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  • Search Allowed if Police Hear Evidence Being Destroyed

    Published: May 16, 2011

    WASHINGTON — The police do not need a warrant to enter a home if they smell burning marijuana, knock loudly, announce themselves and hear what they think is the sound of evidence being destroyed, the Supreme Court ruled on Monday in an 8-to-1 decision.

    The issue as framed by the majority was a narrow one. It assumed there was good reason to think evidence was being destroyed, and asked only whether the conduct of the police had impermissibly caused the destruction.

    Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.

    In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.

    “The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

    The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

    But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that 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 obtain a warrant.

    The United States Supreme Court reversed that decision on Monday, saying the police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Justice Alito wrote.

    He could have chosen not to respond to the knocking in any fashion, Justice Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.

    “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Justice Alito wrote.

    Justice Alito took pains to say that the majority was not deciding whether an emergency justifying an exception to the warrant requirement — an “exigent circumstance,” in legal jargon — actually existed. He said that the Kentucky Supreme Court “expressed doubt on this issue” and that “any question about whether an exigency actually existed is better addressed” by the state court.

    All the United States Supreme Court decided, Justice Alito wrote, was when evidence must be suppressed because the police had created the exigency. Lower courts had approached that question in some five different ways.

    The standard announced Monday, Justice Alito wrote, had the virtue of simplicity.

    “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment,” he wrote, “warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”

    But “there is a strong argument,” Justice Alito added, that evidence would have to be suppressed where the police did more than knock and announce themselves. In general, he wrote, “the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted.”

    Justice Ginsburg, dissenting, said the majority had taken a wrong turn.

    “The urgency must exist, I would rule,” she wrote, “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.”

    Justice Ginsburg then asked a rhetorical question based on the text of the Fourth Amendment.

    “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?” she asked.

    --- http://www.nytimes.com/2011/05/17/us/17scotus.html?_r=1
    Facts do not cease to exist because they are ignored. -- Aldous Huxley
    Two things are infinite: the universe and human stupidity. -- Albert Einstein

  • #2
    evidence being destroyed = exigency
    end of story for those who seek to argue the illegality of kicking a door.
    "In the fury of this darkest hour, we will be your light"

    Comment


    • #3
      In this case, the police got the wrong apartment, so many of our OC fans, and even some of the others who are usually rational, presumably would support the right of the apartment dwellers to shoot the police.
      Facts do not cease to exist because they are ignored. -- Aldous Huxley
      Two things are infinite: the universe and human stupidity. -- Albert Einstein

      Comment


      • #4
        Originally posted by DAL View Post
        In this case, the police got the wrong apartment, so many of our OC fans, and even some of the others who are usually rational, presumably would support the right of the apartment dwellers to shoot the police.
        How would this be construed as anything relating to an unlawful arrest?

        How would these apartment dwellers have a right to resist anything when they are engaging in illegal activity?

        Comment


        • #5
          Originally posted by jannino View Post
          How would this be construed as anything relating to an unlawful arrest?

          How would these apartment dwellers have a right to resist anything when they are engaging in illegal activity?
          The issue was whether it was an unlawful entry, not arrest.

          For the kill-the-cops view, see http://forums.officer.com/forums/sho...essary-Indiana
          Facts do not cease to exist because they are ignored. -- Aldous Huxley
          Two things are infinite: the universe and human stupidity. -- Albert Einstein

          Comment


          • #6
            Originally posted by DAL View Post
            In this case, the police got the wrong apartment, so many of our OC fans, and even some of the others who are usually rational, presumably would support the right of the apartment dwellers to shoot the police.
            Waiting for their replies with baited breath.

            Comment


            • #7
              I'm waiting for the first person to say something like this gives the police power to illegally enter if you flush your toilet so all they have to do is wait for that to happen. Or otherwise totally misread the intent of the ruling.

              Comment


              • #8
                Originally posted by KJB View Post
                I'm waiting for the first person to say something like this gives the police power to illegally enter if you flush your toilet so all they have to do is wait for that to happen. Or otherwise totally misread the intent of the ruling.
                You mean it doesn't?

                Funny how this and the Indiana case that set off such a furor are both basically exigent circumstances cases.
                Facts do not cease to exist because they are ignored. -- Aldous Huxley
                Two things are infinite: the universe and human stupidity. -- Albert Einstein

                Comment


                • #9
                  The issue was whether it was a lawfull entry, obviously the police had probable cause if they were led to the apartment by the odor of burnt canabis. The exigency circumstance applied when they knocked, probably annouced they were police, and could hear people scrambling and a toilett flushing. The entry was declared legal under exigency circumstance, and the evidence declared admissable. It wasn't just the sound of a flushing toilet that led the officers to enter, the totality of the probable cause (smell of burning marijuana), and the exigency present by the sound of flushing toilet after the knock made the entry legal.
                  GOD IS A NINJA WITH A SNIPER RIFLE, WAITING TO TAKE YOU OUT.

                  "For weapons training they told me to play DOOM"

                  Comment


                  • #10
                    Originally posted by DAL View Post
                    You mean it doesn't?

                    Funny how this and the Indiana case that set off such a furor are both basically exigent circumstances cases.
                    You're correct that the "Indiana" thread was a case of exigency, but this one is not. Destruction of evidence is a seperate exception to the warrant requirement.

                    I for one am hoping that this thread doesn't end-up the same way.

                    Let's look at the ruling itself before getting embroiled in a mess.

                    And, no, still won't agree with (and will call for a ban on) anyone criminal enough to threaten to kill cops because they didn't like a Court ruling. Let's stay away from that craziness.

                    -V

                    Comment


                    • #11
                      The real reason the Court took the case is that some courts had held that, in circumstances such as these, the police who are the ones who create the exigency by knocking on the door and seeking to enter. Using such tactics can be a way to avoid getting a warrant.
                      Facts do not cease to exist because they are ignored. -- Aldous Huxley
                      Two things are infinite: the universe and human stupidity. -- Albert Einstein

                      Comment


                      • #12
                        I seem to remember that there already was case law about entering without a warrant while securing a residence, while waiting to get a warrant, and entering without a warrant because of exigent circumstances such as evidence destruction.

                        Comment


                        • #13
                          Originally posted by DAL View Post
                          In this case, the police got the wrong apartment, so many of our OC fans, and even some of the others who are usually rational, presumably would support the right of the apartment dwellers to shoot the police.
                          Hasn't that certain person been banned yet? I agree with the ruling. If the criminal decides to break the law by using drugs (for example) and then decides to further the crime by trying to destroy the evidence when the police arrive then there is in my book PC to go into the residence. The only thing I would say to officers is practice articulating in your report the exigency so you have less problems when the case goes to court. It's all about how you articulate your actions.
                          "I'm sorry, did you see my care face? Because I'm pretty sure I didn't show it to you becuase I DON'T care. Have a nice day. "

                          Comment


                          • #14
                            Originally posted by KJB View Post
                            I'm waiting for the first person to say something like this gives the police power to illegally enter if you flush your toilet so all they have to do is wait for that to happen. Or otherwise totally misread the intent of the ruling.
                            If for some odd reason the police show up at my house while I'm sitting on my throne and I flush it and they break the door down they'll be in for a surprise when they learn the only thing I was flushing was body waste. I won't hold it against them for doing what they at the time felt was right. Of course the only thing I would ask is that any damage caused by them breaking my door down is rectified. Police officers are human and as humans make mistakes. Not everytime they show up at a door and smell marijuana is it actually coming from the door they're standing at. I don't blame them for trying to do the very best job they can and catching people who are commiting a crime.
                            "I'm sorry, did you see my care face? Because I'm pretty sure I didn't show it to you becuase I DON'T care. Have a nice day. "

                            Comment


                            • #15
                              I just have 2 words....





                              multi-missile-firing-nerf-gun.
                              sigpic
                              Originally posted by Smurfette
                              Lord have mercy. You're about as slick as the business side of duct tape.
                              Originally posted by DAL
                              You are without doubt a void surrounded by a sphincter muscle.

                              Comment

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