In Hot Pursuit of Fleeting Marijuana

The United States Supreme Court just decided a case concerning whether police officers who smelled marijuana could search an apartment without a warrant.

The decision has been attacked by criminal lawyers and privacy advocates, but the ruling is not as broad or bad as they suggest.

In Kentucky v. King, uniformed officers who observed an undercover drug buy followed the suspected drug dealer into a building. The officers lost sight of the suspect as he entered an apartment. The Fourth Amendment of the constitution guarantees persons the right to be secure in their persons, houses, papers, and effects. Law enforcement officers cannot enter a home except upon probable cause and after obtaining a warrant from a neutral magistrate subject to several exceptions. The exceptions are few in number and carefully defined.

In King, the police officers initially knocked on the door and announced their presence without entering. They smelled marijuana. As soon as they announced their presence, “police!” they heard noises they claimed sounded like efforts to destroy evidence.

The Supreme Court recalled that a well-settled exception to the warrant requirement is the imminent destruction of evidence. The Court merely held that this exception to the warrant requirement applies as long as the police are in a place they have a right to be in and did not violate or threaten to violate the Fourth Amendment. In King, the police officers verbally announced their presence. They did not attempt to search, or claim the right to search, until after they allegedly believed that evidence was about to be destroyed.

It’s important to understand the limited impact of this decision. The court did NOT decide whether exigent circumstances existed. The court did NOT decide whether the noises the police heard inside the apartment after they verbally announced their presence in fact established an imminent threat that evidence was about to be destroyed. Thus, we must continue objecting and holding district attorneys’ feet to the fire when they fail to present credible evidence in court that a search warrant was excused because the suspect seemed to be trying to destroy evidence.