Opinion recap: Court articulates test for exigent circumstances

Although warrantless searches are presumptively unreasonable under the Fourth Amendment, the Court has carved out exceptions to that general rule for (among other things) exigent circumstances, such as the imminent destruction of evidence.  The lower courts had held that the exigent circumstances rule did not apply when the exigency was created by police conduct, but there was no consensus on how to determine when police impermissibly create such exigencies.  On Monday, in Kentucky v. King (09-1272), the Court – in an opinion by Justice Alito – held that the exigent circumstances rule applies as long as the police do not use an actual or threatened violation of the Fourth Amendment to gain entry to a premises.

The case arose from efforts by police to follow a suspected drug dealer into an apartment building.  Although the officers were unsure which apartment the suspect had entered, they smelled marijuana wafting from one apartment:  they then knocked on that door and identified themselves as police.  When they heard shuffling noises inside the apartment after the knock, the police believed evidence was being destroyed and entered the apartment without a warrant; inside, they found respondent Hollis Deshaun King, along with drugs and drug paraphernalia.

In reaching its holding, the Court rejected several other tests adopted by lower courts generally and the Kentucky Supreme Court in this case (in his post yesterday, Orin Kerr discusses the Court’s decision-making process in more detail):  it reasoned, for example, that a “bad faith” requirement would be inappropriate because only objective reasonableness is relevant; that a “reasonable foreseeability” test would be too unpredictable and difficult to quantify; that requiring police to get a warrant as soon as they have probable cause would “unjustifiably interfere[] with legitimate law enforcement strategies” and is inefficient; that a test that inquires into whether police used standard or good investigative tactics would “fail[] to provide clear guidance for law enforcement officers”; and that a test that examines whether the police action “would cause a reasonable person to believe that entry is imminent and inevitable” turns on too many “subtleties.”

The Court explained that its test will still provide “ample protection for the privacy rights that the Amendment protects.”  Occupants may still decline to open the door or speak with police, and if they choose to open the door they can refuse to answer questions or allow the police to come inside.  “Occupants who . . . elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue,” the Court warns.

In her dissent, Justice Ginsburg contends that the Court’s decision “arms police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases”; in a largely rhetorical question, she also asks whether our homes will actually remain secure “if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity[.]”  To maintain the protections of the Fourth Amendment, she argues, the exigent circumstances must exist “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.”

Justice Ginsburg notes that if the police had not knocked, no evidence would have been destroyed; she emphasizes that even the Court’s opinion concedes that “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police,” and here the suspects would not have anticipated police discovery but for the knock.  The police could have posted officers outside the apartment while obtaining a warrant for entry because there was “very little risk” that the evidence would have been destroyed while awaiting a warrant.

In its opinion, the Kentucky Supreme Court had assumed without deciding that exigent circumstances were present in this case, and the Court’s opinion did not resolve that question, instead leaving that factual question open for the Kentucky Supreme Court to decide on remand.