Legal Commentary

Supreme Court Hears 4th Amendment "Knock Knock" Case

By Jeralyn

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.

Full post as published by TalkLeft on January 13, 2011 (boomark / email).