JUSTICES CONSIDER WHEN POLICE MAY ENTER WITHOUT WARRANT

Kentucky police were following a man who had just sold drugs to an
undercover informant. They entered an apartment breezeway, heard a
door slam and found they had two choices.

Behind door No. 1 was the dealer. And, unfortunately for him, behind
door No. 2 were Hollis King and friends, smoking marijuana.

Smelling the drug, the officers banged loudly on King's apartment
door and identified themselves as police. The officers said they
heard a noise and feared evidence was being destroyed. They kicked
down the door and found King, two friends, some drugs and cash.

King was sentenced to 11 years in prison, but the Kentucky Supreme
Court overturned his conviction. It said that the officers had
entered the apartment illegally and that the evidence they found
should not have been considered in court.

On Wednesday, the case made its way to the U.S. Supreme Court, where
it will provide another chance for justices to decide when police may
enter a home without permission or a warrant and not violate the
Constitution's protections against unreasonable searches.

Justice Elena Kagan spelled out the worry for some on the court.

"One of the points of the Fourth Amendment is to ensure that when
people search your home, they have a warrant, and of course there are
exceptions to that," she said.

Agreeing with a test proposed by Kentucky prosecutors for when such
searches are lawful could mean "essentially eviscerating the warrant
requirement in the context of the one place that the Fourth Amendment
was most concerned about."

The case before the court was about one of the exceptions Kagan
mentioned: so-called exigent circumstances. Those arise when police
have reason to suspect criminal activity is underway, but think that
if they take the time to get a warrant, a life may be endangered, a
suspect may escape or evidence may be destroyed.

In this case, the Kentucky high court said police could not create
the emergency they say prevented them from obtaining a warrant.

Kentucky Assistant Attorney General Joshua Farley said the Lexington
police officers in this case had probable cause to search the
apartment - the smell of marijuana led them to think a crime was
being committed.

But there was no time to get a warrant, he said, because they heard
noises that led them to think the evidence was being destroyed.

When everything police do is lawful - in this case, choosing the
apartment because of the smell of marijuana, knocking on the door,
announcing their presence - the evidence they recover should be
admissible in court, Farley said.

Some justices seemed troubled by the prospect of police wandering
halls - "They go to the apartment building and they sniff at every
door," Justice Ruth Bader Ginsburg proposed - to find cause to search.

Justice Sonia Sotomayor worried that agreeing with Farley would mean
that police could always enter without a warrant if they thought
drugs were being used on the other side, because police could always
say they feared that the evidence would be destroyed.

Jamesa J. Drake, an assistant public defender representing Hollis,
said the odor of marijuana plus the sounds the police said they heard
were not enough to create the urgent circumstances necessary for
bypassing a warrant.

But she faced some stiff opposition.

Justice Antonin Scalia said the police did nothing wrong. When they
knocked on the door, the occupants could have answered and told
police that they could not come in without a warrant.

"Everything done was perfectly lawful," Scalia said. "It's unfair to
the criminal? Is that the problem? I really don't understand the problem."

Law enforcement, he said, has many constraints, "and the one thing
that it has going for it is that criminals are stupid."

But Drake said law-abiding citizens might not know how to act if
police pounded on the door at 10 p.m. and demanded entry.

"Under our test, the police act unreasonably when they convey the
impression to a reasonable person that entry is imminent and
inevitable," she said. The problem, she said, is when a police
officer acts as if he has a warrant but does not.

Chief Justice John G. Roberts Jr. proposed a different scenario. It's
early evening, the officer "knocks quietly on the door and says,
'We're the police, can we talk?' "

"And then there was the smell of marijuana. And then he hears the
sounds that do convey to a reasonable police officer that evidence is
being destroyed. At that point, can they enter without a warrant?"

"Yes," Drake answered.

Farley reminded the court that it took the case to decide whether
lawful actions by police could impermissibly create exigent circumstances.

"Officers should not be held accountable for unlawful reactions by
suspects," he said.

The case is Kentucky v. King.