COURT SHOULD RULE ON THE SIDE OF PRIVACY

- - Six decades ago, the Supreme Court ruled that police could not
enter a residence without a warrant just because they smelled burning
drugs - in that case, opium.

Today, the high court is revisiting the issue and its decision could
have profound implications for personal privacy and police power.

In Kentucky, in 2005, police went to an apartment looking for a
suspect, knocked loudly on the door, shouting "This is the police."
They had no warrant.

The officers said they smelled marijuana and heard noises inside that
led them to believe someone may be preparing to destroy evidence.
They kicked in the door. Police didn't find their suspect - he was in
another apartment - but did arrest a man for possessing marijuana.

The question before the court is when and whether police can take
advantage of "exigent circumstances" - circumstances such as the
possibility a suspect will escape, the threat of imminent danger or
the destruction of evidence - to enter a residence without a warrant.

Government lawyers argued there was no violation of the Fourth
Amendment, which forbids unreasonable searches, because the police
had acted lawfully every step of the way.

That argument is a major stretch. In this case, police could have
watched the apartment while they got a search warrant based on the
smell of marijuana. Instead, they created the situation in which an
exigent circumstance - the possibility that evidence could be
destroyed - by knocking violently on the door and giving the
appearance they were about to enter the apartment.

Justice Sonia Sotomayor framed the issue clearly during arguments
last week: "Aren't we just simply saying they can just walk in
whenever they smell marijuana, whenever they think there's drugs on
the other side? Why do we even bother giving them a warrant?"

Some justices, including Antonin Scalia, seemed to have no problem
with the actions, suggesting there are too many constraints on law enforcement.

Allowing the police to create circumstances they can then use to
violate the Fourth Amendment protection against unreasonable search
and seizure would be a blow to personal privacy.

The justices should ask if the whole process used by police was
reasonable. The answer should be "no."