Argument recap: Choosing the rule for warrantless searches when police create exigent circumstances

During oral argument in Kentucky v. King on Wednesday, the Court struggled to find the proper test for determining when police are prohibited from justifying a warrantless search with exigent circumstances that they create.  Because neither side supported the Kentucky Supreme Court’s two-prong test, a straightforward affirmance seems very unlikely; instead, the Court focused on whether the state’s proposed “lawfulness” test or another of the five tests currently being used by lower courts is best.

Joshua D. Farley, an Assistant Attorney General in Kentucky, argued on behalf of the state, and he advocated a lawfulness test: as long as the police officer’s actions that created the exigent circumstances were lawful, the evidence will not be suppressed.  Farley shared his time with Ann O’Connell, Assistant to the Solicitor General, who argued on behalf of the United States.  She agreed that a lawfulness test is appropriate and preferable to either the “holistic reasonableness” test advanced by Justice Kagan or a “bad faith” prong advanced by Justice Breyer.

After establishing that probable cause (in this case, the smell of marijuana) must exist before and independent of the exigent circumstances (here, the sounds and movement that led police to believe evidence was being destroyed), the Justices were eager to supply hypotheticals to test the limits of the state’s proposed test.  The Chief Justice and Justices Ginsburg and Sotomayor asked whether officers could go every two weeks to an apartment building where they know there is a lot of drug activity, knock on all the doors where they smell marijuana, and enter as soon as they hear people moving or a toilet flushing; Farley responded that such actions “would be perfectly fine.”  In his view, even if officers had threatened to kick down the door if the occupants didn’t open it, if the officers heard sounds of evidence being destroyed, it would “still [be] fine under a lawfulness test.”

On the other hand, if the defendant had answered the door or had not made any sounds, the officers would not have been able to enter, although they could have asked for permission to enter.  Any evidence from that consensual search would be allowed; as Justice Scalia explained, 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.”

At various times during the argument, the Justices expressed worry that the lawfulness rule would effectively eliminate the warrant requirement.  Justice Kagan declared that “if there is one place where the warrant requirement has real force, it’s in the home,” while Justice Sotomayor worried that this rule would justify “a simple warrantless entry in any drug case” because “any police officer will come in and say:  In my experience, most drug dealers destroy evidence when we knock.”  Farley responded that there would still be a totality of the circumstances inquiry to determine whether exigent circumstances existed at all; this threshold requirement ensures that unreasonable searches will not occur.

O’Connell agreed that without exigent circumstances, the warrantless search will always be impermissible.  When Justice Sotomayor asked whether the police could lawfully enter if someone opens and closes a door in the back to leave in response to a knock from the police, O’Connell did not believe that was an exigent circumstance.  She explained that “police would have to be able to articulate to a court that they objectively, reasonably believed that there was destruction of evidence occurring inside.”  In this case, she argued, that concern is irrelevant: the question presented assumes that those exigent circumstances exist, and it is the Kentucky Supreme Court’s job to determine whether that assumption is correct.

Arguing for respondent Hollis Deshaun King, Jamesa J. Drake focused her argument on the facts of the case, resulting in some frustration among the Justices.  When Drake contended that there was no exigency in this case, Chief Justice Roberts quickly interrupted her, suggesting that the underlying facts were not “terribly relevant” because the exigency issue would be addressed on remand.  Drake countered that the legal question could not be answered without first establishing that exigent circumstances were present, but Justice Kennedy explained that the Court was only interested in “whether or not the police may create exigent circumstances and use those exigent circumstances to enter.”  Drake emphasized that because the case has been dismissed, the question whether there were exigent circumstances cannot be addressed on remand.  However, the Chief Justice again protested, suggesting that because the Court had already considered that argument in her motion to dismiss the case as improvidently granted “[a]nd, yet, [] nonetheless decided to have argument, . . . maybe it would be best to move on to the legal issue.”

Drake again returned to the facts of the case, arguing that the officers’ actions were impermissible because they were “banging, not knocking” on the door and demanding to be allowed inside even though they lacked a warrant.  The Chief Justice, however, construed this argument by Drake as an effort “to change the case,” and Justice Scalia agreed that “the case before us is what if the police officers are behaving perfectly lawfully and they’re not threatening to kick the door down.”  Although there may be “considerable support on the Court for the proposition” that illegal action by police officers cannot create a permissible exigent circumstance, Justice Scalia deemed that a very different question from the one in front of them.  Even Justice Sotomayor acknowledged that “it’s not clear from this record which of the two the police did.”

Justice Breyer pushed Drake on the appropriate test for clearly legal action, like a simple knock.  Drake responded that an officer acts unreasonably if a reasonable person would have thought that entry was imminent and inevitable.  Several Justices attempted to determine how this test differs from the government’s test of lawfulness.  Justice Kagan asked whether both parties agree on the test, but merely disagree about what is “lawful.”  Chief Justice Roberts pushed for an example of conduct that would be unreasonable but not unlawful, but Drake could not identify one.  When asked why she prefers “unreasonable” rather than “unlawful,” Drake replied, “Because, frankly, I’m not sure what [unlawful] means.”  “You don’t know what unlawful means, but you do know what unreasonable means?” Chief Justice Roberts countered.

Though Drake told Justice Ginsburg that her test is “novel” and unlike any of the five tests currently used by lower courts, Justice Breyer disagreed: “Your test [is] not wild.  It just says unreasonable in the Fourth Amendment.  Probably when they act lawfully, they are acting reasonably and not unreasonably, but it could be sometimes they’re not.  That’s your view?”  “That’s correct,” she answered.  She tried to continue, but Justice Breyer cut her off: “No test.  All right.”

Farley used his rebuttal to argue that police action that does not violate the Fourth Amendment cannot impermissibly create an exigency.  He argued that the Fourth Amendment already prohibits the practices the Justices fear, so no further inquiry—and no other test—is necessary.