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.