FEATURED IN INVESTIGATION
A few weeks ago, the U.S. Supreme Court addressed a case involving police officers knocking on an apartment door after smelling marijuana and hearing movement inside.1 Understanding this decision is extremely important for officers because, in the weeks following the decision, legal and law enforcement pundits have grossly misreported the Court’s holding as expanding the power of law enforcement to enter into homes without a warrant. So let me be clear at the outset: The Court’s decision in Kentucky v. King doesn’t stand for the proposition that anytime police officers smell marijuana emanating and hear the sounds of movement from inside an apartment, they can enter the apartment without a warrant.
While the facts forming the basis of the warrantless search in this case were briefly touched upon, the Supreme Court failed to address the specific issue of whether the officers’ entry and search of the apartment violated the Fourth Amendment. Instead, the Supreme Court addressed the proper test that should be applied in determining whether law enforcement’s warrantless entry into a home is lawful under the exigent circumstances exception.
Officers in Lexington (Ky.) were involved in an undercover drug operation. They observed a controlled drug transaction in the parking lot of an apartment complex. The officer conducting surveillance of the operation, once the sale was complete, radioed to uniformed officers to move in on the suspect as he proceeded toward the breezeway of the complex.
By the time the uniformed officers arrived at the complex, they heard a door slam at the end of the breezeway where there were two doors—one on the left and one on the right. The officers were unsure of which apartment the suspect entered, so when the officers smelled marijuana coming from the apartment on the left, they approached that door. The officers banged on the door as loud as they could and announced, “This is the police!” and “Police, police, police!”2
Immediately following the announcement, the officers heard sounds coming from inside the apartment that were consistent with the occupants moving about, perhaps to destroy evidence. At that point, the officers declared that they would be entering the apartment and kicked in the door.
When they entered, the officers found Hollis King, King’s girlfriend and a guest who was smoking marijuana. During their protective sweep of the apartment, the officers located marijuana and cocaine in plain view. In a subsequent search, they also located crack cocaine, cash and drug paraphernalia.
The police eventually entered the apartment on the right where the suspected drug dealer who was the initial target of the investigation was located.
The Court Proceedings
King was charged with several drug-trafficking crimes. After losing his motion to suppress, King entered a conditional guilty plea to reserve his right to appeal the denial of the motion to suppress. He was then sentenced to 11 years imprisonment.
On appeal, the Kentucky Court of Appeals affirmed the lower court’s ruling. It held that exigent circumstances justified the warrantless entry because the police reasonably believed that evidence would be destroyed.
However, the Kentucky Supreme Court reversed the appellate court ruling, despite the fact that it “assumed for the purpose of argument that exigent circumstances existed.”3 That’s because the issue for the Kentucky Supreme Court was whether the police officers deliberately created the exigent circumstances thereby avoiding the need to obtain a warrant to enter into the apartment. In other words, the police can’t create exigent circumstances and then rely on the exigent circumstances they’ve created in order to justify a warrantless search.
This doctrine of “police-created exigent circumstances” has developed over the years by several courts throughout the country. The tests to determine whether the exigent circumstances were created by the police vary widely. The Kentucky Supreme Court crafted a two-part test.
“First, courts must determine ‘whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.’ If so, then police can’t rely on the resulting exigency. Second, where police haven’t acted in bad faith, courts must determine ‘whether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry.’ If so, then the exigent circumstances can’t justify the warrantless entry.”4
Applying the test to the facts, the Kentucky Supreme Court concluded that they couldn’t rely on the sounds of movement inside the home after the police knocked and announced their presence as evidence of exigent circumstances (despite being lawfully present). Incredibly, the Court stated that although the police had acted in good faith, they had announced their presence unnecessarily. This created the fear that evidence would be destroyed. As such, according to the state’s Supreme Court, the police weren’t permitted to rely on the natural consequences of that fear as the basis of the exigency.
The matter went up to the U.S. Supreme Court. Again, the issue before the Court wasn’t whether the police were confronted with exigent circumstances. Instead, it addressed the limited issue of what’s the proper test for “police-created exigent circumstances.”
U.S. Supreme Court Opinion
The Court reiterated that the Fourth Amendment requires that all searches and seizures must be reasonable. It also restated searches and seizures inside a home without a warrant are presumptively unreasonable.
The Court noted that over the years, several exceptions to the warrant requirement have been carved out, including the existence of “exigent circumstances.” Examples of exigent circumstances include preventing injury to someone, rendering aid to an injured person, following a suspect while in “hot pursuit” or to prevent the occupants from destroying evidence. But then, several courts throughout the country created the “police-created exigent circumstances” exception to the “exigent circumstances” exception to the search warrant requirement.
The Court noted that there are currently five different tests being used by the Courts of Appeals to determine whether the police unlawfully create the exigent circumstances. It recited its reasons why each of these tests were unworkable, emphasizing that the answer to the question presented in this case “follows directly and clearly from the principle that permits warrantless searches in the first place.”5
In other words, “warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense.”6
Thus, the newly established rule: “Where, as here, the police didn’t 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.”7
The Supreme Court found this to be a workable formula because it’s used in other types of searches when determining their reasonableness. For example, law enforcement officers are permitted to seize evidence in plain view, as long as they haven’t violated the Fourth Amendment in arriving at the place from which the observation of the evidence is made.
Thus, the Supreme Court rejected all of the various tests used by the appellate courts and lower courts that considered whether the officers acted in bad faith: whether it was reasonably foreseeable that the police tactics would “create” the exigent circumstances;8 whether officers had time to secure a warrant as opposed to speaking with the occupants of the house to obtain consent; and whether the police used standard police, or good, investigative tactics.
The Court asserted that “when law enforcement officers who aren’t armed with a warrant knock on a door, they do no more than any private citizen might do.”9 It reminded us that whether the person knocking on the door is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Further, if the occupant does decide to open the door and speak with police officers, they certainly don’t have to allow the officers to enter the residence and can 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.”10
If the police didn’t violate or threaten to violate the Fourth Amendment prior to the exigency, the exigency justifies a warrantless entry and search. Or, put another way, if the police violate or threaten to violate the Fourth Amendment prior to the existence of exigent circumstances, a warrantless search violates the Fourth Amendment.
Applying this test to the facts of this case, the Supreme Court, like the lower courts, assumed that exigent circumstances existed. It found no evidence that the officers either violated the Fourth Amendment or threatened to do so (by announcing, for example, that they would break down the door if the occupants didn’t open the door voluntarily, or that they “demanded” entry) prior to the point they entered the apartment. They were lawfully at the location when they knocked on the door.
Finding that there was an exigency, and that the officers didn’t violate or threaten to violate the Fourth Amendment prior to the exigency, the exigency justified the warrantless search of the apartment. As such, the Supreme Court reversed the Kentucky Supreme Court’s decision and remanded it for further proceedings.
Important: The Supreme Court didn’t decide whether the facts of this case (the smell of marijuana and people moving inside an apartment) constituted exigent circumstances. The Kentucky Supreme Court is to decide this very issue on remand. I will tell you this: The Kentucky’s highest court didn’t sound convinced.
1. Kentucky v. King, No. 09-1272, 2011 WL 1832821, ___________ S. Ct. ___________ , (May 16, 2011).
2. Id. at *3.
3. Id. at *4.
5. Id. at *7.
6. Id. (emphasis added).
8. This is one of the most astonishing tests. Courts applying this test have invalidated warrantless home searches on the theory that it was reasonably foreseeable that police officers, by knocking on the door and announcing their presence, would lead a drug suspect to destroy evidence. Really?
9. King, at *11.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
Editors Note—Once again, this case demonstrates the importance of clearly written reports that fully document the totality of the circumstances. In this case, the actions of the officers before, during and after the entry were scrutinized and the exact words the officers used when knocking on the door were a factor. Trainers and supervisors have a responsibility to make sure actions and thought processes are thoroughly and clearly laid out in police reports. You never know when your actions may end up reaching the U.S. Supreme Court and setting case law that affects the entire country.