Argument preview: When does police conduct create exigent circumstances, thereby precluding an entry or search without a warrant?

Although a warrant is generally required for police to enter a home or conduct a search, police are not required to seek a warrant if there are exigent circumstances requiring immediate attention – for example, if evidence might be destroyed, people are in danger, or a suspect might flee.  On Wednesday, in Kentucky v. King, the Court will consider the circumstances in which warrantless searches would not be permissible because the exigent circumstances were created by lawful police conduct.

Background

During an operation in which informants purchased crack cocaine from drug traffickers, one of the traffickers ran away toward an apartment building.  An undercover officer radioed to officers nearby that the suspect was fleeing.  Although the radio report also indicated that the suspect had entered the apartment on the right at the rear of the building, the officers who entered the building did not hear this.  Instead, the officers heard a door slam down the hall but could not determine whether the suspect had entered the apartment on the right or on the left.  However, the officers could smell marijuana; moreover, because the smell strengthened as they approached the left doorway, they reasoned that the door had recently been opened.  The officers banged on the door and identified themselves as police; as Orin Kerr pointed out in his analysis of the case last week, the parties dispute whether the police officers also demanded to be admitted to the apartment.  The officers then heard movement inside the apartment, which led them to believe that the occupants might have been destroying evidence, so they kicked the door open.  Inside, they found respondent Hollis King and two other individuals with significant amounts of marijuana, cocaine, and cash.  The original suspect was later found and arrested in the apartment on the right side of the hallway.

King was arrested and charged.  At trial, King’s counsel moved to suppress the evidence discovered during the warrantless entry.  The court denied this motion, reasoning that the smell of marijuana provided probable cause and that exigent circumstances existed as a result of the occupants’ failure to respond and the noises inside.  King conditionally pled guilty, but he appealed the denial of his motion to suppress.

The Kentucky Court of Appeals held that the exigent circumstances exception did not apply because the police had created the exigency, but it nonetheless affirmed the denial of the motion to suppress on the ground that the police had acted in good faith.  The Kentucky Supreme Court reversed and remanded.  It assumed that there were exigent circumstances, but it agreed with the lower court that the exception did not apply because the police had created the exigent circumstances.  In so holding, the Kentucky Supreme Court explained that the exigent circumstances exception does not apply if (1) the officers deliberately created the exigent circumstances in bad faith to avoid the warrant requirement; or (2) it was reasonably foreseeable that the police action would create the exigent circumstances.

The Commonwealth of Kentucky filed a petition for certiorari, which the Court granted with regard to the exigent circumstances question.

Kentucky did not seek a stay of the state supreme court’s decision.  Thus, shortly before Kentucky filed its petition, the trial court – on remand from the Kentucky Supreme Court – dismissed the case against King.  After certiorari was granted, King filed a motion to dismiss the petition as improvidently granted for three reasons, arguing that review is not warranted because the case is moot, double jeopardy has attached, and the case is not ripe.  Kentucky countered that dismissal does not render a case moot or unripe.  If it did, it reasoned, the government could never appeal trial court orders dismissing indictments unless there was a stay, which is not mandatory.  Moreover, double jeopardy does not attach because a jury was never empaneled and because a reversal by the Supreme Court would merely reinstate the conviction.  The Court denied the motion to dismiss.

Merits Briefing

In its brief on the merits, Kentucky argues that as long as police officers act lawfully, they cannot impermissibly “create” exigent circumstances.  Here, a consensual encounter between the police and the public was lawful and objectively reasonable; similarly, the officers’ entry into King’s apartment based on their belief that evidence was being destroyed was also reasonable.  Two lawful actions cannot make a “wrong”: because officers had probable cause to enter the apartment without knocking at all, their knock should not render the entry illegal.

Kentucky rejects the two-part test adopted by the lower court, arguing that it is well established in the Fourth Amendment context that any subjective inquiry into officers’ intent is always irrelevant.  In an amicus brief filed in support of Kentucky, the United States agrees, and it further notes that this prong is irrelevant here because there is no evidence that the officers acted in bad faith.  Turning to the second prong of the Kentucky Supreme Court’s test, Kentucky contends that the foreseeability prong would create perverse incentives:  refusing to apply the warrant requirement exception when legal police action could foreseeably create an exigent circumstance would reward illegal action.  It would also encourage police to conduct a search as soon as they have probable cause, rather than waiting to gain consent or gather more evidence, for fear that an exigent circumstance might become foreseeable after further action.  Here, it was the illegal destruction of evidence – not officers’ legal “knock and talk” – that created the exigent circumstance.  Because it was legal for the officers to knock and announce their presence at King’s apartment, Kentucky argues, the evidence should not have been suppressed.  Both Kentucky and the United States urge the Court to adopt this lawfulness test – which, in their view, is easy to apply – to determine when police have “created” exigent circumstances.

In his brief on the merits, King begins by disputing whether exigent circumstances existed at all.  He relies on Johnson v. United States (1948), which prohibited a near-identical search conducted as a result of the smell of opium.  Thus, he contends, there is no need for the Court to adopt a test for police-created exigent circumstances,  as the smell of marijuana and the sound of people moving fail to support the inference that evidence is being destroyed.  Howeve,r even if Johnson does not control, the ambiguous household sounds fail to overcome the presumption that a warrant is required to search a home.  Rather, King argues, the loud knocking and demands to be let in gave King and the other occupants the impression that entry was inevitable and imminent and that police did have such a warrant, and the police may not rely on the effects – here, people moving around inside – of such coercion to justify their decision to forego a warrant.  Finally, King contends that Kentucky’s proposed test is too broad because it avoids any balancing of competing interests and liberties; any motion to suppress will be denied as long as police heard indistinct movement after a knock at the door.