Wednesday, May 25, 2011

WARRANTLESS SEARCHES: THE U.S. SUPREME COURT MARIJUANA EVIDENCE CASE AND ILLINOIS LAW

You may have heard it on the news: U.S. Supreme Court rules that police can enter home because of marijuana smell. While this statement oversimplifies the court’s decision, Kentucky v King deals with the law of exigent circumstances, or when the police can enter your home without a warrant.

Under the Fourth Amendment, warrantless searches of a home are presumed unreasonable. Police may enter without a warrant, however, under exigent circumstances. In Illinois, these circumstances include: 1) recentness of the crime, 2) severity of the offense, particularly if it involved violence, 3) whether the suspect is armed, 4) likelihood of the suspect’s escape, 5) whether there was time to get a warrant, 6) a strong reason to believe the suspect is on the premises, and 7) hot pursuit of a fleeing suspect. Under federal case law, another exigent circumstance is the fear that evidence will be destroyed. This is the issue at the heart of Kentucky v King.

In Kentucky v King, undercover police set up a controlled buy of cocaine from a suspected drug dealer. After making the deal, officers moved in on the defendant who ran into an apartment off a breezeway. The officers followed and smelled marijuana burning from the apartment on the left. (The suspect was later found in the apartment on the right, but the Court does not address the issue of whether officers entered the wrong apartment.) Fearing evidence was being destroyed, the officers knocked on the door and announced they were police. The officers thought they heard people moving around, so they kicked in the door. Once inside, they spotted drugs in plain view and arrested the people in the apartment.

The issue before the Supreme Court was whether the officers created the exigent circumstance by knocking on the door and announcing their presence. Police cannot rely on exigent circumstances to avoid getting a warrant if they themselves create the circumstances. The Supreme Court held that knocking and saying “Police, police, police” was proper and does not create the exigency. Justice Ginsburg disagreed stating that the police had time to get a warrant and that police may now “knock, listen, then break down the door, never mind that they had ample time to obtain a warrant.”

Rightly or wrongly decided, the Supreme Court case will likely have little impact on Illinois law. Illinois courts already apply a multi-pronged test for exigent circumstances, and the outcome will vary with the facts of each case.

If you are the subject of a warrantless search or have been charged with a crime, contact Matt Keenan at 847-568-0160 or matt@mattkeenanlaw.com.. An experienced criminal law attorney can help evaluate your case to see if there are grounds to suppress the results of a police search.

For the complete Supreme Court case, see http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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