©2011 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) Kentucky v. King, U.S. Supreme Court, May 16, 2011

Law Enforcement does not violate the Fourth Amendment simply by creating exigency. Exigency which violates the Fourth Amendment occurs only when the conduct creating the exigency also violates the Constitution.

Kentucky v. King, slip op. 09-1272, 2011 U.S. LEXIS 3541 (May 16, 2011)

In Kentucky v. King, the United States Supreme Court considered the task often faced by law enforcement officers as to when it is proper under the Fourth Amendment for officers to make a warrantless entry into a home to prevent the destruction of evidence.  At issue in the case was whether the conduct of law enforcement created the exigent circumstance so as to make the entry unreasonable. Thus, the decision diagrams for law enforcement when conduct by law enforcement creates unconstitutional exigency versus what conduct makes reasonable exigency. The Court outlined the facts of the case as follows:

This case concerns the search of an apartment in Lexington, Kentucky. Police officers set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After the deal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the officers that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to “hurry up and get there” before the suspect entered an apartment. App. 20.

In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana.

At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud as [they] could” and announced, “‘This is the police'” or “‘Police, police, police.'” Id., at 22-23. Cobb said that “[a]s soon as [the officers] started banging on the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.” Id., at 24. These noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.

At that point, the officers announced that they “were going to make entry inside the apartment.” Ibid. Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent’s girlfriend, and a guest who was smoking marijuana. The officers performed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.

It is noted that the prosecution conceded that King had standing (a privacy interest) in the apartment since his girlfriend, with whom he had a child, leased the apartment and he stayed there part of the time.

The Supreme Court of Kentucky invalidated the search using a subjective test with respect to the creation of exigency by officers.  Although that court did not find bad faith on the part of the officers it essentially held that when officers knock on the door it is reasonably foreseeable that persons inside will destroy evidence, thus the destruction and therefore the exigency was created by law enforcement and could not justify entry.  This holding set off the appeal to the United States Supreme Court.

In analyzing the case, the United States Supreme Court noted that warrantless searches of homes are unreasonable unless justified by some recognized exception to the warrant requirement.  The Court went on to outline the various types of exigency that may justify an entry without a warrant:

One well-recognized exception applies when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant”.

This Court has identified several exigencies that may justify a warrantless search of a home. Under the “emergency aid” exception, for example, “officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” ; see also, e.g., Fisher, supra, at ___, 130 S. Ct. 546, 175 L. Ed. 2d 410, 413 (upholding warrantless home entry based on emergency aid exception). Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.  And — what is relevant here — the need “to prevent the imminent destruction of evidence” has long been recognized as a sufficient justification for a warrantless search. [cites omitted]

Thus, the Court’s focus here was on when law enforcement is justified in making entry to prevent the imminent destruction of evidence and how law enforcement’s conduct leading up to that point impacts the admissibility of evidence discovered as a result of the entry.  The Court pointed out that a number of lower courts had identified a concept of “police created exigency” which essentially meant that law enforcement could not purposely create an exigent circumstance to circumvent the warrant requirement.  The Court noted:

In applying this exception for the “creation” or “manufacturing” of an exigency by the police, courts require something more than mere proof that fear of detection by the police caused the destruction of evidence. An additional showing is obviously needed because, as the Eighth Circuit has recognized, “in some sense the police always create the exigent circumstances.”   That is to say, in the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.

The Court thus recognized that it is always some action of law enforcement that creates the fear and therefore the exigency when dealing with destruction of evidence cases. Therefore a rule which held that if any law enforcement conduct created the exigency, then the entry without a warrant would be invalid would essentially abolish this exception.

The Court went on to distinguish what types of conduct by law enforcement would invalidate an exigent entry to prevent the destruction of evidence.  After noting that the lower courts had developed five different tests to determine the validity of such exigent entries the Court held:

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. For these reasons, we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. This holding provides ample protection for the privacy rights that the Amendment protects.

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. When the police knock on a door but the occupants choose not to respond or 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.” 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.

Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

The Court then applied its holding to the facts which were presented by this search:

In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either “‘police, police, police'” or “‘this is the police.'” This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence that might show that the officers either violated the Fourth Amendment or threatened to do so (for example, by announcing that they would break down the door if the occupants did not open the door voluntarily).

Respondent argues that the officers “demanded” entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion. He relies on a passing statement made by the trial court in its opinion denying respondent’s motion to suppress. In recounting the events that preceded the search, the judge wrote that the officers “banged on the door of the apartment on the back left of the breezeway identifying themselves as police officers and demanding that the door be opened by the persons inside.” However, at a later point in this opinion, the judge stated that the officers “initially knock[ed] on the door of the apartment unit and await[ed] the response or consensual entry.” This later statement is consistent with the testimony at the suppression hearing and with the findings of the state appellate courts.

There is no evidence of a “demand” of any sort, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to our attention, the state court may elect to address that matter on remand.

Finally, respondent claims that the officers “explained to [the occupants that the officers] were going to make entry inside the apartment,” but the record is clear that the officers did not make this statement until after the exigency arose. As Officer Cobb testified, the officers “knew that there was possibly something that was going to be destroyed inside the apartment,” and “[a]t that point… [they] explained… [that they] were going to make entry.” Given that this announcement was made after the exigency arose, it could not have created the exigency.

Like the court below, we assume for purposes of argument that an exigency   existed. Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.

The Court then remanded the case to the Kentucky Supreme Court to determine if any threatening to violate the Fourth Amendment or actual violation of the Fourth Amendment had occurred prior to the sounds of destruction of evidence which was the exigent circumstance.

BOTTOM LINE:  If law enforcement has not threatened to violate the Fourth Amendment or has not violated the Fourth Amendment prior to the Exigent Circumstance arising, the exigent entry is valid.

If instead officers have threatened to break down the door or demanded entry such that the occupants believe that law enforcement will enter if they fail to comply and this occurs prior to the exigent circumstance, i.e. hearing sounds consistent with destruction of evidence, then the exigent entry will likely be invalidated.

Officers would be well advised when dealing with these types of cases to choose their words carefully during the knock and announce, the Court took no issue with a loud knock and announcement of police presence but did suggest that a demand of entry without a warrant prior to the exigent circumstance may lead to the unconstitutional creation of exigency on the part of the officers.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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