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Warrantless Entry – Exigent Circumstances Exception not Circumscribed by Whether “Police-Created”

Kentucky v. Hollis Deshaun King, USSC No. 09-1272, 5/16/11, reversing, King v. Commonwealth, 302 S.W.3d 649 (2010)

The exigent circumstances exception to the warrant requirement (here, imminent destruction of evidence) isn’t circumscribed by whether the exigency was “police-created.”

It is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. In this case, we consider whether this rule applies when police, by knocking on the door of a residence and announcing their presence, cause the occupants to attempt to destroy evidence. The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.

Despite the welter of tests devised by the lower courts, the answer to the question presented in this case follows directly and clearly from the principle that permits warrantless searches in the first place. As previously noted, warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. 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. 4


4  There is a strong argument to be made that, at least in most circumstances, 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. In this case, however, no such actual threat was made, and therefore we have no need to reach that question.

Looking for a dealer who had just sold drugs, the police smelled marijuana coming from one of two apartment units he might have fled into. They announced their presence, pounded on the door and, after hearing noises inside, kicked down the door, claiming they feared the imminent destruction of drug-related evidence. The Kentucky supreme court held that the police had created any exigency, and ordered suppression. The Supreme Court now reverses, rejecting the notion that whether the police contributed to the presence of exigent circumstances has any relevance. The test is simply objective: whether the police conduct was “reasonable,” which is itself tested by asking whether the police violated, or threatened to violate, the 4th amendment.

Without explicitly saying so, the Court has just ratified the increasingly common “knock and talk” practice. “Under ‘knock and talk,’ police go to people’s residences, with or without probable cause, and knock on the door, to obtain plain views of the interior of the house, to question the residents, to seek consent to search and/or to arrest without a warrant, often based on what they discover during the ‘knock and talk,'” Craig Bradley, ‘Knock and Talk’ and the Fourth Amendment, 84 Indiana Law Journal 1099. As Bradley puts it, his “article reviews the many cases on this issue and suggests some possible limits on the police.” With today’s green light, his suggested limits are little more than a curiosity. So, too, his idea that “the Supreme Court clearly disapproved of this sort of activity in 1948 in Johnson v. United States, 333 U.S. 10.” Rather, the Court says, “Johnson is simply not a case about exigent circumstances” at all. (A bit oddly, the Court neglects to say what that case is about; whatever that might be, though, it doesn’t have any prospect for regulating knock-and-talk procedure.) The police, in short, appear to be able to knock on your door for any reason, or none at all.

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer, 460 U. S. 491, 497–498 (1983) . (“[H]e may decline to listen to the questions at all and may go on his way”). When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.” Chambers, 395 F. 3d, at 577 (Sutton, J., dissenting). And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.

State v. Terion Lamar Robinson, 2010 WI 80, ¶32, incidentally, is cited as articulating a rule “similar to the one that we recognize today”  (Robinson: “the officers were conducting themselves in an utterly appropriate and lawful manner” when they knocked; “Robinson’s choice to run from the door created the exigent circumstances that justified the officers’ warrantless entry”). And what limits might be imposed? So far as the opinion suggests, only “an actual or threatened violation of the Fourth Amendment” might invalidate the practice in any given case. “This holding provides ample protection for the privacy rights that the Amendment protects.” Among other things, heightened attention must now be paid, not just to conduct at the door, but the manner of access to that point: whether it comports with the “implied invitation” doctrine, for example. It may not seem like much to work with, and it probably isn’t, but rght now it’s all you’ve got.

As for the “exigency” itself (destruction of evidence, because the police “could hear people inside moving”): that particular issue wasn’t reached by the Kentucky supreme court, and therefore is now merely assumed for the sake of argument by the Court. If this underlying issue sounds familiar, it’s probably because you’re thinking of State v. Vanessa D. Hughes, 2000 WI 24, which held that the smell of marijuana burning, coupled with the occupants’ knowledge the police were at the door, established exigent circumstances for warrantless entry. Speaking of which, leading 4th A scholar Orin Kerr believes that, merely because the Court didn’t reach the question of whether an exigency existed, King “is much narrower than many seem to think. … Importantly … the Court did not hold that the warrantless entry was justified ….” Maybe so, in some academic sense. But in Wisconsin, Hughes has already decided that question and, importantly, holds that an entry such as the one in King is indeed justified.

UPDATE. On remand, the Kentucky supreme court held that “that the Commonwealth has failed to show circumstances establishing the imminent destruction of evidence,” therefore, entry was not supported by exigent circumstances.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

The police officers’ subjective belief that evidence was being (or about to be) destroyed is not supported by the record, and this Court cannot conclude that the belief was objectively reasonable. “[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]” Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (citing Payton, 445 U.S. 573). Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.

King v. Kentucky, 2008-SC-000274-DG, 4/26/12.

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{ 1 comment… add one }
  • robin May 16, 2011, 8:56 pm

    this is scary

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