Pubdate: Tue, 18 Jan 2011
Source: Free Press, The (MN)
Copyright: 2011 The Free Press
Contact:  http://www.mankatofreepress.com/
Details: http://www.mapinc.org/media/2566

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."
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MAP posted-by: Keith Brilhart