Home / General / The War on Drugs v. the Constitution

The War on Drugs v. the Constitution


Under the Fourth Amendment, searches of a person’s home are presumed to require a valid warrant unless there are “exigent circumstances.” The Supreme Court has also, logically enough, held that these exigent circumstances generally cannot be created by the police’s own behavior. The War (On Some Classes of People Who Use Some) Drugs, however, is where the Bill of Rights goes to die. So, yesterday, the Supreme Court upheld a warrantless search of a home in which the police had time to obtain a warrant, but created their own “exigent circumstances” by following a suspect into his apartment complex and smelling marijuana. Nor surprisingly, the opinion overruling those Trotskyites at the the Supreme Court of Kentucky was written by “Strip Seach” Sam Alito. Dismayingly, and demonstrating again that the Supreme Court essentially lacks a real liberal wing, the decision was 8-1, with both of Obama’s appointees in the majority. Ruth Bader Ginsburg, adding to the case that she should stay on as long as she damned well pleases, dissented:

The question presented: May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.


That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Ante , at 8. Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.


How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?

The key problem with the case, as Ginsburg convincingly argues, is that it’s the latest example of the drift of the exigency exception away from actual emergencies and toward the mere convenience of the police. If the police have time to obtain a warrant and there isn’t an actual emergency, they should be required to obtain one. But when security in the home faces the War (On Some Classes of People Who Use Some) Drugs, it generally loses.

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  • MPAVictoria

    Insane, but then I oppose random traffic stops and being forced to show a government issued ID to fly so what does a dirty hippy like me know about anything.

    • Tom West

      By “government issued ID”, do you mean your driver’s license?

      • Not everybody has a driver’s licence, sometimes that is even a choice.

  • DrDick

    Come on, Scott. This is perfectly compatible with the prevailing legal theories of “small government” Republicans. Anything that the police and prosecutors want, as long as it primarily impacts the poor and minorities, is perfectly legal.

    • ronald stepp

      That excuses it?

      • DrDick

        Not even close. Just saying that this result is completely predictable given the rightwing activist composition of the court.

        • Incontinentia Buttocks

          And the center-right quality of much of the Court’s “left.”

          Wanna know why there was so much bellyaching about the Kagan pick around here? Look at this decision.

          • jeer9

            Geez, and I thought we were supposed to be thankful for the Sotomayor and Kagan selections, that their nominations justified support of Obama and the prioritization of the SC in voting strategy. Now if it had been a 6 – 3 loss, I would have felt much better. Still, I remain confident that in the future on really important issues they’ll side with the more hard-line civil liberties advocates.

            • Emily

              Stevens and Souter were two of the best Justices wrt rights of criminal defendants. They were a huge loss on these types of issues.

      • Seth

        @ronald – DrDick is clearly being sarcastic. This is obviously the opposite of “small government”. It highlights the hypocrisy of people who call themselves “small government” as long as it doesn’t impact them.

  • Joe

    The details only worsen the situation. They weren’t there to get this guy. They were concerned with someone else. This has a “well, we need to get something for our time” taint to it. And, listening to the NPR summary, you see the person got a long prison sentence. It wasn’t really about some small amount of pot that would be gone but a large amount of cocaine found once they entered.

    It should be noted that places like Kentucky do at times have libertarian rulings. As Stevens might say, back in the day the SC wouldn’t even take a case where someone won below like this.

    • L.M.

      Indeed, the whole point of this ruling is that now police officers can take any door they damn well please, for any reason. If they find drugs, they’ll have no trouble justifying the search ex post. If they don’t find drugs, who cares? There’s no remedy for an illegal search, if there’s nothing to exclude

      The point of the warrant requirement has never, in recent constitutional history, been to prevent the police from conducting a search. Requests for search warrants are basically never denied. The point of a search warrant is to force the police to commit themselves, in writing, to a particular set of facts ex ante. Now, the destruction-of-evidence exception is so broad that any “successful” search will justify itself.

  • rea

    The Alito opinion is so narrowly written that an argument that the police can’t create their own exigent circumstances is still viable under some circumstances.

    The pernicious cases I see as a criiminal defense attorney tend to be a product of three factors: (1) Knock and Talk–a police strategy where they have a suspect, they don’t have enough for a warrant, and so they go knock on his door for a little talk, hoping to get a break that will allow entry and search, (2) The Smell Test–officers can get probable cause simply by claiming to smell marijuana, even though we have to take the officers’ word for it that it really happened, and (3)Automatic Credibility–it is very rare for officers’ accounts, no matter how convenient and improbable, to be disbelieved.

    The Kentucky case was a problem for the prosecution only because the officers were foolish enough to have claimed to smell marijuana before knocking on the door of the apartment–if they didn’t smell it until the door was opened, there would be no issue about creating their own exigent circumstances.

  • c u n d gulag

    I finally figured out what ‘trickled down’ to us in the last 40 years:

    “Creeping Nixonianism” – remember, ‘if the President does it, it can’t be illegal?’

    And now, it’s the police – ‘if the police do it, it can’t be illegal.’

    I would get the Hell out of this country in a NY City nanosecond if I could.

    Anyone know anyone overseas who would want an over-50 unemployed handicapped Liberal?
    I speak fluent Russian, but my German’s really rusty.

  • Brad P.


    These rulings are so difficult to understand considering the horrifying results of SWAT led drug raids. What happened to Sotomayor’s famous sympathy and efforts to understand the experiences of others. (That’s genuine disappointment)

    • Harold Q

      It’s disappointing, but not entirely unexpected given Obama’s 180-degree turn from his campaign mentality and promises. He appointed someone who shares his vision of a jackboot on the face of America, just like his corporate sponsors told him to.

      • Brad P.


  • The failure of the court to check the martial power of government agencies is bad enough, almost ancillary is how this ruling makes citizens profoundly less safe from run-of-the mill crimes.

    Think on it, we’re no longer allowed to deny police entry to our homes. Most people don’t deal enough with police on a day to day basis to be able to pick out the details of uniforms, insignia or to know the procedures by which police are expected to conduct themselves.

    What, then, is to stop any common criminal from purchasing a police uniform from an Army/Navy store or a costume supplier and demand to be let into homes at random? The only thing that lets us, as citizens, recognize a police officer is their uniform and those uniforms aren’t all that hard to get.

    • Brad P.

      Jennifer Government fan?

      • Bill Murray

        I enjoyed the book, but thought the online game a little weak

        • Anonymous

          I thought the book was decent. As for the game, could never really get into even though I was a regular “Generalite” for about six years.

          • Brad P.

            Above was me.

  • rea

    Think on it, we’re no longer allowed to deny police entry to our homes.

    no, that’s not true.

    • Hogan

      It is true, but only in Indiana. So far.

      • Bill Murray

        Isn’t it you’re not allowed to resist with force when someone claiming to be law enforcement invades your house. This seems like a good way to shake down people

    • AJ

      It’s absolutely true when they show up in SWAT gear and kick in your door in the middle of the night.

  • John

    What the heck does class/race have to do with this?

    • Holden Pattern

      This is a good question. After all, there’s no history of “enhanced” police enforcement activities directed at poor or non-white people in the United States.

    • Brad P.

      You have apparently never looked in any real detail into the disproportionate effects of the drug war.

    • DrDick

      When have the police ever engaged in such actions against rich white people?

      • BKP

        Marc Emery?

        • DrDick

          OK, but as a cannabis activist, he qualifies as an honorary person of color.

            • DrDick

              It is the bong that gives you that dusky hue. Cops really do not care about your political philosophy in these situations.

      • Rob

        Hey most people found with a huge amount of cocaine on them get to leave town like Paris Hilton did in Vegas.

  • soullite

    And all the politicians you support will support this fully, or at the very most, do nothing at all to stop it. That will in no way impact your support of them, which obviously calls into question how strongly you actually believe in the things you claim to believe in.

    In short: Nothing but words, just like your Leader.

    • BKP

      Is there a political party or group that you support?

      • DrDick

        There is nothing that the soulless one supports other than its own ego.

        • BKP

          I was wondering if he was looney like me, or just looney.

          Seems he is.

          • DrDick

            We sort of like you , in part, because you actually believe in something. While we regard that belief as delusional at best, we respect that you believe it.

            • Holden Pattern

              It’s actually kind of sweetly dystopian.

              • hv

                He hearkens back to a golden age of dystopias, not relying on the crutch of modern technology or post-modern ambiguity to poison society, but instead on the maximization of one philosophical concept until it destroys the ability to have a state.

                A very Enlightenment era, absolutist dystopia.

      • Hogan

        Ever since the ACA passed, soullite has been locked in his bedroom listening to “I Will Survive” over and over.

    • Oh, yeah, remember when Nader threw the election to Bush in 2000, what a civil liberties paradise that ushered in! Why don’t we try that again.

      • jeer9

        What happened to “better ballot design or a decent elections statute in Florida?” Somehow real disappointment seems to bring out the Nader hatred. At least I’m more sensible than those DFHs.

      • astonishingly dumb hv

        Yeah, Gore himself made no relevant decisions in 2000, and is blameless.

        (this comment had a post-script, trapped in moderation for the nonce)

      • astonishingly dumb hv

        (Ok, I’ve given up waiting on moderation, let’s try the postscript on a different day…)

        PS: Mr. Lemieux, can’t help but wonder if your blaming narrative has had the “astonishingly dumb” Tennessee hole patched yet… I missed your easy dismissal of my embarrassing defense of such silliness. C’mon, help me out, let me know what metric I should be using to measure how successful Gore’s rightward drift was besides the low-hanging fruit of his home state.

      • astonishingly dumb hv

        (Ok, I’ve given up waiting on moderation, let’s try the postscript without the link.)

        PS: Mr. Lemieux, can’t help but wonder if your blaming narrative has had the “astonishingly dumb” Tennessee hole patched yet… I missed your easy dismissal of my embarrassing defense* of such silliness. C’mon, help me out, let me know what metric I should be using to measure how successful Gore’s rightward drift was besides the low-hanging fruit of his home state.

        * no link possible; thread was “Awful” on 4/12/11

    • Rarely Posts

      Clinton appointed Ginsburg, who dissented today.

      And, even if one disagrees with the votes by Sotomayor and Kagan today, Sotomayor’s dissent in Berghuis v. Thompkins reveals that she is preferable to the Republican appointees on the Court.

      These two appointments are actually two good examples of liberals accepting less than they hoped for but far more than the Republicans will offer. Today is an example of less than a liberal might hope for. Other cases, such as Thompkins, are far more than the Republicans will offer.

      • Holden Pattern

        Don’t let the good be the enemy of the lesser evil!

        • Rarely Posts

          I’m simply making the point that this statement isn’t true:
          “That will in no way impact your support of them, which obviously calls into question how strongly you actually believe in the things you claim to believe in.”
          The votes today do decrease the strength of my support for the President, but my level of support is defined by looking at the whole picture. An appointment rarely can be assessed based on a single vote by that appointee, and a Presidency can rarely be judged by a single appointment.

          • Holden Pattern

            I, for one, am psyched to get a shit sandwich that has some bread in it, however thin the slices are.

      • SP

        The rule seems to be: If you really were caught with something illegal but procedures weren’t followed, you’ll lose 8-1- the center-right “liberal” wing doesn’t believe in letting people off on technicalities like the bill of rights. If, on the other hand, you have actual evidence of your innocence… you’ll only lose 5-4 because your appeal didn’t follow some legal detail, but congratulations, the liberal wing supports your cause!

        • jeer9

          Why does cynicism have to be so funny?

          • Rarely Posts

            Because it’s true?

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  • Clep


    War (On Some Classes of People Who Use Some) Drugs

    …would be more correct, and make a lot more sense, as:

    War On (Some Classes of People Who Use Some) Drugs

  • Dear Friends,
    An acquaintance was recently arrested for marijuana possession of more than a half ounce, a felony in that jurisdiction.
    It brought to mind that the constitutionality of the prohibition of marijuana has probably not been seriously challenged in many years.
    I wondered this morning if there has been any kind of comprehensive review of the constitutionality of the cannabis laws since Lawrence v. Texas.
    What do you think of the following questions? What I would like to see is a kind of spread sheet in which these questions are answered with cells identifying the cases, attorneys, opinion, states, judges, theories, professors, etc. that represent the entire range of answers.
    Who, in the last forty years, has carried out a systematic review of challenges to the constitutionality of the criminal punishment of adults who use and possess cannabis?
    What attorneys have experience challenging the constitutionality of various criminal laws, vice laws, and cannabis laws especially?
    What attorneys have succeeded in these challenges, in what courts, with what theories, and when, besides Ravin in Alaska in 1976?
    Who has compiled a complete list of what courts have ruled on the constitutionality of the marijuana laws since 1970?
    What constitutional doctrines have been relied upon to uphold the constitutionality of the marijuana laws? Since those rulings, how have those doctrines evolved?
    What doctrines or theories have never been raised or only raised in a few courts that could be used to challenge the constitutionality of marijuana prohibition?
    In what states has the highest court never ruled on the constitutionality of the marijuana laws? Might such states be appropriate for raising such a challenge now as a new question?
    Under what doctrines is the harmfulness of marijuana an essential factor in sustaining the prohibition?
    Under what doctrines would a comparison of the harms of cannabis with other conduct/circumstances/substances be relevant or determinative?
    What dissenting opinions have been written in the cases upholding the constitutionality of the marijuana laws? What were those theories? Who are those judges? Are any of those courts jurisdictions that might be appropriate for raising this question again?
    What law review articles have been written challenging or reviewing the challenges to the constitutionality of marijuana laws or similar laws?
    Who are all of the law professors who might contribute to developing or who might sign a brief arguing that the marijuana laws are unconstitutional?
    What would be necessary to bring cases in various states and various federal districts that could seriously challenge the constitutionality of the punishment of adults for possessing and using marijuana?
    There are tens of thousands of lawyers who have become experienced practitioners and legal theorists who have never had the opportunity to participate in challenging one of the great legal absurdities of our era. How can we identify and assist those who might welcome this challenge?

    • Rarely Posts

      You might want to start by reading Gonzales v. Raich.

      • Thanks.
        Raich permits regulation of purely intrastate activity if Congress has the power to regulate interstate and foreign activity.

        The question I want to raise, Can the Congress (and the States) take away a citizen’s liberty because he or she has possessed or used marijuana if marijuana use is less harmful than use of alcohol and tobacco?

        A feature of Raich is that the U.S. is party to international conventions that require regulation of cannabis. Does that power to regulate sustain imprisonment for use and possession of marijuana?

        • Joe

          Things less harmful than alcohol and tobacco can be banned. Sound theory can be expressed about how use of drugs should be a component of the right to privacy. It is not current law.

          Treaty requirements factor in to regulation but if the matter is a liberty protected by the Constitution (such as free speech), it can’t by itself override the liberty. Treaties can on their own provide grounds for government regulation all the same if such a liberty interest doesn’t exist.

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  • Tracy Lightcap

    The real question here is just how soon this ruling will start getting people on both sides of the door killed.

    I live in Atlanta. Just about four years ago the cops here broke down the door and windows of an elderly black lady, Kathryn Johnson. They had the wrong address, but announced themselves as they were breaking the door down. She opened fire and was killed. Several of the officers were wounded by “friendly fire”. Real Soon Now there’ll be a shootout where both a good number of cops (and innocents, of course) are killed after “smelling marijuana” or something like that and breaking down a door. And I can guarantee you it’ll be down here. Most people who tote a firearms in Georgia aren’t 92 year old women, but they are just about as willing to open up on home invaders.

    Oh, btw, the cops planted dope in Ms. Johnson’s house and swore up and down that they had brought cocaine there. Three of them are now serving time for manslaughter. All because of a long series of decisions (starting with Terry) that don’t pay any real attention to the actual threats to the lives of police officers and create incentives for acting like the people they are trying to catch.

  • Rick

    The War (On Some Classes of People Who Use Some) Drugs

    If we take out the parenthesis, this doesn’t make sense: “The War Drugs”. You need to move the opening parenthesis to the right.

  • Brett Turner

    Professor Orin Kerr argues that this and similar posts misread the case:


    The Court did *not* uphold the search. It merely adopted a test for police-created exigent circumstances. The Court did not consider whether the totality of the circumstances (including those created by the police without violating or threatening to violate the Fourth Amendment) supported a finding of exigent circumstances. In fact, when counsel for Kentucky tried to address that question at oral argument, the court stopped her and said that wasn’t the issue.

    It is still very possible that the Kentucky courts will find the search to be unconstitutional on remand.

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