BROKEN-DOWN-DOOR POLICING

A Kentucky Marijuana Arrest Presents a Troubling Threat to Americans'
Right to Privacy.

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 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.