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Supreme Court Approves “Police-created” Exigencies
In May 2011, the Supreme Court finally answered a question that has troubled lower courts for years: May police enter a house without a search warrant under the exigent circumstances exception to the warrant requirement when police decisions and conduct create the exigent circumstances?
Historically, most lower appeals courts had said “NO,” and developed variations of a so-called “police-created exigency” doctrine. In Kentucky v. King, the Supreme Court addressed the question and answered “YES,” a police-created exigency may justify warrantless entry, as long as the police conduct prior to the entry was not itself unconstitutional.
The Facts That Were NOT
Picture this. Offi cers have abundant probable cause to suspect that illegal drugs are within a particular residence which they know to be occupied. There are no exigent circumstances. Rather than bother to apply for a search warrant, the offi cers decide to do a “knock and talk,” strategizing that at the door, in all likelihood, one of two things will happen—they’ll either get consent or exigent circumstances will arise. Either way, they’ll get in without going to the trouble of getting a warrant. Perfect.
This is the “danger” that caused so many lower appeals courts to decide that “offi cer-created” exigencies are invalid because they would allow police to routinely avoid the warrant requirement, at least in drug cases. In fact, in King, the lone dissenting opinion, authored by Justice Ginsburg, begins with these words, “The Court today arms the police with a way routinely to dishonor the Fourth Amendment warrant requirement in drug cases.”
But in this 8-1 decision her voice stands alone. The majority is apparently okay with the above facts, even if the police strategy is centered on simply avoiding the work of getting a warrant. In fact, the majority opinion mentions there is a list of legitimate reasons where police might want to knock rather than to apply for a warrant because there is nothing illegal about knocking on a door—after all, anyone can do it—any resulting effort to destroy evidence is the suspect’s call and his problem, legally.
They also powerfully remind of a long established principle in Fourth Amendment jurisprudence: “objective reasonableness.” The particular offi cer’s subjective motivations or intentions are not the issue. An objectively lawful action is lawful, period, irrespective of a particular offi cer’s state of mind or thinking.
The facts of Kentucky v. King
The facts of the actual case were a bit more compelling than those in the above hypothetical. Police offi cers witnessed a person make a controlled purchase of crack cocaine. Immediately afterward, uniformed officers pursued the suspect into an apartment breezeway, but briefl y lost sight of him and were unsure which of two apartments the suspect entered. The officers smelled a strong odor of marijuana smoke coming from one of the apartments so they chose that one, knocking loudly on that door and announcing themselves as “police.”
At that point they heard movement inside that suggested to them that the occupants were start ing to destroy evidence. The police then announced that they were coming in and kicked in the door. A sweep of the premises for the suspect was fruitless, but criminal charges against the occupants were brought based on drugs found in plain view and additional drugs, cash and paraphernalia found in a subsequent warranted search. The original suspect was in the other apartment where he was subsequently apprehended. Kentucky v. King is about the entry into the first apartment.
The rule is that a warrant is required to enter and search private premises. Exceptions to this rule include “exigent circumstances,” which permit police to enter a residence without a warrant in emergency situations that urgently require police action, such as the need to render emergency aid or to prevent the destruction of evidence. The lower court-created “police-created exigency” doctrine prohibited police from claiming the exigent circumstances exception to justify a warrantless entry where police choices and conduct created the exigency.
In this case, after considering the various forms of the “police-created exigency” doctrine applied in lower courts, the Supreme Court decided that the police did not do anything wrong by knocking on the door and announcing their presence, and that their forced entry to prevent the destruction of drugrelated evidence was a valid application of the exigent circumstance exception to the search warrant requirement.
The Court noted that police are not required to seek a warrant as soon as they meet the minimum standard and listed several legitimate strategic reasons that the police might choose another route, including, “Police may want to ask an occupant for consent to search because doing so is simpler, faster and less burdensome than applying for a warrant.”
This case does not decide that the noises police heard after knocking and announcing their presence were suffi cient to establish that evidence was being destroyed. The Supreme Court sent that question back to the lower courts for a decision. In this case, the Court “assumed” that the exigent need to prevent destruction of evidence existed.
So, the only question that the Supreme Court actually answered was whether police impermissibly created the exigent circumstance by knocking and announcing their presence instead of seeking a warrant. What type of noise does or does not create probable cause to believe evidence is being destroyed was not decided and no doubt will be the subject of many future lower court arguments.
The Court’s final answer regarding “police-created” exigencies is this: police may not benefit from unconstitutional conduct but it is not unconstitutional to knock on a door, even if the subjective motivation is to avoid the warrant requirement. People who move to destroy evidence upon the announcement that police are at the door have only themselves to blame, according to the Court.
In one sense, it is always the police who incite the urge to destroy evidence; it is fear of discovery by the police that provokes people who have illegal drugs to destroy them. The Court said, “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”
Though not mentioned in Kentucky v. King and not part of the fact picture there, appeals courts, including the Supreme Court, have noted in the past that minor, non-dangerous matters are unlikely to furnish exigent circumstances. They are not the stuff of which “emergencies” are made. So, for example, to enter private premises without a warrant or consent to prevent the destruction of a misdemeanor quantity of marijuana might violate the Fourth Amendment even if there were ample reason to believe it was about to be destroyed.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at firstname.lastname@example.org.
In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at email@example.com.
Published in Law and Order, Jul 2011
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