WASHINGTON
Police officers who smell marijuana coming from an apartment can break down the door and burst in if they have reason to believe this evidence might be destroyed, several Supreme Court's justices suggested Wednesday.
In the past, the high court has said police usually cannot enter a home or apartment without a search warrant because of the 4th Amendment's ban on "unreasonable searches and seizures."
But the court's conservatives said during arguments in a drug case Wednesday they favored relaxing that rule when police say they have an urgent need to act fast. Police had banged on the apartment door of Hollis King in Lexington, Ky. about 10 p.m. five years ago after they detected the smell of marijuana. They broke in the door when they heard sounds inside and arrested King for marijuana and cocaine possession.
Last year, the Kentucky Supreme Court ruled this search unconstitutional, but the justices sounded as though a majority will reverse that ruling.
"Everything done here was perfectly lawful," commented Justice Antonin Scalia.
"There's nothing illegal about walking down the hall and knocking on somebody's door, and if, as a police officer, you say, 'I smell marijuana', and then your hear the flushing, there's probable cause," said Chief Justice John Roberts.
Several of the court's liberal justices, who grew up in apartments in New York City, expressed surprise.
If the court rules this way, "aren't we just simply saying they (police) can walk in whenever they smell marijuana without bothering with a warrant," asked Justice Sonia Sotomayor. "We start with the strong presumption that the 4th Amendment requires a search warrant," added Justice Ruth Bader Ginsburg.
Since the war on drugs began in the 1980s, the Supreme Court has steadily given police more leeway to search cars, travelers and baggage. But the justices have been reluctant to permit searches of homes without a warrant.
The key issue in Kentucky v. King is whether an "exigent" or emergency circumstance allows the police to enter a resident without a warrant. Obama administration lawyers joined the case on the side of the state's prosecutors.
The police who broke into the apartment "reasonably believed that there was destruction of evidence occurring inside," said Ann O'Connell, an assistant to the Solicitor General.
Ginsburg said it was unclear what prompted the police to act. "It was kind of vague. They heard movement
There was nothing about a toliet flushing."
"It's our position that the court should assume there was an exigency in this case," O'Connell replied.
Scalia said the police can't go wrong by knocking loudly on the door. "Criminals are stupid," he said, and they often cooperate with police when they are not required to do so. They might open the door and let officers inside, or if not, the police can break in.