U.S. Supreme Court 05-16-11

by: Grapkoch • May 15, 2011 • no comments

Read the full article for details about the following new cases:

• Police-Created Exigent Circumstances

This morning, the Court issued an opinion in Kentucky v. King, which asked under what circumstances can lawful police action impermissibly "create" exigent circumstances that preclude warrantless entry? In response to the question, the Court announces the general rule that "[w]here, 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." The Court also notes, in passing, that "[t]here 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." Ginsburg offers the lone dissenting voice.

In this case, the officers were in pursuit of a suspect who had recently been seen conducting a drug transaction. After following the suspect into an apartment complex and hearing a door shut, the officers came upon two apartment doors, unsure of which the suspect had entered. Smelling a strong odor of marijuana emanating from the doorway on the left, the officers knocked "as loud as [they] could" and announced, "'This is the police'" or "'Police, police, police.'" After making these announcements, the officers heard loud noises inside as if something was being moved, and therefore they kicked in the door on the belief that drugs were being destroyed. They found a large quantity of drugs and paraphernalia; later, they found their initial suspect-in the other apartment.

Before applying the foregoing principles, the Court rejects outright at least four tests suggested by lower courts-and one offered by Respondent-in dealing with the doctrine of "police-created exigencies":

1. The Court first rejects "the suggestion by the Kentucky Supreme Court that a subjective standard applies whereby courts ask whether the officers in question "deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement." The test, the Court stresses, is an objective one-as in virtually all Fourth Amendment circumstances.
2. Next, the Court also rejects any application of a foreseeability test, under which courts would ask whether "it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances." Two factors persuade the Court to reject this approach: First, the rule was created on the premise that officers would be acting on some degree of suspicion in the first place; Second, because of the first factor, inquiring into foreseeability would create uncertainty for both investigating officers and lower courts.
3. The Court also rejects a test that would automatically invalidate a search based on exigency where the police had probable cause and enough time to secure a warrant. After noting several reasons, the Court bluntly states that "[f]aulting the police for failing to apply for a search warrant at the earliest possible timeafter obtaining probable cause imposes a duty that is nowhere to be found in the Constitution."
4. The Court moves on to reject a test that would hinge on whether the police acted "contrary to standard or good law enforcement practices (or to the policies or practices of theirjurisdictions)," because "[t]his approach fails to provide clear guidance for law enforcement officersand authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies."
5. And, finally, the Court rejects the Respondent's suggested test, which would invalidate a police-created exigency were the police "engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable." The Court stresses that this "nebulous and impractical" test, with all of its "subtleties," would be "nearly impossible" for courts to administer.

Then, applying its newly-minted test with a clear vision of the factors that do not apply, the Court finds no evidence in the record of this case to suggest "that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment." The simple announcements made by the police, although strict, were entirely consistent with the Fourth Amendment. Two more factors lead the Court to uphold the actions in this case. First, contrary to respondent's contention, there was neither sufficient evidence nor findings in the record to support the conclusion that the police "demanded" entry. And, second, although the police explained that they were going to enter regardless of compliance, this explanation came only after the presumed exigency arose.

More information on Kentucky v. King can be found at the SCOTUSblog case page, available here. Kentucky v. King