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Supreme Court Debates Warrantless Entry When Police Smell Marijuana

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Recent Supreme Court decisions regarding search and seizure haven't exactly signaled an unyielding reverence for our 4th Amendment rights, so I shudder to think how the Court will rule on this:

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. [Washington Post]

Home searches generally require a warrant, even when probable cause exists (the smell of marijuana), but officers claimed their fear that evidence would be destroyed constituted an "exigent circumstances" exception to the warrant requirement. Ironically, however, the presence of police became known to the suspects only because the officers knocked and announced themselves. If any effort was made to dispose of evidence, it was obviously triggered by the police, who could have waited for a warrant rather than initiating contact right then and there.

If the Supreme Court upholds this search, police will be encouraged to creatively interpret any noises heard within homes they'd like to search, and it's hard to imagine what sorts of sounds couldn’t potentially be said to indicate possible destruction of evidence. Police who hear "sudden movements" after pounding on someone's door can claim to be concerned about destruction of evidence, but who wouldn't make a sudden movement if cops were shouting and banging on the door? Maybe I'm just putting on some pants. Maybe I'm hastily locking my dog in the bathroom so they won't shoot its brains out. People are going to react when disturbed in their homes and it's absurd to strip our 4th Amendment rights based on one of many possible explanations for the movements people make when you startle them.

Keep in mind, however, that this case involved a probable cause situation in which police did smell marijuana. Even the worst possible ruling still wouldn't give police the authority to randomly knock on doors with no evidence and perform emergency searches based on suspicious reactions from the people inside. But if the Court continues chipping away at the 4th Amendment at its current pace, I can't blame anyone for worrying that we're headed in that direction. Fortunately, some of the justices expressed serious concerns about giving police more leeway to perform emergency searches. This one could go either way and we'll be sure to keep you posted.

Cross-posted from Flex Your Rights

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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What does the Bible say about putting marijuana users in jail?

Jesus said, Whatsoever ye would that men should do to you, do ye even so to them. (Matthew 7:12).  

I know I would not want my child thrown in jail with the sexual predators, or my aging parents to have their house confiscated and sold by the police, over a little marijuana.   

What does the Bible say about putting marijuana users in jail?

As someone who is NOT a christian. I'm just giving you a kudos because even without the bible your statement is very true and justified. 

Smelling Marijuana

I smoke quite often and even I will occasionally mistake a smell, of say a skunk far out of site, for marijuana. To say that a police officer, who I assume could be trained, should be allowed to make that judgment and enter as he/she pleases is ridiculous. In fact there are so many things that smell similar to "weed" and even to some professionals could easily be mixed up. The only "sniffers" that I think we could trust would be dogs to do that job but then again I would say marijuana should be legalized, taxed and then restricted to adults.

Moxa or Mugwort Herb

It is next to impossible to tell the difference between the smell of burnt marijuana and the herb mugwort, or "moxa" in Chinese, which is used commonly in acupuncture and as a general incense.  Check out all the testimonials on the Internet -- some acupuncturists have been visited multiple times by the police.  My acupuncturist even has a sign on her door that reads "No, that is not America's favorite recreational drug you are smelling.  It's mugwort/moxa we use during acupuncture."

Police should never be given the power to break doors down over supposedly smelling marijuana.  Seeing as how many substances people burn mimic the odor, the default should be the belief that one is smelling an incense that resembles the smell of marijuana.  Once I even bought incense that was advertised as smelling like did!  It's just such a shame that our policies are so childish as to chase smells -- isn't it time we all (smokers and nonsmokers) acted like adults, had a grown-up discussion about marijuana, and legalized and taxed it once and for all?  To any rational human being that has truly looked at all the facts involved from an unbiased point of view, it is obvious that our policies are much more informed by hysteria/fear and lack of knowledge than by science and logic.

-- Bill

undrgrndgirl's picture


my acupuncturist knows others who have been arrested for moxa...

I can't believe...

I can't believe they can even get a search warrant based on the smell of marijuana.  It could be oregano.

Answer: avoid sidefumage

Can't guess how the Court will find, but a "marijuana smell" from smoking is almost 100% avoidable.  Simply eliminate messy wasteful hot burning joints and big bowl pipes and use a one-hitter (or if you have the money a vaporizer).  Merely requires that you have sifted your herb to an even particle size (#16 screening will do).

Further refinement: after any toke, instead of holding your breath, breathe 30 warm wet W's in and out of a Lunchspielhaus (breadbag) in honor of the Dawgwagner.  That way for sure your lungs will absorb maximum amount of identifiable aromatic substance before releasing anything into the ambient air.

its not at all difficult to

its not at all difficult to guess how the gang of 5 will find...

primus's picture

OK, so the cops temporarily

OK, so the cops temporarily lost sight of the 'perp' who zipped between two residences, with the cops hot on his tail.  He disappears into one of the units, but the cops don't see which one.  The cops come steaming up, seconds later, and smell what they believe is pot coming from one of the residences, whereupon they break into that unit, and don't find their perp.  Given the circumstances, I see no other logical conclusion than that the other door is the correct one; there wasn't time to spark up, and the perp would not wish to draw attention to himself, so if the cops' story is true, they should have gone into the other unit-- the one with no smell of pot, unless they couldn't figure that out.  The fact that the cops broke down the wrong door shows them to be lacking in the logic department, or else lying in their story.  Stupid or a liar; take your pick.

Pot lingers

My apartment hallway used to smell like pot 24/7 for a few years.The kids moved out and now I don't smell it but that could be because I smoke it once in a while.Just to answer primus,the guy could have smoked just before going out or just had a couple of pounds on the kitchen table ready to be packaged for sale.Fresh pot reeks.The point is that so many people smoke pot a pot smell is no justification to break into someone's home,period.I'm afraid that with your current supreme court makeup the cops will probably prevail every time regardless the strength of their case.You would think the fact that they wound up in the wrong apartment would be proof enough that their logic was flawed.I guess we'll just have to wait and see.

primus's picture

sicintired; the story says

sicintired; the story says the guys were smoking pot, and that is what the cops smelled.  I understood it to mean that they were toking as the door came down.  In that case, they used cop logic (Oxymoron alert) to make the wrong choice. 

The real reason pot is

The real reason pot is illegal is because the government doesn't want you to have industrial hemp.

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