In the area of search and seizure, the court, in Kentucky v. King, upheld the warrantless entry of a suspected drug dealer’s apartment, due to the “exigencies of the situation.”
In Lexington, KY, Undercover Officer Gibbons had set up a controlled buy in an area surrounding an apartment complex. After the deal was concluded, Gibbons, radioed uniformed officers to move in on the subject.
As the officers began their pursuit, the subject ran towards the breezeway of the complex and the officers lost sight of him. Then they heard a door slam. At the end of the hallway, the officers saw two doors. Not knowing which one the dealer entered, Officer Steven Cobb, who smelled the odor of burning marijuana coming from the door on the left, banged on the door “as loud as he could,” announcing “This is the Police.”
Cobb later testified that as he was banging, he “could hear people inside moving” and it “sounded as though things were being moved inside the apartment.”
These noises led Cobb, and his fellow officers, to believe that drug related evidence was about to be destroyed. Cobb then kicked in the door and observed three people, including the defendant Hollis King, smoking marijuana in the apartment.
During a protective sweep, the police saw additional marijuana and powder cocaine. A subsequent search (the opinion does not say, but once the emergency is over, a search warrant or consent would be required) disclosed crack cocaine, cash and drug paraphernalia.
This was a real bad day for King, as the original drug dealer being chased was later found in the other apartment.
The issue before the court was Officer Cobb’s initial entry into the apartment. If lawful, his observations were admissible, as was the protective sweep, and those observations. Then all he saw was later (I assume) put into a search warrant affidavit, and the final cache was found.
King had argued that the way in which the officers announced their presence and banged on his door, somehow violated the Fourth Amendment and led him to believe their entry was imminent.
“A forceful knock may be necessary to alert the occupants that someone is at the door,” responded the court. Furthermore, adopting the defendant’s position would make it “extremely difficult for police officers to know how loudly they may announce their presence or how forcefully they may knock on a door. If the police are not loud enough, the occupants may not know who is at their door.”
For many years, the U.S. Supreme Court has recognized various exceptions to the warrant requirement of the Fourth Amendment. The one most frequently used by street cops is the exigency. As the one dissenting justice noted, “Circumstances qualify as ‘exigent’ when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape.” That justice felt the facts did not rise to that level; the other eight disagreed.
The exigent circumstances rule was recently extended to domestic disputes, “where the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is reasonable under the Fourth Amendment.” Brigham City v. Stuart (2006). That case was reaffirmed in 2009 in Michigan v. Fisher, another dispute in a home, in which the entry, without warrant or consent, was found to be reasonable to prevent possible injury to the occupants.
Also, this year, the court ruled on two dog sniff cases from Florida.
In Florida v. Harris, the court unanimously overruled the Florida Supreme Court and found that a well trained dog, who alerted to drugs in a car, generated the probable cause necessary to search the vehicle for those drugs.
Balancing the dog’s hits and misses, as the Florida courts had ruled, is not required. If the dog alerts and no drugs are found, that may not be a mistake at all. The dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.
So long as there is a valid reason for stopping the car, having the dog walk around it (a free air sniff) is not a search.
Later that term, the court ruled on another dog sniff case, this one from Miami. Miami-Dade police, responding to a report of a grow house, brought their drug sniffing dog to the home in question and walked him on the porch to sniff at the front door. The dog alerted and the officers put that into a search warrant affidavit. The grow house got busted.
The case was argued on the same day as Harris, and many thought it would be decided as Harris was. The cops had not entered the house. They did no more than the FedEx man or a girl scout selling cookies would do.
Not so said the court in Florida v. Jardinas.
We regard the area “immediately surrounding and associated with the home” — what our cases call the curtilage — as “part of the home itself for Fourth Amendment purposes.”
So the dog and his handler entered the curtilage. But what about the girl scout, does she need a warrant?
The knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.”This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King, (2011).
But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.
The general public (as well as the police) has an implied permission to come up to the front door and knock. The homeowner then decides whether to open the door and talk to them, or accept the FedEx package or buy the cookies. But a dog sniffing the perimeter of the home, if a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.”
Relying upon last term’s GPS case, entering upon someone’s property, even the undercarriage of a car, or as here, the porch, requires government investigators to get a warrant, unless one of the exigencies applies. Where were the plants going?
David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida. His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed. It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall.