New Tool By Law Enforcement to Avoid Obtaining a Search Warrant and Abrogate the Fourth Amendment in Searching a Home.

On May 16, 2011, the United Supreme Court held in Kentucky v. King, that police officers arriving at a home, and suspecting that evidence is being destroyed can bust down the door and proceed to search the house if they believe that evidence is being destroyed. This rule only applies if the police first knock and announce their presence and did not create the exigent circumstances.

In the Kentucky v. King case police officers in Lexington, Kentucky, suspecting what they believed to be a hand to hand drug transaction in a parking lot, rushed into an apartment complex to arrest the suspect. However, while in the apartment they smelled the odor of burnt marijuana coming from one of the apartments. Suspecting that evidence was being destroyed, they knocked down the door and searched the apartment finding cocaine and marijuana. It was later learned that the apartment which they entered was the wrong apartment.

The lower court suppressed the evidence citing the Fourth Amendment and search warrant requirement to enter a home in the absence of exigent circumstances.

As Justice Samuel A. Alito, Jr., writing the majority opinion wrote. “... the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted.”

Justice Alito also wrote that if the defendant Hollis D. King had opened the door and refused admittance to the officers the officers would have needed a search warrant, because at the stage he was not destroying evidence. However, defendant King decided to ignore the knocks by the officers and engaged in destruction of evidence. Thus the Court in essence affirmed New Jersey case law which holds that police officers cannot enter a home under the basis of the “plain smell” rule without a search warrant.

It is unlikely that this decision will have much effect in New Jersey in State criminal prosecutions because our New Jersey Supreme Court has continually ruled that the application of the Fourth Amendment in home searches is more protective than federal law.

A motion to suppress is a key tool by every defendant charged with processing contraband in any criminal case. If you are charged with such a crime and for more information regarding your rights you are urged to seek the legal advise of an experienced New Jersey criminal defense lawyer, Vincent J. Sanzone, Jr., an attorney who has represented and been successfully in suppressing evidence seized by police without a search warrant for many of his clients.

Law Office of Vincent J. Sanzone, Jr.
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P.O. Box 261, 277 North Broad Street, Elizabeth, N.J.
(908) 354-7006
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