Pubdate: Tue, 18 Jan 2011
Source: Staten Island Advance (NY)
Copyright: 2011 Advance Publication Inc.
Contact:  http://www.silive.com/advance/
Details: http://www.mapinc.org/media/646
Author: Daniel Leddy
Bookmark: http://www.mapinc.org/raids.htm (Drug Raids)

WHEN SHOULD WARRANTLESS SEARCHES BE PERMITTED?

When can the police forcibly enter your home to search for evidence 
without a warrant? That issue, pivotal to fundamental freedom, was 
argued last Wednesday before the U.S. Supreme Court.

The case, Kentucky v. King, involves an arrest made on October 13, 
2005 during a "buy-bust" operation that was being conducted at an 
apartment complex by the Lexington-Fayette County Police Department.

An undercover informant positioned his truck in a lot adjacent to an 
apartment building where the drug transactions would take place.

At the same time, Officer Gibbons parked his unmarked car where he 
could see the informant's truck. Meanwhile, three other officers, 
including Steve Cobb, waited at nearby locations.

Shortly after 10 p.m., after being alerted by Gibbons that a crack 
cocaine sale had taken place, the three officers hurried to the 
parking lot. While they were en route, Gibbons radioed a description 
of the suspect and stated that he had entered the breezeway of 
apartment building 1317.

After Cobb reached the scene and exited his car in pursuit, Gibbons 
further radioed that the suspect was entering the right, rear 
apartment. Cobb, however, was too far away from his vehicle to hear 
this particular transmission.

When officers arrived at the breezeway, they heard a door slam shut 
near the two rear apartments but did not see which of the two units 
the suspect had entered.

They did, however, detect the "very strong odor of burnt marijuana" 
coming from the left, rear apartment. Cobb thus believed it to be the 
unit that the suspect had entered.

One of the accompanying officers knocked loudly on the door and 
announced "police."

The officers immediately heard movement inside the apartment 
consistent with the destruction of evidence, and feared that felony 
drug evidence would be lost unless they entered.

So Cobb kicked in the door, and the officers conducted an initial 
protective sweep of the premises in search of their original suspect. 
While they didn't find him, they did discover 4.6 grams of powder 
cocaine and 25 grams of marijuana in plain view.

A further search of the apartment uncovered crack cocaine, scales 
with cocaine residue, and $2,500 in cash. At that point, Hollis King 
and two other occupants of the apartment were arrested.

The officers eventually found their original suspect in the back 
right apartment.

King moved to bar prosecutors from using the seized evidence against 
him at trial, claiming that it was the product of an unconstitutional 
search. The United States is the only nation in the world with an 
"exclusionary rule" that thus rewards criminals for police misconduct.

When King's motion was denied, he pleaded guilty, received a 10-year 
jail term, but reserved his right to challenge the legality of the 
search on appeal.

After the Kentucky Supreme Court unanimously sided with King and 
overturned his conviction, prosecutors successfully persuaded the 
nation's highest court to hear the case.

APPLICABLE LAW

The U.S. Supreme Court has interpreted the 4th Amendment to the 
federal constitution as barring police from conducting a warrantless 
search of a private residence unless there exists both "probable 
cause" and "exigent circumstances."

The latter include situations where police act reasonably to prevent 
the possible destruction of evidence.

Applying that principle to this case, the strong odor of burnt 
marijuana established probable cause, and the movement inside the 
apartment after the police knocked on the door constituted exigent 
circumstances.

Therefore, the forcible entry into the apartment was justified, right?

Not so fast, the attorney for Hollis King argues.

While he concedes the existence of probable cause, he maintains that 
police should have used it to obtain a search warrant. By knocking on 
the door and announcing themselves instead, he continues, the police 
actually precipitated the movement inside the apartment.

Thus he claims that they themselves created the exigent circumstances 
on which they then relied to kick in the door. King insists that the 
search was therefore improper and the evidence seized as a result 
cannot be used against him.

This is a close case that pits legitimate privacy concerns against 
the need of police to make snap judgments, some of which may involve 
matters of life and death.

Those differing perspectives were evident during last week's oral 
argument, as the court's conservative justices appeared to side with 
prosecutors while its liberal members seemed to support King.

On balance, though, prosecutors have the more compelling argument here.

It is undisputed that the officers acted in good faith. Nor is there 
any question that they had a right to knock on the door and announce 
themselves.

Contrary to King's assertion, the resultant movement inside the 
apartment was a voluntary reaction of its occupants. They could have 
chosen instead to remain quiet, or to simply open the door and tell 
police to come back with a warrant.

Instead, they acted in such a way as to lead police to reasonably 
believe that they were in the process of destroying evidence. And 
under traditional legal principles, that constituted exigent 
circumstances that justified the search and seizure.

The Supreme Court should reinstate King's conviction.
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