“Where’s your search warrant!”
Over the years I have heard some version of this statement countless times, usually in situations with the potential for violence. Since we live in a free country where a person’s “home is his castle,” I usually assume that the resident won’t be happy to see a uniformed police officer crossing his threshold without a warrant. But let’s face it, bad things can happen inside a home, which is why the 4th Amendment’s protection against unreasonable search and seizure is so often the topic of criminal case precedents such as the one described in a recent Washington Post article reprinted in The Trib.
The only problem is that the article is incorrect.
To recap the story, the U.S. Supreme Court recently recently ruled in a criminal case involving police officers who 1) smelled the obvious scent of marijuana from outside the door of a residence; 2) heard the unmistakeable sound of said drugs being destroyed; 3) entered the residence without a warrant. The Post reported that the court gave those actions the stamp of approval, but the story’s author went too far by suggesting that this ruling amounted to new and expanded authority for law enforcement.
This convoluted viewpoint could lead to the inaccurate assumption that cops can now routinely bust down doors without the trouble of a search warrant. Our free society has historically been, and should rightly continue to be, wary of any government action that resembles the virtual police state from which we emerged by declaring our independence from Great Britain.
In reality, the court’s ruling did nothing more than affirm exceptions to search warrants that are already part of federal law (if you’re familiar with the mechanics of a search warrant, I’ll suggest you skip the next paragraph).
A search warrant is a written affidavit describing the officer’s (referred to as the affiant) training and experience, his or her observations, a description of the alleged criminal activity, and the scope of the search warrant requested. Typically this document is reviewed by a prosecutor, but ultimately it must be laid before a judge or magistrate for approval. It can be a time-consuming and difficult process, but in my experience it is exceedingly rare that a search warrant is denied.
There are exceptions to the requirement for search warrants, which you can peruse in this link to Wikipedia if you have trouble sleeping. The primary focus of this “precedent” is the “exigent circumstance” exception arising from the destruction of evidence of a crime. If you’ve ever watched the TV show “Cops” then you’ve probably viewed the trailer where officers yell “Police-Search Warrant!” at the same time the battering ram hits the door. Narcotics warrants are typically an automatic exigent circumstance because of the ever-present sound of a toilet flushing down the dope.
Warrantless search exceptions follow the same principle. Imagine that you are a police officer arriving at an apartment unit to take a theft complaint. Just before knocking you smell the unmistakeable odor of a methamphetamine lab (a cross between cats and urine–go figure) from the unit next door. You step towards this door as a subject opens it, sees you, and darts back inside. You hear the sound of a sink running, glass breaking and items being tossed out a window. Based on your training and experience you’ve developed probable cause for a search warrant, but it’s also clear that the meth cook is now tossing the dope and destroying the lab equipment in an attempt to avoid arrest. Can you run in, confirm your suspicions and make an arrest?
The answer, both before and after this court ruling, is yes. Here’s a follow up question–should you go into this particular apartment?
That answer is no, unless you like explosions and exposure to extremely toxic chemicals. But that’s a discussion for another day.