January 13, 2011

Can the police break down your door and burst in on you if they smell marijuana burning?

They don't have a warrant, but no warrant is needed under "exigent circumstances," such as when there is evidence of destruction of evidence. In the case argued in the Supreme Court today, after the police knocked and announced themselves, they heard a toilet flushing. Is that enough?
Kennedy uses this opportunity to ask why the smoking of marijuana itself doesn't constitute the destruction of evidence.

46 comments:

garage mahal said...

I sure as hell hope not!

Chef Mojo said...

Take some fresh spinach and burn it. Interesting what it smells like.

jr565 said...

What if they went to Michael Vick's house and heard what they thought was a dog whimpering?

AllenS said...

Kennedy has a sense of humor.

David said...

We flush toilets a lot on my house, and it's all perfectly legal. Or so I thought.

MadisonMan said...

Since police can go through your garbage, why not just go through your sewage too?

My hope is that the SC leans on the side of privacy in the home.

kent said...

"Dave's not here, man."

rhhardin said...

I've never understood the police announcing themselves deal.

It doesn't mean it's the police if somebody says it's the police.

It just means somebody wants you to open the door.

If the police really want you to open the door, they should shout fire.

garage mahal said...

I don't know what the normal response is to cops knocking on your door. Is it to sit still silently, keep watching TV, or reading a book -- thereby making no noise inside? I think an innocent or guilty person alike would make some sort of noises inside upon hearing cops pounding on your door.

Irene said...

Doesn't this also fall under the "plain view" (senses) exception?

Almost Ali said...

This is really a Tea Party question/scenario. The government and bureaucrats are pushing in from every angle - in your "junk," your luggage, your car, your bed, your body. Everything from red-light cameras to eminent domain, it's open season on liberty. Time to push back. Hard.

Coketown said...

Hey, at least they knocked!

Florida said...

The police can do anything they want to do up to and including shooting you twice in the chest and killing you as you stand in your front yard doing nothing illegal whatsoever.

And they will face no repercussions for your killing.

It is a shame that Justice Kennedy is playing refer word games while the paramilitary are killing innocent men and women.

http://latimesblogs.latimes.com/lanow/2009/03/cop-who-shot-in.html

edutcher said...

Interesting point. Can the defense lawyer ask, "And how, officer, would you know what marijuana burning smells like?", as a way of impugning his testimony?

A great Perry Mason moment.

Sigivald said...

Isn't marijuana still, in most jurisdictions, illegal? (As I believe it is in Kentucky.)

Smelling marijuana smoke would thus be direct evidence of criminal activity.

(Even in places where mere possession of small amounts is not criminal, it might suffice as probable cause of possession of an amount that IS, maybe, plausibly.

In states that have no state law against possession at all, that'd be a definite no-go.)

My impression had been that if the police have probable cause to believe there's illegal activity, let alone direct evidence of it they don't need a warrant at all.

What am I missing?

(Note that I'm completely ignoring the "exigency" thing and destruction of evidence - why isn't smelling illegal activity directly sufficient to bypass a warrant requirement?)

Florida said...

Here's a little cop secret I picked up while reporting the crime beat for 15 years: Cops let people speed.

You know how you'll be driving down the interstate and the speed limit is 65, but everybody is going 75?

There's a reason cops let people do this ... it's so that everyone is always speeding ... just a little bit. By agreement amongst cops.

And so this way, cops can pull over anyone they choose to ... since technically everybody is breaking the law and providing them with the crucial probable cause the Supreme Court requires.

If cops clamped down, people would learn over a very short period of time that they have to drive 65 to avoid a ticket. But then the police would lose their ability to pull over and interrogate whoever they want.

That's why they let you speed. They want the power to interrogate anybody they choose.

And by letting you speed ... they have carte blanche.

traditionalguy said...

The charge should have been "Reckless Sound Making". Clearly the homeowner has the duty to avoid scaring the police who are listening at his door.

EnigmatiCore said...

Florida, impressive conspiracy theory. I see a flaw, though.

"And by letting you speed ... they have carte blanche."

Which means we can deny them that power by simply not speeding.

Marshal said...

Replies Scalia: "So basically the police were taking advantage of the stupidity of the criminals, is that right? That's terrible, that's not fair, is it?"

I hate this question by Scalia, and hope it was sarcastic. Of course police can take advantage of the stupidity of criminals.


It seems established (admitted by the KY assistant AG) that if the suspects told police they could not enter without a warrant the police would not be able to claim exigent circumstances. So the best question is why silence should be "construed" as permission. If you have the right to tell them no, saying nothing should not mean yes.

Marshal said...

EnigmatiCore said...

Which means we can deny them that power by simply not speeding."

Actually, this tends to raise suspicion unless you're 60 or asian. Then they follow you and pull you over for not coming to a complete stop at a right turn or stop sign.

You don't really believe police reports claiming they caught someone after running a stop sign do you?

Luckily, Ann is now safe to not speed.

Big Mike said...

Kennedy uses this opportunity to ask why the smoking of marijuana itself doesn't constitute the destruction of evidence.

I'm not in favor of legalization of marijuana, but nevertheless it's a good question.

jeff said...

I certainly hope not. There should be a incredibly high standard before the state invades a persons home. Without a warrant, there should be a reasonable expectation of serious injury or death. Not that someone might be smoking some pot. Or playing poker for money. Or stealing cable. And can we knock it off with shooting the dogs?

sunsong said...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Timon said...

We need a Miranda for stops and searches.

dbp said...

Kennedy uses this opportunity to ask why the smoking of marijuana itself doesn't constitute the destruction of evidence.

This reminds me of a possibly apocryphal story of insurance fraud: A man, after smoking a rare and expensive box of cigars, placed a claim that they were destroyed in a series of small controlled fires.

dbp said...

If smoking marijuana is destruction of evidence, wouldn't any consumption of an illegal drug also be destruction of evidence?

The purpose of using drugs is their effect, not to get rid of them. If they could have a magic joint; gets you high but never gets shorter, they would love it.

Pete the Streak said...

dbp:"This reminds me of a possibly apocryphal story of insurance fraud: A man, after smoking a rare and expensive box of cigars, placed a claim that they were destroyed in a series of small controlled fires."

Claim denied. Destruction by fire was an intentional act by the insured. Possibly arson too.

Nice story, though.

bagoh20 said...

At my house, consensual and non-consensual sex sound the same. I need to get some forms printed up.

Revenant said...

Breaking down a door to make an arrest for a nonviolent misdemeanor committed in a private dwelling might be ruled Constitutional, but that won't make it less appalling.

This is a good example of how a policy can start out with noble intentions and slowly, over time, drift into total insanity.

dbp said...

Florida: "...That's why they let you speed. They want the power to interrogate anybody they choose.

And by letting you speed ... they have carte blanche."

And just to get all catch-22ish, if you are not speeding when everyone else is--this is evidence you are trying to hide something and hence probable cause.

Really, who hasn't been driving late at night in ideal conditions and come upon someone (male and in his 20's)driving exactly the speed limit? You know he is drunk and doing his best to avoid a Breathalyzer test.

John Burgess said...

MadisonMan: Once the sewage leaves the borders of the house, the police certainly can search it without a warrant. Arguably, once the toilet is flushed, it could be searched under the theory of abandonment. You didn't flush it just to keep your turds safe, after all...

The big question in this case is whether the police created the exigency so that they didn't need to get a search warrant. If they did it in bad faith, the search is bad and its fruits will be tossed.

Even if they did it in good faith, if their acts created the exigency, the search is most likely bad. That what SCOTUS is going to be deciding.

Here, the cops went to the wrong apartment in a buy-bust. They were supposed to go to the 'apartment on the right' but they went to the 'apartment on the left', where they smelled ganja.

bagoh20 said...

I have a serious problem with home invasion policing. It's extremely dangerous to the innocent, including seniors, children and pets, in other words, the very ones most needing our protection from violent armed men with attitude. And that would be true even if we had no constitution, which it usually violates in the most direct way possible. Few things piss me off as much as one of these assaults where the family is terrorized, the dog shot, house destroyed and no serious crime is prevented. Is that community better off or worse after that. Protect and serve indeed.

Trooper York said...

bagoh20 said...
At my house, consensual and non-consensual sex sound the same. I need to get some forms printed up.

That's pretty impressive man. You have a goat that can sign her name. You should be on TV dude.

bagoh20 said...

"You have a goat that can sign her name."

And she eats beer cans - it's a symbiotic relationship. I love her, even with the goatee.

dont tread 2012 said...

Well, if cops show up claiming they can smell burning dope from outside the house, you probably:

1. have a window open
2. had a neighbor blow you in
3. didn't share with the neighbor
4. had a number burning when the PAL rep showed up looking for money

Moral: insist congress share whatever it is they are smoking. Problem solved.

Lem said...

I think the Pima County Sheriff would consider that an extreme move that would contribute to building levels of vitriol.. as high as 11.

We cannot have anymore of that.

Shanna said...

Really, who hasn't been driving late at night in ideal conditions and come upon someone (male and in his 20's)driving exactly the speed limit? You know he is drunk and doing his best to avoid a Breathalyzer test.

And if he's lucid enough to drive that well, then why bother to pull him over? He's causing no one any harm.


A cop pulled me over in the parking lot because he "thought I wouldn't have stopped if he weren't there". Mind you, there was no stop sign, and no legal reason to stop if he hadn't been there (which is what I told him). He told me I should be "nicer to cops". Jerk.

George Myers said...

In Canada they have (had?) "Her Majesty's Search Warrant" which allows officers to search any boat, house, dwelling or person I think under suspicion of being involved in the drug trade I recall handed it to read. An alleged substance found in a pillow, had my friend served and deported. Had the house torn down when the Province insisted it be painted. Years later vigilantes burned down a "crack dealer" in a house under suspicion. Maybe the US should allow a similar warrant and practice, i.e., you may read this...or decriminalize cannabis.

MadisonMan said...

Shanna, I think he was flirting with you.

I Callahan said...

And if he's lucid enough to drive that well, then why bother to pull him over? He's causing no one any harm.

Thank You Thank You Thank You.

This is what drives me nuts. Drunk driving tickets exist to make municipalities and lawyers richer; they do NOTHING to stop some moron who's blowing .2 and runs into someone.

tw: "errys" The "errys" of your ways?

Methadras said...

The entire concept is offensive on it's face. The fact that authorities can act without impunity at this level and have it adjudicated as an exercise in Constitutional jurist prudence at your expense should you choose to do so to establish your rights is beyond offensive.

This will fall right in line with search and seizure precedent and there is little recourse even if you are wrongfully targeted. It's bullshit.

The Crack Emcee said...

"Can the police break down your door and burst in on you if they smell marijuana burning?"

They can - but what happens from there is on them.

Suburbanbanshee said...

Re: smelling marijuana, I believe they train cops to recognize the smell. When I was a Brownie, I learned the smell while selling Girl Scout cookies. My dad was with me, and told me to remember the smell (which he knew from teaching junior high). I still can't believe anybody willingly subjects themselves to that stink.

This sounds like an old neighbor downstairs in my apartment building. The guy kept going off his meds and going onto drugs. The cops tried hard not to arrest him, because he'd gone to high school with the owners and lots of them, and because they knew he was annoying but harmless. They would stop by whenever he started running down the halls banging on doors, and he would run back to his apartment and get quiet.

But one day he panicked when they showed up, and started flushing his drugs and burning his marijuana (which my other neighbors tell me was VERY noticeable outside the apartment, both under the door and out the window; I believe it from other smells in the building).

When the cops told him they'd have to take him in now, he panicked more and said he had a rifle (which they were almost sure he didn't). Unfortunately, his window overlooked an elementary school up the hill, so the cops decided they couldn't overlook it anymore.

So the local SWAT team came and the building was evacuated; but eventually they just coaxed him out. They evicted him and made him go to a treatment home, after that, and I guess he's doing well under supervision like that. I slept through most of the excitement, though, and my nose was pretty clogged that day; so I can't really opine myself.

Calypso Facto said...

edutcher: as suburban alludes to, police (and military) officers are introduced (that's the story) to the smell of pot in a classroom controlled burn.

No way this bust should get upheld. But the flexibility of the leftist legal mind never fails to amaze me: Constitutional rights mean something when they support the conclusion, but are only guidelines when they don't.

dbp said...

"And if he's lucid enough to drive that well, then why bother to pull him over? He's causing no one any harm."

I aggree for the most part. The only reservation I have is that while an impaired person can successfully drive in a straight line, would they be able to avoid something unexpected?

Badger said...

Whether exigent circumstances exist to allow the police to break down your door depends on the crime they are investigating. Althouse’s late colleague, the preeminent Gordon Baldwin, argued a case on this issue to the Supreme Court in the early 1980’s. If I recall, the police were chasing a suspect for a non-jailable offense and he ran into his house. The police broke in and the Court suppressed the evidence.