Oral argument: Jan. 12, 2011
Appealed from: Supreme Court of Kentucky (Jan. 21, 2010)
EXIGENT CIRCUMSTANCES, SEARCH AND SEIZURE, PROBABLE CAUSE, FOURTH AMENDMENT
While pursuing a known drug felon, police officers smelled burning marijuana emanating from behind a closed apartment door. After knocking and announcing themselves, the police heard shuffling within the apartment. Believing that valuable evidence was being destroyed inside, they entered the apartment, found a variety of drugs and drug paraphernalia and arrested Respondent Hollis Deshaun King. King claims that this entry and search violated his Fourth Amendment rights because there was no exigent circumstance which permitted the officers to enter his apartment without a warrant. The Commonwealth of Kentucky asserts that the smell of burning marijuana, in addition to the sounds of shuffling and movement within the apartment, validated the police's warrantless entry. To decide this case, the Supreme Court will have to weigh privacy interests against the need for police officers to safely and effectively perform their duties.
When does lawful police action impermissibly "create" exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist?
In emergency circumstances, police may enter and search a private residence without a warrant. Does this exception apply when police create the emergency circumstances through their own lawful action, such as knocking on a door?
In October 2005, the police of Lexington-Fayette Urban County, Kentucky performed a “buy bust” operation in which a confidential informant attempted to buy crack cocaine from a suspected drug dealer. See King v. Kentucky, 302 S.W.3d 649, 651 (Ky. 2010). Once the undercover officer, Officer Gibbons, signaled that the transaction was complete, the police approached the scene in their marked police vehicles. See id. As they neared the scene, Gibbons “radioed a description of the suspect, and stated that he had entered a specific breezeway at the apartment complex.” See id. Gibbons’ final radio transmission that the suspect entered the back right door of the breezeway went unheard by the other officers as they were already in pursuit on foot. See id. As the officers reached the breezeway, an unseen door slammed and the officers smelled marijuana emanating from the back left door of the breezeway. See id. The officers knocked on the left door believing that the strength of the smell indicated that the door had been recently opened. See id. at 651–52. After announcing “police,” the officers heard sounds of movement inside the apartment, which caused the officers to suspect the destruction of evidence. See id. The police forced entry into the apartment, but did not find the original suspect. See id. at 652. The officers did find Hollis Deshaun King and several others inside with various drugs and drug paraphernalia. See id. The original suspect was found in the back right apartment of the breezeway. See id.
At trial, King argued the officer’s entry was illegal and moved to suppress all evidence recovered from the apartment. See King, 302 S.W.3d at 652. The Fayette County Circuit Court held a suppression hearing and determined that the warrantless entry was justified by the exigent circumstances—the odor of marijuana, the failure to respond to the officers’ knock, and the movement inside the apartment. See id. Pursuant to this finding, the Fayette County Circuit Court denied King’s motion to suppress. See id. King reserved his right to appeal the suppression ruling and entered a conditional guilty plea. See id. The Fayette County Circuit Court convicted King of trafficking, possession, and being a second-degree persistent felony offender. See id.
The Kentucky Court of Appeals affirmed the circuit court’s holding. See King, 302 S.W.3d at 652. The Court of Appeals noted that—standing alone—the smell, the failure to respond at the door, and the movement were not enough to justify a warrantless entry. See id. However, because the officers did not create these exigent circumstances, the search was still valid. See id.
Upon request by the Commonwealth of Kentucky, the Kentucky Supreme Court granted discretionary review. See King, 302 S.W.3d at 652. The Kentucky Supreme Court applied a two-prong test that asked whether the officers deliberately created the exigent circumstances and, absent that bad faith conduct, whether it was reasonably foreseeable that the police conduct would create the exigent circumstances. See id. at 656. Reversing the lower court, the Kentucky Supreme Court held that the police created any existing exigency and therefore the exigent circumstances could not support a warrantless entry. See id. at 657. In its opinion, the Kentucky Supreme Court also discussed the current circuit split on which standard to apply when deciding if police have created their own exigency. See id. at 655–57. The Supreme Court granted certiorari to determine when lawful police action will improperly create exigent circumstances and thus preclude a warrantless search. See Question Presented.
The Fourth Amendment provides that police officers may engage in a warrantless search if there is both probable cause and exigent circumstances that require immediate action. See King v. Kentucky, 302 S.W.3d 649, 653 (Ky. 2010). The parties in this case disagree as to when police improperly create the exigent circumstances. Amici curiae for the Commonwealth of Kentucky argue that imposing a foreseeability test to determine whether the officers themselves created the exigent circumstances is unnecessary to protect privacy rights and will be detrimental to field work. See Brief of Amicus Curiae the United States of America in Support of Petitioner at 7–8. In response, Respondent Hollis Deshaun King contends that merely imposing a lawfulness standard on police conduct may violate privacy rights and lead to pretextual searches. See Brief of Respondent in Opposition to Petition for a Writ of Certiorari at 10, 13.
The United States, in support of Kentucky, argues that requiring exigent circumstances to arise from lawful police conduct will strike the best balance between privacy interests and successful police investigations. See Brief of United States at 20. Police officers, under any test, need probable cause to lawfully enter any premises; therefore, because probable cause protects privacy interests, it is unnecessary to further consider whether police actions would foreseeably create exigent circumstances. See id. at 25. Furthermore, several states contend that the Fourth Amendment does not protect the destruction of evidence in one’s home, regardless of whether those actions were foreseeable or unforeseeable to police officers. See Brief of Amici Curiae the States of Indiana, Alabama, et al. in Support of Petitioner at 16.
In contrast, King asserts that privacy interests require a less permissive definition of exigent circumstances. See Brief of Respondent, Hollis Deshaun King at 26. King argues that the protections of the Fourth Amendment’s Warrants Clause would become meaningless if the smell of burning drugs and movement were enough to allow a warrantless entry. See Brief of Respondent in Opposition to Petition for a Writ of Certiorari at 10. Without some further consideration, such as a foreseeable likelihood of evidence destruction, officers will be able to justify warrantless entries by simply arguing that they smelled narcotics. See id. King contends that this will lead to abuse of the Fourth Amendment and pretextual searches. See id. Further, King argues, the “categorical unlawfulness” test ignores the case-by-case balancing of individual privacy and government interests required by the Fourth Amendment. See Brief of Respondent at 27.
Application in the Field
According to the United States, a test based on foreseeability, unlike a test focusing on conduct, is difficult to understand and apply in real-world situations. See Brief of United States at 21. The United States contends that police will have to pause in the field and consider if a reviewing court will find it was “foreseeable” that the police created the exigent circumstances. See id. at 22–24. Additionally, as stated by several law enforcement groups, this uncertainty in the field can lead to injuries and deaths. See Brief of Amici Curiae Americans for Effective Law Enforcement, Inc., et al. in Support of Petitioners at 12. Several states argue that a foreseeability test will also be problematic in court, as jurors will be required to engage in a “retrospective subjective inquiry into the knowledge and beliefs of police officers.” See Brief of the States of Indiana, Alabama, et al. at 13–14.
King counters that, without a foreseeability requirement, police can easily create exigent circumstances in order to conduct pretextual searches. See Brief of Respondent in Opposition to Petition for a Writ of Certiorari at 10, 13. As illustrated by professor Sherry F. Colb, anytime a police officer smells drugs and subsequently knocks at the door, there will inevitably be “moving around” and, in this way, officers are creating their own fear that evidence is being destroyed. See Sherry F. Colb, The U.S. Supreme Court Considers Whether Police Can “Make Their Own Exigency” in the Fourth Amendment Context (Dec. 8, 2010). Additionally, King contends that a mere lawfulness test will not require officers to tailor their actions to the situation, thereby allowing police to forcibly enter a dwelling without any suspicion of danger to “life or security.” See Brief of Respondent at 28.
Under the Fourth Amendment, police may conduct a warrantless search of a private residence if probable cause and exigent circumstances exist. See King v. Kentucky, 302 S.W.3d 649, 653 (Ky. 2010). Here, the Kentucky Supreme Court found that the police had sufficient probable cause to search King’s apartment. See id. at 653. The parties do not dispute the existence of probable cause. See id.; Brief for Petitioner, Commonwealth of Kentucky at 23; Brief for Respondent, Hollis Deshaun King at 17, 26. Accordingly, this case turns on the existence of exigent circumstances and what police action impermissibly creates such circumstances.
Did Exigent Circumstances Exist at the Time of King’s Arrest?
Kentucky argues that one of the most well-established exigent circumstances permitting warrantless entry into a private residence is when police reasonably believe that evidence is being destroyed. See Brief for Petitioner at 9–10, 16. Kentucky argues that Supreme Court precedent declared that sometimes the circumstances make the needs of law enforcement “so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” See id. at 9 (quoting Mincey v. Arizona, 437 U.S. 385, 393–94 (1978)). Kentucky argues that it is reasonable in such a situation to rely on the “training and experience” of police officers to determine if the destruction of evidence is occurring behind closed doors and, if so, to permit them to proceed without a warrant. See id. at 3, 34.
Respondent King disagrees that exigent circumstances existed when the police entered his apartment. See Brief for Respondent at 14, 18. Accordingly, King argues that the police officers’ “warrantless search King’s apartment was unlawful.” See id. at 21. King argues that Supreme Court precedent makes clear that that the smell of burnt drugs coupled with the sound of people moving around inside a private residence cannot support a destruction-of-evidence inference sufficient to justify warrantless entry and search. See id. at 13–16; Johnson v. United States, 333 U.S. 10, 12 (1948). King asserts that it is unreasonable to assume that every drug case presents the risk of evidence destruction. See Brief for Respondent at 15–16. Moreover, King argues that if mere movement (even if coupled with the smell of burning drugs) is enough to permit warrantless entry, then the Warrants Clause of the Fourth Amendment provides no protection. See id. at 15.
Did the Police Impermissibly Create Exigent Circumstances?
Kentucky argues that because an exigent circumstance existed inside King’s apartment, the fact that the police knocked and announced themselves before hearing the movement inside the apartment is irrelevant under Fourth Amendment analysis. See Brief for Petitioner at 10. Particularly, Kentucky argues that because the “knock and announce” procedure is both lawful and objectively reasonable, it cannot be impermissible. See id. at 10, 16–18, 34–36. Moreover, it argues that the police did not violate the Fourth Amendment even if their “knock and announce” did prompt a suspect to respond by illegally destroying evidence. See id. at 20. This standard should hold, Kentucky asserts, even if the police could foresee that their knock or announcement would result in illegal behavior. See id. at 20–22. It also contends that the standard should hold even if the police have probable cause to obtain a warrant, since initiating a “consensual encounter” by a “knock and announce” is preferable to a forced search. See id. at 23–24.
King contends that the police impermissibly create exigent circumstances when they “engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.” See Brief for Respondent at 23–24. Permitting the officers to “rely on the fruits of coercive conduct” is unreasonable because a “knock and announce” that results in sounds of movement inside a private residence is insufficient to infer that evidence is being destroyed. See id. at 15, 23–24. King argues that the Supreme Court’s jurisprudence presumes resulting movement—at the very least, walking to the door—as persons collect and prepare themselves before opening the door. See id. at 15; Richards v. Wisconsin, 520 U.S. 385, 393 (1997). Permitting police to enter and search a private residence because they hear movement would, King asserts, strip the Fourth Amendment of its protection in both drug and nondrug cases. See Brief for Respondent at 18–20.
Is a Uniform National Standard Needed to Define Impermissible Exigent Circumstances?
Kentucky explains that the federal Courts of Appeal and the states have differing tests to determine when police impermissibly create exigent circumstances to justify warrantless entry into a private residence. See Brief for Petitioner at 7; King, 302 S.W.3d at 655–56. It argues that only one test is proper for analyzing police actions under the Fourth Amendment and to resolve the current circuit split—the objective test developed by the Second Circuit Court of Appeals. See id. at 32–33. Under this test, if police acted in a lawful manner, such as by knocking and announcing themselves, they do not impermissibly create exigent circumstances. See id. at 32–33; United States v. MacDonald, 916 F.2d 766, 772 (2d Cir. 1999) (en banc). Kentucky argues that this test best comports with the Supreme Court’s assertion that the “touchstone” of the Fourth Amendment is objective reasonableness. See Brief for Petitioner at 11, 26. Moreover, it asserts that this a clearer standard for police officers making decisions ex ante and for courts reviewing ex post. See id. at 34?36. Kentucky argues that as long as the steps taken by police officers are not unlawful, then police conduct is within the bounds of the Fourth Amendment. See id. at 36.
In contrast, King argues that Kentucky’s “unlawfulness” standard is an improper categorical rule that ignores Fourth Amendment balancing requirements. See Brief for Respondent at 27. He asserts that every Court of Appeal follows the “totality of the circumstances” analysis that the Supreme Court established in Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006), and that accordingly, there is no circuit split for the Court to resolve. See Brief of Respondent in Opposition to Petition for a Writ of Certiorari at 5, 19–20. In Brigham City, King asserts the Court found that “as long as the circumstances, viewed objectively, justify the action,” the Fourth Amendment is satisfied. See id. Under this test, then, King argues that no bright line rule is possible because no single factor—lawfulness, foreseeability, or anything else—establishes the “circumstances.” See id. Because reasonability is indeed the “touchstone” of the Supreme Court’s Fourth Amendment analysis, King believes that Kentucky’s bright line test will strip the Fourth Amendment of its power to protect the sanctity of the home by permitting the police to create exigent circumstances with lawful action. See Brief for Respondent at 29–30.
Under the Fourth Amendment, police officers may conduct a warrantless search of a private dwelling only under exigent circumstances. Respondent King asserts that there were no such exigent circumstances when police entered and searched his apartment. Kentucky, however, maintains that the smell of burning drugs and the sound of movement inside of the apartment created the exigent circumstances justifying a warrantless entry. In resolving when the police impermissibly create exigent circumstances, the Supreme Court will need to balance the privacy interests of the accused with the necessity of allowing police to respond to changing circumstances.
Edited by: Kate Hajjar
· LII Annotated Constitution: Fourth Amendment Search and Seizure
· Findlaw, Sherry F. Colb: The U.S. Supreme Court Considers Whether Police Can “Make Their Own Exigency” in the Fourth Amendment Context (Dec. 8, 2010)