Kentucky v. King (Docket No. 09-1272, Decided May 16, 2011)

Summary

In Kentucky v. King (Docket No. 09-1272, Decided May 16, 2011) the United States Supreme Court held that a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. During the course of a controlled drug bust, officers in hot pursuit of a suspected drug dealer, but unsure which of two apartments the suspect entered, smelled marijuana smoke emanating from one of the apartments and erroneously presumed the suspect to be inside. Officers preceded to bang on the apartment door loudly announcing “This is the police” or “Police, police, police.” Upon hearing movement from within the apartment which caused officers to believe that drug-related evidence was about to be destroyed, the officers announced that they “were going to make entry inside the apartment.” Upon entry, officers discovered evidence of drugs.

The Kentucky Supreme Court held that the evidence obtained from the apartment search should have been suppressed on the grounds that the exigent circumstances exception to the warrant requirement did not apply because the officers deliberately created the exigency by knocking on the door, and that the hot pursuit exception to the warrant requirement did not apply because the suspect was not aware he was being pursued. Defendant was subsequently convicted on various drug charges.

On appeal to the Supreme Court, defendants contended that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable. However, the Court rejected this view, determining that the ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in announcing their presence and the forcefulness of their knocks. It further rejected the “bad faith,” “reasonable foreseeability,” “probable cause and time to secure a warrant,” and “standard or good investigative tactics” standards employed by the lower courts. Instead, the Court held that the appropriate standard is whether police gained entry to premises by means of an actual or threatened violation of the Fourth Amendment. It reasoned that when police, without a warrant, knock on a door, occupants are under no constitutional obligation to open the door or to speak to police. Therefore, 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.

Because, under these circumstances, the officers did not inform defendants they would make entry until after the exigency—the believed destruction of drug evidence—had arisen, the Court concluded that there was no evidence of a Fourth Amendment violation. However, the Court, for the purposes of argument, relied on the trial court’s determination that a genuine exigency existed; this finding was subsequently questioned by the Kentucky Supreme Court, observing that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” Noting that this was an issue to be addressed by the trial court, the Court reversed and remanded because the exigency justified the warrantless search of the apartment.

Significance

Warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The exigent circumstances doctrine, one well-established exception to the warrant requirement, permits police entry where there is an imminent risk of death or serious injury, a danger that evidence will be immediately destroyed, or fear that a suspect will escape. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The significance of the Court’s holding in Kentucky v. King lies in its potential to significantly curb the ability of defendants to successfully oppose warrantless searches on Fourth Amendment grounds. By permitting officers to “knock, listen, then break the door down,” the Court substantially expanded the scope of the exigent circumstances doctrine by allowing police to essentially create or manufacture the exigency to a greater degree than that which was permitted under the various standards previously employed by the lower courts. Kentucky v. King (Ginsburg, J., dissenting). For instance, the “bad faith” standard employed by some jurisdictions prior to King asked whether law enforcement officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement. United States v. Gould, 364 F.3d 578, 590 (5^th Cir. 2004). This standard, like the others rejected by the King Court, imposed a higher burden on law enforcement to show a legitimate, pressing cause for entry. Under the standard adopted in King, upon smelling marijuana, even if officers threaten to kick down the door if the occupants do not open it, its constitutionally permissible for the officers to enter if they hear sounds that suggest evidence is being destroyed. However, if a defendant answers the door and makes no sound, the officers would have no constitutional right to enter, although they may ask for permission to enter. Any evidence from that consensual search would be then be allowed. As Justice Scalia explained during oral argument, that would be “taking advantage of the stupidity of the criminals,” and “the one thing that [law enforcement] has going for it is that criminals are stupid.”

As such, the Court’s decision places individuals suspected of criminal activity in a lose-lose situation. Upon announcement of police presence, individuals are left with somewhat unfavorable options: (1) answer the door but decline consent to search—an option that many individuals, inherently intimidated by police and unaware of their constitutional rights would be unlikely to evoke; (2) answer the door and consent to police search—an option which would make any seized evidence fair game under the Fourth Amendment; or (3) fail to answer the door—an options which risks that any sound made in the moments following announcement might be construed as indicative that evidence is being destroyed, thus triggering the exigent circumstances exception as construed by the King Court.

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