Pubdate: Thu, 13 Jan 2011
Source: New York Times (NY)
Page: A18
Copyright: 2011 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak

JUSTICES LOOK AGAIN AT HOW POLICE MAY SEARCH HOMES

WASHINGTON - More than 60 years ago, the Supreme Court ruled that the 
police were not entitled to enter a residence without a warrant 
merely because they smelled burning opium.

On Wednesday, at the argument of a case about what the police were 
entitled to do on smelling marijuana outside a Kentucky apartment, 
two justices voiced concerns that the court may be poised to 
eviscerate the older ruling.

"Aren't we just simply saying they can just walk in whenever they 
smell marijuana, whenever they think there's drugs on the other 
side?" Justice Sonia Sotomayor said, considering what a decision 
against the defendant would signal to the police. "Why do we even 
bother giving them a warrant?"

The old ruling, Johnson v. United States in 1948, involved the search 
of a hotel room in Seattle. The smell of drugs could provide probable 
cause for a warrant, Justice Robert H. Jackson wrote for the 
majority, but it did not entitle the police to enter without one.

"No suspect was fleeing or likely to take flight," Justice Jackson 
wrote. "The search was of permanent premises, not of a movable 
vehicle. No evidence or contraband was threatened with removal or destruction."

In the new case, police officers in Kentucky were looking for a 
suspect who had sold cocaine to an informant. They smelled burning 
marijuana coming from an apartment, knocked loudly and announced themselves.

Then they heard sounds from inside the apartment that they said made 
them fear evidence was being destroyed. They kicked the door in and 
found marijuana and cocaine but not the original suspect, who was in 
a different apartment.

The Kentucky Supreme Court suppressed the evidence, saying that any 
risk of drugs' being destroyed was the result of the decision by the 
police to knock and announce themselves rather than to obtain a warrant.

Lawyers for Kentucky and the federal government told the justices on 
Wednesday that the lower court had erred. There had been no violation 
of the Fourth Amendment, which forbids unreasonable searches, they 
said, because the police had acted lawfully every step of the way.

Justice Elena Kagan expressed doubts about that approach.

A standard that looks only at the lawfulness of police behavior, 
Justice Kagan said, "is going to enable the police to penetrate the 
home, to search the home, without a warrant, without going to see a 
magistrate, in a very wide variety of cases."

All the police need say, she said, is that they smelled marijuana and 
then heard a noise. "Or," she continued, "we think there was some 
criminal activity going on for whatever reason and we heard noise."

"How do you prevent," Justice Kagan asked Joshua D. Farley, a 
Kentucky assistant attorney general, "your test from essentially 
eviscerating the warrant requirement in the context of the one place 
that the Fourth Amendment was most concerned about?"

Mr. Farley said that nothing the police had done in this case had 
violated the Fourth Amendment.

Justice Sotomayor was even more direct.

"Aren't we just doing away with 'Johnson'?" she asked.

Justice Ruth Bader Ginsburg asked why the police could not simply 
roam the hallways of apartment buildings, sniffing; knock whenever 
they smell marijuana; then break in if they hear something suspicious.

Mr. Farley said, "That would be perfectly fine."

Other justices appeared untroubled by the standard the government 
lawyers proposed.

"There are a lot of constraints on law enforcement," Justice Antonin 
Scalia said, "and the one thing that it has going for it is that 
criminals are stupid."

He said a sensible criminal would answer the door but decline to let 
the police enter without a warrant.

In a blog post, Orin S. Kerr, a law professor at George Washington 
University and an authority on the Fourth Amendment, said the case, 
Kentucky v. King, No. 09-1272, presented a tricky question based on 
murky facts.

But he said the police should not be allowed to take advantage of at 
least some of the circumstances their own conduct creates. Among 
those circumstances, he said, are the reactions of people who are 
made to believe that the police are about to conduct a forcible 
search of their homes.