May 16, 2011
Court sides with cops in warrantless search Case concerned exceptions to 4th Amendment requirement that police need a warrant to enter a home
By Mark Sherman
WASHINGTON — The Supreme Court on Monday ruled against a Kentucky man who was
arrested after police burst into his apartment without a search warrant because they
smelled marijuana and feared he was trying to get rid of incriminating evidence.
Voting 8-1, the justices reversed a Kentucky Supreme Court ruling that threw out the
evidence gathered when officers entered Hollis King's apartment.
The court said there was no violation of King's constitutional rights because the
police acted reasonably. Only Justice Ruth Bader Ginsburg dissented.
Officers knocked on King's door in Lexington and thought they heard noises that
indicated whoever was inside was trying to get rid of incriminating evidence.
Justice Samuel Alito said in his opinion for the court that people have no
obligation to respond to the knock or, if they do open the door, allow the police to
come in. In those cases, officers who wanted to gain entry would have to persuade a
judge to issue a search warrant.
But Alito said, "Occupants who choose not to stand on their constitutional rights
but instead elect to attempt to destroy evidence have only themselves to blame."
In her dissent, Ginsburg said her colleagues were giving police an easy way to
routinely avoid getting warrants in drug cases.
"Police officers may now knock, listen, then break the door down, never mind that
they had ample time to obtain a warrant," she said.
The case concerned exceptions to the Fourth Amendment requirement that police need a
warrant to enter a home.
The issue was whether warrantless entry was justified after the officers' knock on
the door triggered a reaction inside that sounded like the destruction of evidence.
An odd set of facts led to Monday's ruling.
Police were only at King's apartment building because they were chasing a man who
sold cocaine to a police informant. The man entered King's building and ducked into
an apartment. The officers heard a door slam in a hallway, but by the time they were
able to look down it, they saw only two closed doors.
They didn't know which one the suspect had gone through, but, smelling the aroma of
burnt pot, chose the apartment on the left.
In fact, the suspect had gone into the apartment on the right. Police eventually
arrested him, too, but prosecutors later dropped charges against him for reasons
that were not explained in court papers.
Add Your Comments
§Analysis by Atty who helped King's defense & Alito potheads have to say "can't come
by RepostTuesday May 17th, 2011 12:13 AM
First this gem from Alito: potheads have to know the constitution says you can't
come and stand by it then everything is fine
"But Alito said the police did nothing wrong. If officers don’t create the emergency
“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
He said King could have told police they could not enter. “Occupants who choose not
to stand on their constitutional rights but instead elect to attempt to destroy
evidence have only themselves to blame” when police force their way in, he said."
How the decision should have come down:
Orin Kerr Contributor
Posted Wednesday, January 5th, 2011 1:44 am
RSSEmail OrinBio & Post Archive »
Police-created exigent circumstances in Kentucky v. King
Next week, the Supreme Court will be hearing oral argument in Kentucky v. King, a
potentially significant case Police-created exigent circumstances.
■Kentucky v. King
The exigent circumstances exception is a longstanding exception to the warrant
requirement, but the Supreme Court has carefully avoided saying what the actual test
is for exigent circumstances. The King case is on a specific aspect of the exception
— when police conduct creates exigent circumstances, which the police cannot then
use as a justification for an exigent search — and it may shed considerable light on
the topic of exigent circumstances as a whole.
In this post, I want to talk about the facts of the case and then consider the legal
issues. I want to make three points in particular. First, the facts of the case are
still in dispute on an essential point. Second, the legal issue presented in the
case is surprisingly narrow, a point that the briefing largely misses. Third, the
theories offered by the state and the United States as amicus curiae are in my view
far too broad, but the best answer is actually quite tricky but should be rooted in
By way of full disclosure, I should add that I was approached by counsel for King
for advice, and that I provided pro bono assistance to King in helping to craft
King’s argument. Some of my advice was adopted by King, and some was not. Either
way, my views in this post are mine and mine alone.
I. The Still-Disputed Facts
The facts of the King case are critical, although the briefs in the case present
somewhat different versions of what the facts are. The two sides agree on the
basics. Undercover police officers bought drugs from a suspect in an apartment
hallway; the suspect then went into an apartment. The undercover called in the
police to make the arrest, but the police did not hear which apartment the suspect
entered. The police arrived in the hallway, but weren’t sure whether the suspect had
entered the left apartment or the right apartment. They approached the left
apartment and smelled marijuana coming from inside. The police knocked, announced
that they were the police, and then heard something inside. After no one answered,
the police forcibly entered the left apartment and found King smoking marijuana
inside. The officers had chosen the wrong apartment: The person who had sold drugs
had entered the right apartment. Nonetheless, King was then charged with marijuana
Although those are the basic facts, the details of what happened at the door are
subject to dispute. Here’s how Kentucky describes it in its merits brief:
The officers reasoned that the opening of the left rear door which allowed the
fleeing felon entry, also allowed the scent of burning marijuana to escape the
apartment. The officers therefore believed that the fleeing felon had entered the
apartment door on the left. J.A. 21-24, 31-32, 38-40, 46-47, 54-57, 65- 66. However,
out of an abundance of caution, not knowing specifically which door the felon
entered, the police officers knocked loudly on the left door and announced
themselves. J.A. 21-24.
After no response, the officers heard things inside the apartment being moved
around. Based upon their training and experience, the officers recognized the sounds
coming from the apartment to be consistent with the sounds of destruction of
physical evidence. J.A. 23-25, 40-43. Believing that they were in hot pursuit of a
fleeing felon, that the felon had recently entered the left apartment, and that the
felon was now destroying physical evidence of his crime of trafficking, the police
officers entered the apartment. J.A. 24-25, 45-47.
King’s brief, which I have posted here, offers a different version of the facts.
King notes that the state trial court held a suppression hearing and announced
factual findings, which I have posted here. According to the factual findings of the
trial court, the officers “banged on the door of the apartment . . . identifying
themselves as police officers and demanding that the door be opened by the persons
inside.” That is, the officers didn’t just knock and announce themselves: They
knocked, announced their presence, and demanded to be let inside. King also notes
that the testimony of the officers was that they heard some sort of sound inside,
but the sound was of things being moved inside, rather than sounds of evidence being
destroyed. At the suppression hearing, the officer testified that he couldn’t tell
what the sound was, but that the sound was “possibly consistent” with the
destruction of evidence.
In its reply brief, which was filed just today — and which I have posted here —
Kentucky sticks to its position that the officers did not demand to be let inside.
Kentucky claims that the statement in the trial court’s finding of fact that the
officers “demand[ed] that the door be opened by the persons inside” was “merely a
case of imprecision” rather than an actual finding of fact. Reply Brief at 8.
Kentucky does not quite argue that the factual finding was clearly erroneous.
Rather, Kentucky appears to argue that the trial court did not actually mean it when
it said that the officers demanded to be let inside; what really happened, Kentucky
claims, is that the officers knocked loudly on the door and announced that they were
the police. (I suspect Kentucky takes this approach, rather than argue that the
trial court’s findings were clearly erroneous, because the Kentucky Supreme Court
expressly said that the trial court findings were supported by the record and were
“conclusive” for purposes of its opinion but did not state in its fact section that
the officers demanded entry.)
In light of the factual dispute, the first thing the Supreme Court has to do is
figure out whether the officers demanded to be let inside. Does it matter, you ask?
Well, I think it very well might. Let’s keep the facts unsettled for now and instead
turn to the legal issue. We’ll then come back to the facts after that.
II. The Doctrine of Police-Created Exigencies — and the Narrowness of the Issue
Before the Court
The basic idea of the exigent circumstances exception is that if there is some
emergency, the police cannot be expected to get a warrant. If a suspect is
destroying evidence when the police arrive, or if they are in hot pursuit of a
suspect, the police cannot wait to get a warrant: By the time they get a warrant,
the evidence will be gone. In applying this exception, the lower courts have created
a doctrine of police-created exigencies. If the police created the exigency, then
the police cannot rely on the exigency that they created to justify the warrantless
search. The basic idea is that the police can’t circumvent the warrant requirement
by manufacturing emergencies: If the police can create emergencies and then conduct
warrantless entries, then the warrant requirement isn’t very meaningful.
It’s important to realize that the question presented in Kentucky v. King is very
narrow: It is limited to the question of when police conduct creates an exigency.
The Supreme Court of Kentucky’s decision held that there was no exigency based on
the (incorrectly) believed entry of the suspect or the smell or marijuana inside.
The Court next assumed for the sake of argument that the sounds inside were enough
to create exigent circumstances. The Court then held that even with this assumption,
the police could not rely on the sounds inside after they knocked and announced
their presence to justify a warrantless search because the officers created the
Kentucky’s cert. petition tried to get the Court to review two issues: First, the
correct test for when police conduct creates exigent circumstances, and Second, how
the “hot pursuit” test (which is part of exigent circumstances) is to be applied.
Notably, when the Supreme Court granted cert, the Court granted only on the first
question. Thus the only issue properly before the Justices is when police conduct
creates an exigency. If the Court reverses on this issue and holds that the police
conduct did not create the exigency in this case, then I assume the Supreme Court
will remand the case back to the Kentucky Supreme Court and the Kentucky Supreme
Court can then consider whether the noise in the apartment was enough to actually
constitute exigent circumstances.
III. What is the Test for Police-Created Exigent Circumstances?
Finally we come to the issue on which the Court granted cert.: What’s the test for
police-created exigent circumstances? In its brief, Kentucky argues that the police
in this case merely conducted a “knock and talk” — that is, they knocked on the door
and sought to speak with the person inside — and that this is perfectly lawful
conduct that should be held categorically to not create exigent circumstances.
Kentucky then makes a broader argument that is similar to the one DOJ makes in its
amicus brief: When police have probable cause to get a warrant, any lawful conduct
they engage in cannot create exigent circumstances.
I don’t think either of those tests works. First, Kentucky is being unserious when
it suggests that the facts of the case were merely a “knock and talk.” When the
police conduct a knock and talk, they first knock, and they then wait to see if
someone opens the door. If someone opens the door, the police talk to that person to
try to develop more facts that can later support a warrant. The fiction is of a
friendly chat: The police are essentially dropping by to say hello, and people are
free to open the door or not as they wish. Even assuming there was no demand for
entry in this case, this case does not involve a knock and talk. The officers just
banged on the door and yelled that they were the police. And if there was such a
demand, it is obviously very different from a knock and talk.
Second, I don’t see how the test can be that any lawful conduct is permitted. First,
the question of what counts as “lawful” is quite murky. Does the lawful test mean
lawful under Fourth Amendment law? Constitutional law as a whole? Federal statutory
law? State law? International law? The law of war? What counts?
These are not fanciful questions. For example, imagine the police want to release
tear gas in an effort to “smoke out” the suspect. Can they release the tear gas,
then, when they hear sounds inside, break in without a warrant on the grounds of
exigent circumstances? Releasing tear gas is not a search or a seizure. It doesn’t
violate the Fourth Amendment. And as far as I know, the police are allowed to
release tear gas under other laws, as well: They certainly do it on occasion. But
who knows, maybe there is some law somewhere that regulates police use of tear gas.
Does that matter? For these reasons, the question of “lawfulness” strikes me as very
More broadly, a rule that the police can do whatever they want that is “lawful”
without creating exigent circumstances seems totally unmoored from the purpose of
the exigent circumstances exception. The point of having a doctrine on
police-created exigencies is to recognize that police-created exigencies are not
true exigencies. If the police opt to do the thing that creates the emergency, then
there was no genuine emergency. It’s kind of like entrapment doctrine. The police
can’t badger a suspect into committing a crime and then arrest him for it, as it was
police action, not the suspect’s own decisions, that caused the crime to occur. For
that reason, whether the police conduct was “lawful” doesn’t seem relevant to
whether it creates exigent circumstances.
At the same time, coming up with a test is actually pretty tricky. For example, I
tend to think the doctrine of police-created exigency calls for some sort of a
causation test. If police conduct was the proximate cause of the evidence, that
evidence cannot be relied on to support exigent circumstances. At the same time, it
makes sense for the police to be able to do what private citizens normally do. If
the police do what private citizens normally do, then they are not creating an
exigency: They are just doing what everyone does, and the exigency is caused by the
quirky reactions of the suspects rather than the police action. Put another way,
what creates the exigency should be the the unusual or official-police-like
behavior, beyond what private citizens routinely do, and the reactions that this
unusual or official-police-like behavior causes. I realize this is a murky sort of
test. But then I think this is a murky sort of problem in the first place.
Where does that bring us? In Kentucky v. King, I think it suggests a need for a
narrow holding: Not a one-size-fits-all test for police-created exigent
circumstances, but rather something more for the specific facts of this case. For
that reason, I tend to support the test offered in King’s brief starting at Page 22
that the police create exigent circumstances when a reasonable person would believe
that the police are about to conduct a forcible search — and the facts alleged to
create the exigency are the natural byproduct of that perception.
Here’s my thinking. When the police bang on a door, shout that they are the police,
and demand entry, they do what they do when they have a warrant. To someone inside,
that noise from outside creates the impression that the police are following the
“knock and announce” rule they have to follow when executing warrant. Under the
rule, if no one answers the door in 15-20 seconds, the police will break down the
door and enter. If I’m in an apartment and I hear that outside, I’m not just going
to sit there in my apartment and keep watching TV or surfing the Internet or
watching the paint dry. Rather I’m either going to run to the door immediately to
stop the police from breaking it down (which I have only a few seconds to do before
they enter) or else I’m going prepare myself for a bunch of cops violently entering
a few second later. Either way, I’m going to move around and make some noise.
Anyway, how that test should apply to the facts of Kentucky v. King isn’t obvious,
as the facts are still in dispute. But I think that’s the kind of analysis that
should frame the Court’s approach to the problem.
Wednesday, May 18, 2011
May 16, 2011