WHEN SHOULD WARRANTLESS SEARCHES BE PERMITTED?

When can the police forcibly enter your home to search for evidence
without a warrant? That issue, pivotal to fundamental freedom, was
argued last Wednesday before the U.S. Supreme Court.

The case, Kentucky v. King, involves an arrest made on October 13,
2005 during a "buy-bust" operation that was being conducted at an
apartment complex by the Lexington-Fayette County Police Department.

An undercover informant positioned his truck in a lot adjacent to an
apartment building where the drug transactions would take place.

At the same time, Officer Gibbons parked his unmarked car where he
could see the informant's truck. Meanwhile, three other officers,
including Steve Cobb, waited at nearby locations.

Shortly after 10 p.m., after being alerted by Gibbons that a crack
cocaine sale had taken place, the three officers hurried to the
parking lot. While they were en route, Gibbons radioed a description
of the suspect and stated that he had entered the breezeway of
apartment building 1317.

After Cobb reached the scene and exited his car in pursuit, Gibbons
further radioed that the suspect was entering the right, rear
apartment. Cobb, however, was too far away from his vehicle to hear
this particular transmission.

When officers arrived at the breezeway, they heard a door slam shut
near the two rear apartments but did not see which of the two units
the suspect had entered.

They did, however, detect the "very strong odor of burnt marijuana"
coming from the left, rear apartment. Cobb thus believed it to be the
unit that the suspect had entered.

One of the accompanying officers knocked loudly on the door and
announced "police."

The officers immediately heard movement inside the apartment
consistent with the destruction of evidence, and feared that felony
drug evidence would be lost unless they entered.

So Cobb kicked in the door, and the officers conducted an initial
protective sweep of the premises in search of their original suspect.
While they didn't find him, they did discover 4.6 grams of powder
cocaine and 25 grams of marijuana in plain view.

A further search of the apartment uncovered crack cocaine, scales
with cocaine residue, and $2,500 in cash. At that point, Hollis King
and two other occupants of the apartment were arrested.

The officers eventually found their original suspect in the back
right apartment.

King moved to bar prosecutors from using the seized evidence against
him at trial, claiming that it was the product of an unconstitutional
search. The United States is the only nation in the world with an
"exclusionary rule" that thus rewards criminals for police misconduct.

When King's motion was denied, he pleaded guilty, received a 10-year
jail term, but reserved his right to challenge the legality of the
search on appeal.

After the Kentucky Supreme Court unanimously sided with King and
overturned his conviction, prosecutors successfully persuaded the
nation's highest court to hear the case.

APPLICABLE LAW

The U.S. Supreme Court has interpreted the 4th Amendment to the
federal constitution as barring police from conducting a warrantless
search of a private residence unless there exists both "probable
cause" and "exigent circumstances."

The latter include situations where police act reasonably to prevent
the possible destruction of evidence.

Applying that principle to this case, the strong odor of burnt
marijuana established probable cause, and the movement inside the
apartment after the police knocked on the door constituted exigent
circumstances.

Therefore, the forcible entry into the apartment was justified, right?

Not so fast, the attorney for Hollis King argues.

While he concedes the existence of probable cause, he maintains that
police should have used it to obtain a search warrant. By knocking on
the door and announcing themselves instead, he continues, the police
actually precipitated the movement inside the apartment.

Thus he claims that they themselves created the exigent circumstances
on which they then relied to kick in the door. King insists that the
search was therefore improper and the evidence seized as a result
cannot be used against him.

This is a close case that pits legitimate privacy concerns against
the need of police to make snap judgments, some of which may involve
matters of life and death.

Those differing perspectives were evident during last week's oral
argument, as the court's conservative justices appeared to side with
prosecutors while its liberal members seemed to support King.

On balance, though, prosecutors have the more compelling argument here.

It is undisputed that the officers acted in good faith. Nor is there
any question that they had a right to knock on the door and announce
themselves.

Contrary to King's assertion, the resultant movement inside the
apartment was a voluntary reaction of its occupants. They could have
chosen instead to remain quiet, or to simply open the door and tell
police to come back with a warrant.

Instead, they acted in such a way as to lead police to reasonably
believe that they were in the process of destroying evidence. And
under traditional legal principles, that constituted exigent
circumstances that justified the search and seizure.

The Supreme Court should reinstate King's conviction.