell marijuana coming from your home can break down your door and arrest you, just as long as they knock first and claim to have heard you destroying evidence.
They don’t need a 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 noises from within.
The 4th Amendment to the US Constitution plainly 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.

Writing for the Supreme Court in a 1980 case called 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.

The smell of a burning flower and the sound of “scurrying” are now the “exigent circumstances” needed to “reasonably” cross that “firm line” without a warrant.

(Los Angeles Times) Ruling in a Kentucky case Monday, the justices said that officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.
Residents who “attempt to destroy evidence have only themselves to blame” when police burst in, said Justice Samuel A. Alito Jr. for an 8-1 majority.
In her dissent, Justice Ruth Bader Ginsburg said she feared the ruling gave police an easy way to ignore 4th Amendment protections against unreasonable searches and seizures. She said the amendment’s “core requirement” is that officers have probable cause and a search warrant before they break into 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 Supreme Court ruled in Kentucky vs. King that the officers’ conduct “was entirely lawful,” and they were justified in breaking in to prevent the destruction of the evidence.

Note to self and advice to others:  When you’re smoking pot in your home and the cops come a-knockin’, be very, very quiet.  I’m only half-kidding, for as Justice Alito writes:

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. Royer460 U. S. 491, 497-498 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”). 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.”

If you make noise when the cops knock, police can interpret that as you attempting to hide or destroy evidence (drugs), which creates the “exigent circumstance” needed to break down your door.  Which leads me to ask, what does hiding or destroying cannabis sound like?  I suppose the sounds of garbage disposals, trash compactors, and flushing toilets would be obvious answers.  In King’s case, “scurrying” was enough; I guess cops could argue that he was running to the window throw out a baggie.  Of course this all depends on taking the police at their word when they testify that they heard the “scurrying”.
In the King case, the cops weren’t even looking for King.  They were conducting a sting operation on a street-level crack dealer.  When he ran upstairs to his apartment on the right, the police followed, but they lost him.  As they reached the apartment on the right, they smelled marijuana from King’s apartment on the left.  The police knocked loudly on the apartment on the left.  They then heard “scurrying”, so they broke down the door and caught King with marijuana and cocaine.
The smell of marijuana burning does give police indication there is a crime taking place behind that door – the possession of at least a joint or a bowl of marijuana.  In Kentucky, such a first offense would be a crime worthy of a misdemeanor with a max of one year in jail and a $500 fine.  It would take more than eight ounces on a first offense for felony charges.  The police, not knowing King or having any probable cause to go after King, essential beat down his door on the “exigent circumstance” he may be destroying evidence of a misdemeanor.  Is it “reasonable” to violate a man’s 4th Amendment rights over a potential misdemeanor?
At NORML, we often get demands from legalization supporters to “sue the government” to end the improper and unconstitutional prohibition of cannabis.  It has been tried and tried again, including our own NORML v. DEA suit, and certainly there are many more suits to be tried.  But given this 8-1 decision and the current makeup of the Supreme Court that promises a solid 5-4 majority of Chief Justice Roberts and Justices Scalia, Alito, Thomas, and Kennedy against any meaningful reforms, it seems clear to me that the path to legalization does not lead through the judiciary.  This is a federal court system that has twisted precedent and the intent of the Constitution in the name of eradicating marijuana by recently deciding:

  • that intrastate personal non-commercial medical use of marijuana is controlled by interstate commerce (Raich v. Gonzales);
  • that police can sneak up onto your driveway on your private property and secretly place a GPS tracking device on your car to follow you to grow shops (USA v. Juan Pineda-Moreno);
  • that merely being in possession of a firearm while growing marijuana is a crime (USA v. Somkhit Thongsy);
  • that an 18-year-old student standing on a public sidewalk can be expelled by his high school for holding a sign with the word “bong” on it (Frederick v. Morse);
  • that religions using Schedule I ayahuasca or Schedule I peyote as a holy sacrament should have a First Amendment exception to drug law prosecution (Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal), but religions that use Schedule I cannabis made the mistake of choosing too popular an illegal holy sacrament (USA v. Quaintence);
  • and that police who’ve stopped your vehicle may run a drug-sniffing dog around your car even without any probable cause to believe the driver is involved with drugs in any way (Illinois v. Caballes).

So long as the law says marijuana is contraband and its possession and cultivation a crime, the federal courts will always find a way to rule to maintain marijuana prohibition.  The solution lies in Congress (depressing as that may be) and changing the law.
UPDATE: NORML Legal Intern Kellen Russoniello examines this SCOTUS decision and muses about some undiscussed aspects of the decision that need greater light cast upon them

Ray of Hope in Kentucky v. King
Although the 8-1 decision of the Supreme Court in Kentucky v. King strikes many as a full-on frontal assault to the Fourth Amendment, the decision is more nuanced than has been popularly portrayed and there is still a small chance that the decision is not as bad as many think. This is not to say that the decision does not create grave concerns, but there is a way to limit the holding of this case in future litigation.
The question answered in Kentucky v. King was whether the knocking and announcement of police presence at a home, when the police decided not to get a warrant, created the exigent circumstances needed to enter the home without a warrant. If it had, then the police entry would not have been justified because they had created the emergency. Although some, including Justice Ginsberg, have answered this in the positive, the majority determined that the police did not create an exigency by announcing their presence, however aggressively this was conducted. Although in a causal sense the vociferous announcement of the police created the supposed exigency by causing King, who assumedly was just sitting in his living room, to move, either destroy the evidence or just answer the door, the court ruled that in legal sense the police did not create the emergency. Knocking on a citizen’s door without a warrant and announcing police presence is a reasonable mode of operation, according to the majority. Because the police acted reasonably before the existence of the supposed exigency, their actions of kicking the door in after they heard what sounded like destroying evidence was also reasonable and justified by the destruction of evidence exception to the warrant requirement. (Of course, this raises other questions including: When does police conduct become the cause of exigent circumstances in the eyes of the law?)
Although this decision is subject to criticism, the real question in this case went unanswered. Both the Kentucky Supreme Court and the United States Supreme Court assumed when undertaking this analysis that exigent circumstances actually existed. This means that both courts took it as given that the movement heard inside the house after the police made their presence known was sufficient to justify a warrantless entry based on the suspicion that evidence was being destroyed.
The question thus remains: Does the shuffling heard inside the house constitute an exigent circumstance justifying warrantless entry into the home? This will be decided on remand to the Kentucky Supreme Court.
Defenders of the Fourth Amendment must be prepared to argue that the sound of movement inside a home is not enough to justify the existence of exigent circumstances. This is where the real issue regarding personal freedom in the home lies.
When the courts officially proclaim that scurrying or noise made inside a home constitutes exigent circumstances, then we will truly know that the judiciary has traded the gavel for the battering ram. For now, there remains a shred of hope.

223 thoughts

  1. To Editor:
    There’s the problem. No one is asking your “guidance” or for NORML to get involved in advocating Ron Paul. What is in question, is your obvious lack of principals regarding Freedom and the positions we have to take to attain that Freedom. It is not something respectable to take such an obvious negative stance on the issue, like you are doing. Like I said, I know Ron Paul probably will not win. But, it is because of people like you, not JUST you, but everyone in America LIKE you. “If it can’t happen, what is the point?” Once again, people had your EXACT same mentality regarding Marijuana 20 years ago, now everything is different. Yet you support that, but not Ron Paul because its “hopeless and unreal”.
    Hope for a new future and NEVER stop trying for that future because of DESPAIR for the unattainable. If we had no people striving for the unattainable, we would have NOTHING.
    So, do not make it an issue about “NORML supporting Ron Paul” because it never was that, you turned it into that when you realized that your asinine responses were not going over very well, therefore the best thing to do, psychologically, is make yourself the Defendant.
    The man who made the first statement about Ron Paul was justified in doing so. If Ron Paul WAS President, things like our Amendments wouldn’t be getting trampled on. So, why shun a man for speaking for Liberty, and speaking for a candidate of Liberty? It is YOU who is immersed within the realms of fantasy.
    [Editor’s note: The real problem here is, and always has been re Paul 1) Ron Paul is too old to be president and 2) folks who project their political wants onto candidates who’ll NEVER get elected president…so why waste anybody’s time with pie-in-the-sky?!
    You might as well spend your time and $ trying to get Smokey the Bear elected…and if you advocated that here you’d get called out too for wasting everyone’s time for promoting a losing political strategy to end Cannabis Prohibition vis a vis the executive branch.]


  3. Warrantless searches should be of no suprise. In Greene VS California, the Supreme Court ruled that the police could use the discarded trash on the street to get a warrant…I got a dose of that in TN in 03. Warrant no warrant I think enough is enough. Congress should put an end to this once and for all. HR 1983,4 & 5 might do the trick. We need to elect a congress that will pledge to vote for the end of the insanity associated with the Drug War. I would be perfectly happy being allowed to grow my own medicine or the ability to log onto the net and purchase it for delivery in the US Mail. We need to wake up before the 2.3 million prisoners in US jails swells to 3 or 4 million. My conclusion is that nothing is going to change as long as big pharma, the private jail lobby and a supreme court headed by Roberts have their way only a complete overhaul of current law will stop this insanity. America needs to wake up and vote for a congress that will finally do the right thing. Our history is pretty dismal but maybe the arab spring might wake up a few of our elected officials. What is it going to take for this country to get a grip on reality. These folks in congress have us in debt to the tune of 45K for every man worman and child. That is a thousand more than the Greeks! We are where we are becuase of the decisions made so far. When we are ready for change we must decide to elect people that will be better stewards of this great country. If we are not careful we will be still talking about this fourty years from now. I hope not.

  4. I am safe. There truly is sanctity in numbers.
    I suggest you all to be just like me.
    If you live in an apartment complex or duplex, and if there is as much as a sound emanating from your door, with the smell of marijuana in the air, your most base rights will dissipate faster than the “marijuana” that was supposedly around.
    It is a scientific fact: PIGS CAN SMELL FOR TRUFFLES, NOT MUCH MORE.

  5. Where in the Constitution does it say the Supreme Court has the right to rule on the constitutionality of FEDERAL law. It does not. Per the 10th amendment it is reserved to the States or the people. Amending the constitution is, likewise, left to the legislative branches (Federal then State) or the states by constitutional convention!
    All arguments to the contrary are nothing more than Owellian Newspeak!

  6. “To function as the founders intended, our republic requires that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”
    ~ THOMAS JEFFERSON, letter to William Stephens Smith, November 13, 1787.
    “The only dead bodies from marijuana are in the prisons and at the hands of the police.” ~ Jack Herer
    Do you think the Trillion Dollar Drug War has played a role in running your Medicare/Medcaid thru the Congressional meat grinder?” Yes or No?
    “With over 850,000 Americans arrested in 2010, for marijuana charges alone, and tens of billions of tax dollars being spent locking up non-violent marijuana users, isn’t it time we regulate and tax marijuana?”

  7. I see in the near future a crisis approaching that unnerves and causes me to tremble for the safety of my country. Corporations have been enthroned, and a new era of corruption will arise in high places until all the wealth is aggregated into a few hands and the republic is destroyed.

  8. What if a cop knocks, causing your dogs to go nuts but you remain silent and still, can he/she argue the dogs barking as suspicious noise? And what about the reduction of noise after a knock, like you turn your tv down? He/she says suspicious but you could argue that the silence confirms no scurrying..

    1. a cop can do whatever he/she wants to, up to and including kill you. as i see it , cops are not making any friends out there. its only becoming an arms race..

  9. The smell of Marijuana is not justification for a warrantless entry. You must have a criminal lawyer to represent you to the judge. Not a court appointed one, a real one. Judges wont listen to anybody else. If you smoke weed I suggest retaining a NORML approved lawyer BEFORE you need one. As soon as you are detained and read your rights, ask to see your lawyer and keep your mouth shut.
    Smoke pot, stay free.

  10. i just got charged with possession marijuana and paraphanilia…….here the story ….they said a dog stopped at my door….they woke me up knocking on door and i answered ….they asked to search i said no do u have a warrant they said no….i then attempted to shut my door…..they put there foot n my door to prevent this….they said i would have to wait outside with them while a search warrant was being made….it took 2 hours me with no shirt n shoes…even if the dog…im guessing gives probably cause why didnt they show up with the dog and a search warrant?…..why did i have to wait 2 hours? if there was no warrant

  11. and if the dog can smell n this case less than a quarter joint….say 40 feet away from the door….i havent smoked for 3 days i find it hard to beleave and if so …would it be discrimination if they didnt take the dog threw the entire apartment complex?….what is the probably cauze…..i guess i just need a house my lease said nothing bout random dog screening

  12. the police get paid from your taxes, someone controls that budget, county commissioners, city elders.. someone can cut that budget if they wish… befriend your county or city government. convince them that we need to stop eating our young….

  13. I live in indiana. One night me and a group of friends were in a garage with the door wide open in subdivision passing around 2 huge joints and a blunt when out of nowhere a voice rang out saying “you guys are gonna turn the music down and close this door and quiet this party down so the neighbors don’t complain again, right”? I turn around and behold, 2 police officers are standing in the garage entry with a wall of refer smoke slaming in thier faces. We all said “yes sir”! They both said thank you and be safe, turned and walked away.

Leave a Reply