Recently, in Kentucky v. King, 131 S.Ct. 1849 (2011), the United States Supreme Court said, “Yes!” Even though the exigency in this case may have been “police created,” the officers’ actions prior to their entry into the apartment were “entirely lawful.” The exigent circumstances rule “applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.”
The Case: Police officers from Lexington, Kentucky, set up a controlled buy of crack cocaine outside an apartment complex. As soon as the buy was completed, Officer Gibbons “radioed uniformed officers to move in on the suspect. He told the officers that the suspect was moving quickly toward the breezeway of an apartment building and he urged them to ‘hurry up and get there’ before the suspect entered an apartment.”
“In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.”
Officer Cobb, one of the uniformed officers who approached the door, knocked and announced loudly, “This is the police” or “Police, police, police.” According to Cobb, as soon as the officers started banging on the door, they “could hear people inside moving,” and it sounded as though “things were being moved inside the apartment.” These noises, according to Cobb, “led the officers to believe that drug-related evidence was about to be destroyed.”
“At that point, the officers announced that they ‘were going to make entry inside the apartment.’ Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: [defendant] Hollis King, [his] girlfriend, and a guest who was smoking marijuana. The officers performed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.”
Subsequently, the police entered the apartment on the right. “Inside, they found the suspected drug dealer who was the initial target of their investigation.”
The Law: The Kentucky Supreme Court determined that exigent circumstances could not justify the search because it was “reasonably foreseeable that the occupants would destroy evidence when the police knocked on the door and announced their presence.” The United Supreme Court disagreed and reversed. According to the Court, the exigent circumstances exception to the written warrant requirement applies when the police do not impermissibly create the exigency – that is, “by engaging or threatening to engage in conduct that violates the Fourth Amendment.”
One of the well recognized exceptions to the written warrant requirement applies “when ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’ ” Once such exigency in- volves “the need to prevent the imminent de- struction of evidence.”
“Over the years, lower courts have developed an exception to the exigent circumstances rule, the so-called ‘police-created exigency’ doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was ‘created’ or ‘manufactured’ by the con- duct of the police.”
“In applying this exception for the ‘creation’ or ‘manufacturing’ of an exigency by the police, courts require something more than mere proof that fear of detection by the police caused the destruction of evidence. An additional showing is obvi- ously needed because in the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well established exception to the warrant requirement.”
“[W]arrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement.” In this regard, the “exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not 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.”
On the other hand, the exigent circumstances exception would likely not apply “where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted.”
Reasonable foreseeability: The court held that “the police may not rely on an exigency if ‘it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.’ Courts applying this test have invalidated warrantless home searches on the ground 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.” Rejecting such an approach, Justice Alito explained that it would “introduce an unacceptable degree of unpredictability. For example, whenever law enforcement officers knock on the door of premises occupied by a person who may be involved in the drug trade, there is some possibility that the occupants may possess drugs and may seek to destroy them. Under a reasonable foreseeability test, it would be necessary to quantify the degree of predictability that must be reached before the police-created exigency doctrine comes into play.” Such a test “would create unacceptable and unwarranted difficulties for law enforcement officers who must make quick decisions in the field, as well as for judges who would be required to determine after the fact whether the destruction of evidence in response to a knock on the door was reasonably foreseeable based on what the officers knew at the time.”
Accordingly, the Court held that “the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. This holding provides ample protection for the privacy rights that the Amendment protects.”
“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. And, even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may 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.”
In applying its “police-created exigency” rationale to the facts of this case, the Court first pointed out that it was not deciding whether exigent circumstances actually existed in this case. Rather, assuming “for purposes of argument that an exigency existed,” the Court decided only the question: “Under what circumstances do police impermissibly create an exigency?”
Said the Court:
In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment.
Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either, “Police, police, police” or “This is the police.” This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence that might show that the officers either violated the Fourth Amendment or threatened to do so (for example, by announcing that they would break down the door if the occupants did not open the door voluntarily).
[Defendant] claim[ed] that the officers “explained to [the occupants that the officers] were going to make entry inside the apartment,” but the record is clear that the officers did not make this statement until after the exigency arose. As Officer Cobb testified, the officers “knew that there was possibly something that was going to be destroyed inside the apart- ment,” and “[a]t that point, . . . [they] explained . . . [that they] were going to make entry.” Given that this announcement was made after the exigency arose, it could not have created the exigency.
Like the court below, we assume for purposes of argument that an exigency existed. Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.
About the Author: Larry E. Holtz is the C.E.O. and Executive Director of Police Training for Holtz Learning Centers, Ltd. He has served as a Detective Sergeant with the Atlantic City, New Jersey, Police Department; a Deputy Attorney General for the state of New Jersey; and an Assistant County Prosecutor. Mr. Holtz is a certified police trainer and teaches on a regular basis in police training academies in New Jersey and Pennsylvania.
He is a member of the bar in New Jersey, Pennsylvania, and the Dis- trict of Columbia, and is admitted to practice before the federal bar in the District of New Jersey and the Third Circuit.
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