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Supreme Court appears set to give police more leeway in searches

Conservative justices appear to agree police should be allowed to enter a suspect's residence without a warrant if they suspect evidence is being destroyed.

January 13, 2011|By David G. Savage, Washington Bureau

Reporting from Washington — Police officers who smell marijuana coming from an apartment can break down the door and enter if they have reason to believe the evidence might be destroyed, several Supreme Court's justices suggested Wednesday.

In the past, the high court usually has said police cannot enter a home or apartment without a search warrant because of the 4th Amendment's ban on "unreasonable searches and seizures."

But during arguments in a drug case, the court's conservatives said they favored relaxing that rule when police say they have a need to act fast.

Five years ago, police had banged on the apartment door of Hollis King in Lexington, Ky., about 10 p.m. after they detected the smell of marijuana. They broke in the door when they heard sounds inside and arrested King for marijuana and cocaine possession.

Last year, the Kentucky Supreme Court ruled the search unconstitutional, but it sounded as though the justices would reverse the ruling.

"Everything done here was perfectly lawful," Justice Antonin Scalia said.

"There's nothing illegal about walking down the hall and knocking on somebody's door, and if, as a police officer, you say, 'I smell marijuana,' and then you hear the flushing, there's probable cause," Chief Justice John G. Roberts Jr. said.

Several of the court's liberal justices, who grew up in apartments in New York City, expressed surprise.

If the court rules this way, "aren't we just simply saying they [police] can walk in whenever they smell marijuana without bothering with a warrant," Justice Sonia Sotomayor said.

"We start with the strong presumption that the 4th Amendment requires a search warrant," Justice Ruth Bader Ginsburg added.

Since the war on drugs began in the 1980s, the Supreme Court has steadily given police more leeway to search cars, travelers and baggage. But the justices have been reluctant to permit searches of homes without a warrant.

The key issue in Kentucky vs. King is whether an "exigent" or emergency circumstance allows the police to enter a residence without a warrant. Obama administration lawyers joined the case on the side of the state's prosecutors.

The police who broke into the apartment "reasonably believed that there was destruction of evidence occurring inside," said Ann O'Connell, an assistant to the solicitor general.

Ginsburg said it was unclear what prompted the police to act. "It was kind of vague. They heard movement.... There was nothing about a toilet flushing."

"It's our position that the court should assume there was an exigency in this case," O'Connell replied.

Scalia said the police couldn't go wrong by knocking loudly on the door.

"Criminals are stupid," he said, and they often cooperate with police when they are not required to do so. They might open the door and let officers inside, or if not, the police can break in.

david.savage@latimes.com

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