Constitution Daily

Smart conversation from the National Constitution Center

You be the judge: Drug dealers and the fourth amendment

June 1, 2011 by Donald Applestein Esq.


Recall earlier, Kentucky vs. King involved the search of a defendant’s apartment where the police broke into the wrong apartment. Undercover police observed a drug “buy” and radioed uniformed police that the suspect was about to enter an apartment house. The uniformed officers drove to the apartment house. As they ran toward the apartment house, they heard the outer door close. They entered the apartment house only to find that there were doors on the right and left sides of the interior hallway. They didn’t know which apartment the suspect had entered.According to the police, they detected the smell of burning marijuana coming from the door on the left. They knocked and announced themselves and according to one officer heard sounds like people moving around. (Another office testified that while there were sounds, if was not possible to determine what they meant.) The police knocked again, identified themselves and then broke the door down. They found Mr. King with marijuana and powder cocaine.

The original suspect was in the apartment on the right.

The High court refuses the case

In an 8-1 decision, the U.S. Supreme Court reversed the Kentucky Supreme Court which had found the police had violated Mr. King’s Fourth Amendment rights. Under the “emergency exception” to those rights, police do not need to get a warrant to, for example, break into a person’s home where they reasonably believe they have to prevent serious or deadly harm. However, where the police create the “emergency situation” they cannot break in and must first get a warrant. The U.S. Supreme Court remanded the case back to the Kentucky Supreme Court for further proceedings.

What prevented the police to watch the premises while a warranted was obtained?

The high Court focused on what happened after the police entered the apartment building. They first assumed that an emergency situation existed. However, the majority found that on the evidence on the present record there was no evidence that the officers violated the Fourth Amendment or threatened to so before entering the apartment. The Justices sent the case back to the state supreme court to determine if there was any evidence of such intent on the part of the officers.

As Justice Ginsburg’s dissent points out, there is nothing in the current record that explains why it was impossible for the police to get warrant. Under the Amendment, that is the basic rule – get the warrant.

Certainly after the police entered the building and smelled the marijuana, there was “probable cause” to obtain a warrant. As she appropriately sets forth, at that point the police presence was not known and there was no reason to believe that Mr. King to suddenly start destroying his expensive drugs. What prevented the police to watch the premises while a warranted was obtained?

The Kentucky Supreme Court

This decision also fails to deal with the fact that police didn’t get there soon enough to intercept the suspect before he entered the apartment house.

  • Why couldn’t the original officer arrest the suspect? He was right there.
  • Why was this officer acting alone?
  • There were no other officers observing the drug deal?
  • Why was it impossible for the police to have additional officers (undercover or uniformed) already on the scene who could have arrested the suspect?
  • Why were the uniformed officers so far away that they had to first drive to the apartment building (it was not far from the “buy”)?

Should our Fourth Amendment rights depend on how fast the police can drive and run?

It will be interesting to see how the Kentucky Supreme Court handles this.

  • Will additional evidence be offered?
  • Will the Kentucky court focus on the points above?
  • Will it reverse itself?

Stay tuned.


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