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Justices Look Again at How Police May Search Homes
New York Times ^ | January 12, 2011 | Adam Liptak

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 ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events
KEYWORDS: constitution; donutwatch; fourthamendment; supremecourt; warondrugs

1 posted on 01/18/2011 2:42:35 PM PST by triumphant values
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To: triumphant values

So what changed—democRATs control?

In Holder’s case—”must be whities in there. Push the door in.”


2 posted on 01/18/2011 2:51:12 PM PST by TribalPrincess2U (demonicRATS= Obama's Mosque, taxes, painful death. Is this what you want?)
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To: TribalPrincess2U
So what changed—democRATs control?

The trashing of the constitution in the name of the war on drugs has been a pretty bi-partisan affair. Wouldn't you agree?

3 posted on 01/18/2011 2:55:35 PM PST by triumphant values (Never criticize that to your right.)
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To: triumphant values

Of course if the police smelled tobacco smoke, the lefties would want CPS to remove the children from the home.


4 posted on 01/18/2011 3:00:20 PM PST by Paleo Conservative
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To: triumphant values

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.


5 posted on 01/18/2011 3:01:50 PM PST by clee1 (We use 43 muscles to frown, 17 to smile, and 2 to pull a trigger. I'm lazy and I'm tired of smiling.)
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To: triumphant values

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.


6 posted on 01/18/2011 3:02:28 PM PST by for-q-clinton (If at first you don't succeed keep on sucking until you do succeed)
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To: for-q-clinton

How do you define a “bad guy”?


7 posted on 01/18/2011 3:03:58 PM PST by bvw
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To: triumphant values

Definitely!


8 posted on 01/18/2011 3:09:31 PM PST by TribalPrincess2U (demonicRATS= Obama's Mosque, taxes, painful death. Is this what you want?)
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To: clee1
Police should ALWAYS have to get a warrant, else the “evidence” is inadmissible.

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.

9 posted on 01/18/2011 3:13:03 PM PST by TribalPrincess2U (demonicRATS= Obama's Mosque, taxes, painful death. Is this what you want?)
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To: triumphant values

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?


10 posted on 01/18/2011 3:26:02 PM PST by Above My Pay Grade
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To: clee1

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.

11 posted on 01/18/2011 3:31:30 PM PST by BlueDragon
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To: triumphant values

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


12 posted on 01/18/2011 3:53:29 PM PST by triSranch ( Home of J.C. Calhoun and the Birthplace and Deathbed of the Confederacy)
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To: triumphant values

Cannabis scented incense is going to put a kink in this ruling.

13 posted on 01/18/2011 3:56:29 PM PST by TigersEye (Who crashed the markets on 9/28/08 and why?)
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To: clee1
State Supreme Courts could stop all of these cases if they really wanted to by just saying it was forbidden under their state constitution. But they use the US Constitution in their rulings so as to not jeopardize their re-election chances and let it get appealed to the federal courts.

"Oh well, we tried, but the US Supreme Court overturned us. Golly shucks." Cynical liars the lot of them.

14 posted on 01/18/2011 3:57:16 PM PST by triumphant values (Never criticize that to your right.)
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To: triumphant values

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?


15 posted on 01/18/2011 4:02:05 PM PST by Tublecane
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To: BlueDragon
I had a similar experience with a local Sheriff's Deputy. Pulled out about two miles behind me and caught up very quickly. Pulled me over and said I had a tail light out. Which I knew was not true.

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.

16 posted on 01/18/2011 4:07:21 PM PST by TigersEye (Who crashed the markets on 9/28/08 and why?)
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To: clee1

“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.


17 posted on 01/18/2011 4:08:45 PM PST by Tublecane
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To: TribalPrincess2U
"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. "

Do you support the police searching a home because they smell somebody smoking a joint?

Really?

Absurd.

18 posted on 01/18/2011 4:50:22 PM PST by Mariner (USS Tarawa, VQ3, USS Benjamin Stoddert, NAVCAMS WestPac, 7th Fleet, Navcommsta Puget Sound)
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To: Mariner

I talking about slamming they way into a house vs getting a warrant.

Really! And I don’t think that’s absurd!


19 posted on 01/18/2011 5:22:08 PM PST by TribalPrincess2U (demonicRATS= Obama's Mosque, taxes, painful death. Is this what you want?)
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To: TribalPrincess2U

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.


20 posted on 01/18/2011 5:27:43 PM PST by TribalPrincess2U (demonicRATS= Obama's Mosque, taxes, painful death. Is this what you want?)
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To: clee1

They’ll have every person on their team packing a different kind of “ham sandwich”.

One “ham sandwich” being a throwaway gun. Another being a baggie of pot they can plant. Another, a knife. Then whatever the situaton requires, can just be tossed in and wham! three or four police testifying the same lie versus one alleged criminal.


21 posted on 01/18/2011 6:01:24 PM PST by Secret Agent Man (I'd like to tell you, but then I'd have to kill you.)
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To: Above My Pay Grade
I generally don't have a problem with most of the "war on drugs".

So you don't have a problem with the elastic New Deal Commerce Clause?

22 posted on 01/18/2011 7:15:40 PM PST by Ken H
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To: Secret Agent Man

You forgot the “ham sandwich” that is their current favorite ,, a memory stick with kiddie porn on it..


23 posted on 01/18/2011 7:19:03 PM PST by Neidermeyer
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To: TigersEye
He might have been better off saying it looked funny. At least it would have been more honest.

With the city I was in (a small one where most who had been there for years either knew, or knew of most others) not all the cops were jerks, some of them were real stand up guys.

Before I left a about a year ago, one of the best told me he was going to retire. He'd had too much grief from trying to keep the jerks on the force in line. At least the chief had the sense to keep him as a Sargeant for as long as he could.

Oh well. All good things come to an end.

24 posted on 01/18/2011 8:45:05 PM PST by BlueDragon
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To: BlueDragon

That’s when I smile sweetly and say, Officer, I am recording this encounter to use as evidence against YOU in the false arrect case I’ll be filing in 20 minutes.....”


25 posted on 01/19/2011 3:23:01 AM PST by clee1 (We use 43 muscles to frown, 17 to smile, and 2 to pull a trigger. I'm lazy and I'm tired of smiling.)
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