Constitution Daily

Smart conversation from the National Constitution Center

When police accidentally catch a drug user, can they arrest him?

January 14, 2011 by Donald Applestein Esq.


This week the Supreme Court heard argument in Kentucky v. King, a case that involves the question of the warrant requirement under the Fourth Amendment before a search can be conducted of someone’s home or apartment.

To get a warrant, police must convince a judge that there is “probable cause” for its issuance. Like virtually every rule in law, there are exceptions.  If the police find themselves in an emergency situation – “exigent circumstances” – they don’t need to get a warrant.  For example, if they hear a violent argument or gun shots coming from a home, they don’t have to get a warrant.  They can break in.  However, there are exceptions to the exceptions. If the police themselves create the exigent circumstances, they can’t break in.  Or, if they do, any evidence of criminality will be suppressed at the subsequent criminal proceedings.


Most of the facts are not in dispute.

  • Undercover officers made a drug buy and followed the suspect into an apartment building.  Meanwhile, uniformed officers were called and entered the apartment building.
  • However, when they got in, they realized they did not know whether the suspect entered the apartment on the left side of the hall or the right.  They smelled marijuana from the one on the left.  The officers testified they heard “something”, like “something being moved around” and based on their experience, concluded that evidence was being destroyed.  (One officer testified that he could not tell what the sound was.)
  • They knocked on the door, announced themselves, broke down the door and found Mr. King with marijuana and cocaine.  The problem was, Mr. King was not the drug seller. The police had entered the wrong apartment because they did not know which apartment the drug seller had entered. The drug seller was in the apartment on the right.

The trial court suppressed the evidence.  The Kentucky Supreme Court found that the trial court’s findings were supported by the record and that they were “conclusive.”  On that basis, the Kentucky Supreme Court affirmed the suppression of the evidence.

At the Supreme Court

Most of the questioning by the Justices was along the lines you would expect.  Chief Justice Roberts said,

“There’s nothing illegal about walking down the hall and knocking on someone’s door, and if, as a police officer, you say, ‘I smell marijuana’, and then you hear flushing, there’s probable cause.”

Justice Scalia said criminals are stupid and they might open the door.

Justice Scalia said criminals are stupid and they might open the door.  He went on to say, that if they did, they could refuse police entry and tell them they had to get a warrant.  He commented, “Everything done here was perfectly legal.’

Justice Sotomayor, who grew up in urban apartment buildings, said, “We start with the strong presumption that the Fourth Amendment requires a search warrant.”   Justice Ginsburg added, “It was kind of vague. They heard movement …There was nothing about toilet flushing.” Just that the officers hear “something.”  She suggested that the record was unclear as to what caused the police to act.

The standard to be used

OK, you’re the judge.

  1. First, how would you rule: allow the evidence or suppress it?
  2. Second, what rule or standard should be used in deciding this type of circumstance?

One authority, Orin Kerr, a law professor at George Washington University, has suggested that under similar circumstances the police should be able to do only what any ordinary citizen could do – knock on the door and wait for a response, but they can’t knock in the door.   After all, the police were at the wrong apartment because of their own fault.

So, Your Honor, what say you?

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Photo credit: Flickr user steakpinball

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