By Mark Sherman
WASHINGTON — The Supreme Court isn't given to offering advice to people who are breaking the law, even in a minor way. But some justices on Wednesday effectively told those who might be sitting at home smoking pot when the police come knocking: Do not flush the toilet.
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.
The discussion arose during the court's consideration of a case about when the police can enter a home without a search warrant, which the Constitution normally requires.
There are exceptions, and the state of Kentucky argued that its treatment of Hollis King should be one such exception.
The issue for the justices is whether police action -- in this case, a knock on a door -- that triggers a reaction on the other side -- like noise that suggests destruction of evidence -- should justify the warrantless entry.
New Justice Elena Kagan said she worries the court could make it too easy for police to avoid the time and effort of getting warrant "in a very wide variety of cases." She said that view would require only that officers said they smelled "pot, we heard noise."
Yet several justices suggested that as long as the police reasonably suspect something illegal is going on and do not use deception or illegal means to gain entry, the search probably doesn't violate the Constitution.
Justice Antonin Scalia said the better response to the police knock is to respond and, if officers ask to come in, say "'Oh, heck, no, you can't come in; do you have a warrant?"
In King's case, he was entertaining two friends at his apartment in Lexington, Ky., on an early fall night in 2005. No one disputes that there was pot and a small amount of cocaine.
But police might never have known this were it not for a nearby undercover operation in which an informant purchased crack cocaine from a dealer. When the dealer entered King's apartment building, the police moved in to arrest him.
They heard a door slam in a hallway, but by the time they were able to look down it, they saw only two closed doors.
Their quarry had entered the door on the right. The police went left, after smelling the aroma of burnt pot coming from that door.
After they knocked, the officers said they heard noises they thought might indicate that evidence was being destroyed.
So they kicked in King's door, and finding the drugs, arrested King and his friends. King pleaded guilty to drug charges, but the Kentucky Supreme Court threw out the evidence against him and the conviction, ruling that the police did not have cause to burst into his home without a warrant.
The state court said the police cannot rely on urgent circumstances they themselves create to enter a home without a warrant.
Justice Ruth Bader Ginsburg wondered why police didn't get a warrant since the odor probably gave them reason to get one. "Instead of knocking, because once they knock they alert the people in there, let's get a warrant. We'll come back," Ginsburg said.
But Scalia was not showing any sympathy to King. With feigned outrage, he accused the police of "taking advantage of the stupidity of the criminals."
"That's terrible, that's not fair, is it?" he asked archly.
A decision is expected by early summer.
It was not mentioned in court Wednesday, but the police eventually found the suspected drug dealer in the apartment on the right. Prosecutors later dropped charges against him for reasons that are not explained in court papers.
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