Your Castle Under Siege: When the Police Can Enter Without a Warrant
By Caryn J. Adams
Managing Partner - Criminal Division
The Gasper Law Group
The Supreme Court recently handed down its decision in the Kentucky v. King case in an opinion written by Justice Alito. The vote was 8 to 1. The case will stand for the proposition that law enforcement may rely on exigent circumstances to enter your home even if they don’t have a warrant and even if the actions of law enforcement contributed to or caused the exigency. Generally, the Fourth Amendment of the U.S. Constitution prevents the police and their agents from entering a person’s home without (1) a warrant, (2) consent, or (3) “exigent circumstances.” Exigent means pressing or demanding, so exigent circumstances are those where the situation does not allow law enforcement to wait for a warrant. Traditionally, legally recognized exigencies fall into three categories: (1) the police are pursuing a fleeing felon, (2) there’s a risk that evidence will be destroyed if the police wait, or (3) there’s an emergency where someone’s life is or could be at risk.
In the King case, Kentucky police were following a drug dealer. There were two apartments. The dealer went into the apartment on the right. The police mistakenly thought he was in the apartment on the left. They smelled burning marijuana outside the apartment on the left and they knocked on the door. They heard movement inside the apartment that might have been consistent (or so they said) with the destruction of evidence. The police kicked in the door of the apartment on the left and found Mr. King and his friends smoking marijuana in the apartment. They searched the apartment and found more drugs.
What’s surprising to many of us in the defense community is how little it took in this case before the court would justify entering the apartment. The smell of marijuana alone almost certainly wouldn’t have been enough to make the entry lawful. Then the police knocked on the door, and the people inside the apartment moved around in response. Nothing else happened. The police had no idea who was inside or what they were actually doing. In fact, the police were at the wrong apartment entirely. They certainly had time to get a warrant, but they chose not to do so. Justice Ginsberg, in her dissenting opinion, wrote, “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.”
The stronger the police grow, the more important the role of a good defense attorney becomes.
“The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and free from surveillance.” –Justice Jackson, delivering the opinion of the Court in Johnson v. United States, 333. U.S. 10, 12 (1948)