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Editorial

Broken-down-door policing

A Kentucky marijuana arrest presents a troubling threat to Americans' right to privacy.

January 16, 2011

A police officer smells what he thinks is marijuana and knocks loudly on an apartment door, shouting "This is the police!" When he hears noises that may or may not be the destruction of evidence, he breaks down the door, finds drugs and arrests the occupant — all without a search warrant. That occurred in Kentucky in 2005, and last week the Supreme Court was asked to overturn a lower court and rule that it was constitutional. It should decline the invitation.

The legal issue in the case is technical, but the implications for personal privacy are not small. If the court rules for the state, it will approve a significant new loophole in the requirement that police obtain a warrant before searching a home.

The narrow question before the court is whether — or when — police may take advantage of "exigent circumstances" that they create themselves. Exigent circumstances are conditions — imminent danger, the possibility that a suspect will escape or concern about the immediate destruction of evidence — that allow police to conduct a search without a warrant.

In this case, lawyers for Hollis King argued that although there may have been exigent circumstances, the police created those circumstances — the noise suggesting the destruction of evidence — by shouting and knocking violently on King's door, giving the impression that they were about to enter. During oral arguments, Justice Stephen G. Breyer outlined what could happen if the court ruled for the police:

"Well, the police say, Oh, I don't want to get a warrant. It's such a bore. We have other things to do, I have a great idea; let's knock at the door, and as soon as he starts moving around … I know what! He's going to the … bathroom.... We'll hear that, and we'll be able to get in."

The state of Kentucky argued that King's conviction should be upheld because the police obeyed the law at every step. But Justice Elena Kagan noted that some courts had taken a more "holistic" approach to evaluating police behavior, one that asked the question: "Is the whole process by which the police operated with respect to this person reasonable?" The search of King's apartment fails that test.

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