Cannabis scented incense is going to put a kink in this ruling.
Posted on 01/18/2011 2:42:31 PM PST by triumphant values
WASHINGTON — More than 60 years ago, the Supreme Court ruled that the police were not entitled to enter a residence without a warrant merely because they smelled burning opium. Related
Times Topic: U.S. Supreme Court On Wednesday, at the argument of a case about what the police were entitled to do on smelling marijuana outside a Kentucky apartment, two justices voiced concerns that the court may be poised to eviscerate the older ruling.
“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?” Justice Sonia Sotomayor said, considering what a decision against the defendant would signal to the police. “Why do we even bother giving them a warrant?”
The old ruling, Johnson v. United States in 1948, involved the search of a hotel room in Seattle. The smell of drugs could provide probable cause for a warrant, Justice Robert H. Jackson wrote for the majority, but it did not entitle the police to enter without one.
“No suspect was fleeing or likely to take flight,” Justice Jackson wrote. “The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction.”
In the new case, 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.
(Excerpt) Read more at nytimes.com ...
So what changed—democRATs control?
In Holder’s case—”must be whities in there. Push the door in.”
The trashing of the constitution in the name of the war on drugs has been a pretty bi-partisan affair. Wouldn't you agree?
Of course if the police smelled tobacco smoke, the lefties would want CPS to remove the children from the home.
Historically, the standard for entry w/o a warrant was “imminent threat to health and safety”, not “fearing the destruction of evidence”.
Police should ALWAYS have to get a warrant, else the “evidence” is inadmissible. Otherwise, the cops’ll ALWAYS “smell marijuana” before an illegal entry.
This is a tough one. While I’m glad to see them bust the bad guys—you know they will use/abuse this going forward.
All they have to say is I smelled drugs so we went in. How the heck do you prove that the cop was lying. What happens when/if they don’t find drugs? Can you sue them? If so, I think that’s reasonable. But we know they won’t allow that because then no cop would use this tactic.
How do you define a “bad guy”?
Definitely!
If they 'smell' something at the time, I'm sure there will be more scents later. Stand back, watch while getting a warrant. Take time to get it right.
I generally don’t have a problem with most of the “war on drugs”.
That said, I hope the justices find this search to be illegal. I think a standard of “the sounds of evidence possibly being destroyed” would be a gaping loophole in the 4th Amendment that would allow law enforcement to peform warrantless searches in almost any situation.
Can a police officer discern the difference between the sounds of a law abiding citizen flushing after using the toilet and a drug using flushing his dope?
I've had similar happen to me, but in a vehicle.
The local yokel pulled me over (for not a damn thing) asked for my license and registration, which I produced from a pocket built into the seat cover.
He told me "that's supposed to be in the glove box". I took it that to mean he wanted to see inside the glove box.
He then asked if he could search my truck, I said "absolutely not". Then he said, leaning in towards me, with a smirk on his face, "I smell marijuana". That pissed me off. I yelled back at him, right in his face, "you and I both know that's bullshit!"
He fliched, and backed off.
I wouldn't recommend to others that they yell at police for anything. I guess I got lucky, but I had "right" on my side, and that lying goon damn well knew it.
You can also stop all action by saying, I want to READ the warrant before letting you (them) in..
Yes, it works. Don’t asked me how I know./s
Cannabis scented incense is going to put a kink in this ruling.
"Oh well, we tried, but the US Supreme Court overturned us. Golly shucks." Cynical liars the lot of them.
Every time the cops want to bust down a door in the movies all they have to do is ask, winkingly, “Is that a plaintive cry I hear?” Why not just pretend you thought someone was in trouble?
I was smoking a hand rolled cigarette. He asked me what it was and I told him a cigarette. He said it "smelled funny" and I said "it's 100% tobacco so maybe that's why." He pressed the issue further so I extended my hand with the lit cigarette in it and said "Here." He said "What am I supposed to do with that?" My reply "You're the one who wants to know what it is."
When I got home I immediately checked my tail light which was working fine as I expected.
“Historically, the standard for entry w/o a warrant was ‘imminent threat to health and safety’, not ‘fearing the destruction of evidence’”
How can evidence be destroyed before it’s evidence, anyway? It’s not evidence until the cops get their hands on it. If everything that could potentially be used at trial is viewed as the property of the police even before they know it exists, we’re living in Cop’s Paradise.
Do you support the police searching a home because they smell somebody smoking a joint?
Really?
Absurd.
I talking about slamming they way into a house vs getting a warrant.
Really! And I don’t think that’s absurd!
Personally I think they should lock up anyone smoking weed. They think they act normal and can’t be convinced otherwise. Some more than others.
I can’t stand being around those idiots. I’ve witnessed enough of their crap.
The only reason anyone should be doing it is for pain management
or something medical.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.