Supreme Court Hears 4th Amendment "Knock Knock" Case

Adam Liptak of the New York Times reports on yesterday's Supreme court oral argument in Kentucky v. King, about when the police can enter your home without a warrant, claiming exigent circumstances.

police officers in Kentucky were looking for a suspect who had sold cocaine to an informant. They smelled burning marijuana coming from an apartment, knocked loudly and announced themselves.

Then they heard sounds from inside the apartment that they said made them fear evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

Orin Kerr points out the facts of the case are not quite clear. [More...]

According to the factual findings of the trial court, the officers “banged on the door of the apartment . . . identifying themselves as police officers and demanding that the door be opened by the persons inside.” That is, the officers didn’t just knock and announce themselves: They knocked, announced their presence, and demanded to be let inside. King also notes that the testimony of the officers was that they heard some sort of sound inside, but the sound was of things being moved inside, rather than sounds of evidence being destroyed. At the suppression hearing, the officer testified that he couldn’t tell what the sound was, but that the sound was “possibly consistent” with the destruction of evidence.

I agree with Orin that the entry needs greater examination. In every "knock knock" case I've ever defended, usually in the "knock and talk" context where the DEA knocks and claims they just want to talk to you, the DEA say they knocked, my client answered the door, they asked if they could come in, and my client said yes. On the other hand, in every case, my client has said s/he didn't give the officers permission to enter, that the DEA stepped right over them and entered their home, shoving them out of the way, the second they answered the door.

In a he said/he said suppression hearing between your client and the DEA, who do you think the Judge usually believes? Knock and talks are a ruse that should be stopped, unless the police get a written or videotaped verbal consent to enter.

Second lesson from the oral argument: Flush your toilet at your own risk.

Because if officers smell the pot from the outside, think the occupants are trying to get rid of it and burst in without a search warrant to prevent evidence from being destroyed, some justices indicated they would approve.

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  • Display: Sort:
    Are you legally obligated to answer (none / 0) (#1)
    by nycstray on Thu Jan 13, 2011 at 03:28:13 AM EST
    the door if the cops knock and announce themselves? If they smell pot, can they bust in without a warrant if you don't open? Can you just speak to them through the door?

    I wouldn't let the cops in because my dog announces a knock with a bark, and some cops tend to shoot dogs that bark and weigh more than 5lbs, but I'm just wondering where we stand in a situation like that (cops knocking, not necessarily the pot smell in the bkgrd :) ) I've got the plead the 5th and  ask for a lawyer drilled in my head, now I need the cop knock mantra :) I generally step on the porch when someone comes to the door and close it behind me because of the dog (don't want her to suddenly break training and hit the street!), but this made me think of Prof Gates on his front porch . . .

    I would not open the door and (none / 0) (#2)
    by Jeralyn on Thu Jan 13, 2011 at 04:15:45 AM EST
    instead would ask through the closed door what they want. If they say they want to come in, ask them to return when they have a warrant. But I don't give legal advice here, so you shouldn't accept this as an answer.

    All I will say is you are under no obligation to answer any questions other than providing your identification when an officer stops you and asks for it. And since generally you aren't in custody during a consensual encounter (like talking to them at the doorway of your home), you aren't entitled to Miranda rights and any answers could be taken out of context and used against you later.

    As a federal court in California put it (United States v. Shaibu, 920 F.2d 1423, 1427 (9th Cir. 1990)):

    "We do not expect others to walk into our homes, even if the door is open, without first requesting permission to enter.  That the police would so enter, without request, creates an impression of authority to do so....coercion is implicit in situations where consent is obtained under color of the badge...we interpret failure to object to the police officer's thrusting himself into defendant's apartment as more likely suggesting submission to authority than implied or voluntary consent....Such submission is not effective consent." at 1427

    Not even identification (none / 0) (#3)
    by Ben Masel on Thu Jan 13, 2011 at 12:20:25 PM EST
    unless they assert they've got the reasonable articulable suspicion predicate of a Terry stop. See Hiibel.

    Thanks :) (none / 0) (#4)
    by nycstray on Thu Jan 13, 2011 at 12:51:37 PM EST
    I really doubt I'll have cops knocking on my door, but it's always good to know what is appropriate/allowed. Years ago I did find myself in a bit of a pickle by doing what the cops asked of me in a totally innocent seeming situation.

    Thanks for the Fed court quote.


    Why would you ever answer the door for the police? (none / 0) (#6)
    by sangreal on Thu Jan 13, 2011 at 11:10:58 PM EST
    You have nothing to gain. If they have a warrant they will come in anyway. If they don't, you have no business talking to them.

    Smelling School (none / 0) (#5)
    by Webb on Thu Jan 13, 2011 at 02:05:52 PM EST
    Jeralyn, when I read the Times article I thought of a mutual friend who was busted for the first time in his long life in Boston for smoking. The officer knew it was marijuana because he smelled it from over 100 yards away. Of course our friend was attending a legalization rally of over 30,000 at the time, and yet the officer was able to distinguish what our friend was smoking from everyone else at the rally. My question -- do they have "smelling class" at police academies? Webb Hubbell

    Hi Webb, (none / 0) (#7)
    by Jeralyn on Fri Jan 14, 2011 at 12:29:40 AM EST
    Thanks for stopping by. Yes, that was an absurd arrest. Keith wrote up the trial in detail, it's a great read for others, so I won't give away the ending.

    As to the smell, yes, I'm sure they have scent classes, especially for their k-9s. There's an interesting discussion on the use of fake scents here, where the cops who are writing in talk about the problems training with live drugs.