The factual backdrop for this case comes from a Lexington, Kentucky drug operation. Officers observed a drug deal go down and tracked the dealer to an apartment complex. When the police team arrived, they were unsure which of two apartments the suspected dealer had entered, the one on the left or the one on the right. Turns out it was the one on the right. When officers believed they smelled marijuana smoke coming from the apartment on the left, they knocked, very loudly, on the door and yelled out that they were the police.
The officers then believe they heard sound coming from inside the apartment which might be consistent with the occupants moving about, perhaps to destroy evidence. The officers then banged on the door again and announced that they were entering. They made their entry by kicking in the door. They found drugs and drug paraphernalia. Officers would later find the suspected dealer in the apartment on the right.
The Fourth Amendment to the U. S. Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Over the years, an exception has been carved out of the warrant requirement in the event of “exigent circumstances.” A number of exigent circumstances have been recognized where police can act without a warrant. One such exigent circumstance is to prevent the destruction of evidence. Once the exigent circumstances exception had been established, courts devised exceptions to the exception. One of those is that police cannot use the exigent circumstances exception if the police create the exigent circumstance. It is in this context that the Supreme Court took up the case of Kentucky v. King. Full opinion of the Court .
The Kentucky Supreme Court had found that the police created the exigent circumstances and, therefore, the police could not rely on the exigent circumstances exception to the Fourth amendment. The U. S. Supreme Court disagreed in an 8-1 decision. Alito wrote for the majority and Ginsburg dissented. The Court reviewed five different tests used by lower federal courts and state courts for determining when the exception to the exception came into play. They rejected them all.
Kentucky had used a reasonable foreseeability test. If it was reasonably foreseeable that police conduct would create an exigent circumstance, then the exception to the exception would be in play. The U. S. Supreme Court adopted instead a test that the officers must be actively violating or threatening to violate the Fourth Amendment before the exception to the exception takes hold. Little direction was given as to how the test should be applied in practice. It is fair to say, however, that the test adopted by the Supreme Court is more stringent than any of the five it rejected, and creates broader leeway for police to justify warrantless entry into people’s residences.
The result of the case moves the bar slightly more in favor of warrantless entry and search. If that opening had been four inches before, it is maybe 4 ½ inches after yesterday’s decision. It’s significant, but not earth shattering in the broad scheme of things.
What I found interesting was the composition of the majority. When Sotomayor and Kagan were first nominated, many, including myself, predicted that their addition to the Court would result in the Court moving slightly rightward overall and particularly in the area of criminal law. Of course, we don’t know how Stevens and Souter would have ruled in this case, but it is easy to speculate that they, unlike Sotomayor and Kagan, might have joined the dissent, not the majority, on this warrantless search issue.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.