Supreme Court Expands Warrantless Entry For Police (Kentucky v. King)
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.
21 Responses to “Supreme Court Expands Warrantless Entry For Police (Kentucky v. King)”
Having taken the side against the police the last time, I’m going to side with the police on this one.
The legal definitions and precedents are mostly over my head, but to me it seems reasonable that if the police have a legitimate reason to suspect that something illegal is happening in the apartment and that evidence may be being destroyed, they should be allowed to enter the apartment forcefully. It think they had reason to suspect this for a few reasons:
1) They saw a drug dealer run into 1 of 2 apartments.
2)Upon knocking, they heard people in the apartment who weren’t answering the door, making it more likely that the drug dealer was in the apartment.
3) They heard what sounded like destruction of evidence, which further increases the likelihood that the drug dealer was in the apartment. And I would not consider the act of knocking to be instigating the destruction of evidence.
Now, it turns out he was not, but to “suspect” something is not the same as having a sure knowledge, therefore just because they were wrong does not mean they did not have good reason to suspect the drug dealer was in the apartment. Even though they were ultimately incorrect, given the circumstances I think they had a good reason to suspect illegal activity in the apartment, and that time was of the essence to prevent destruction of evidence.
i just looked at the Kentucky pot laws, and I am in awe of the expertise of these arresting officers. Not only did they identify the smell of pot, but they also could judge “from the sound” that evidence was being destroyed. How did they know that the evidence was over 8 ounces of weight? that is the amount that makes the offense into a felony from a misdemeanor.
a good friend is a cop and he has admitted “off the record” that some cops use the “i smell pot” argument to justify searches. similarly, traffic cops will cite drivers “for illegal lane changes” as a way to inspect who they suspect.
sorry, but the legal subtleties here are just too far from reality, the door has been pried open yet another time.
is anyone in favor of cops breaking down doors to secure misdemeanor charges???
Okay, so I suggest the Dog Exception. A Pot sniffing dog accompanied by a flush listening dog could give cops the cover they need to bust the door. Of course the eight ounce rule does require a higher order of flush listening dog.
As someone who respects the work done by law enforcement generally, there is a part of me that hates to say this. But,in my experience both assisting police and defending those accused of crimes, Hemm is right about pretext stops and pretext searches.
Experienced law enforcement officers know exactly what to say to justify a stop or a warrantless search. The examples Hemm gives are unfortunately too typical of how police in the real world push the constitutional envelope.
While this case doesn’t open those opportunities for abuse much farther than they were already opened, there is an ivory tower, lack-of-contact-with-reality quality to many Supreme Court cases on the subject of police misconduct.
One last thing, then I’ll shut up for a while. Pretext stops and pretext searches are also among the core tactics used in racial profiling. It is one of, though not the only, reason I object as strongly as I do to laws like Arizona’s “Papers Please” law…and why I do not take seriously those who claim it will not lead to racial profiling.
Dave,
The fact that a drug dealer ran into one of the two apartments doesn’t matter to you at all? Just asking because you didn’t mention it and it seems like a pretty critical piece of the story to me. It’s not like the police were just walking around sniffing for pot.
They didn’t break the door down to secure a misdemeanor charge. They suspected, and had good reason to suspect, that a drug dealer was likely to be in the house.
Sure, “I smell pot” is an excuse that can be abused and I’m sure it is. If there wasn’t actually any pot in the apartment, and therefore it would have been impossible for the officers to smell it, then you’d have a point there. But, with the facts as they are, it’s reasonable to assume that they actually did smell pot, and this, when combined with the other relevant facts, indicates that their suspicion was warranted, even if ultimately incorrect.
Elijah,
I recognize that officers may abuse the latitude that is often given to them. I have said in the past that I often give the benefit of the doubt (when it exists) to police officers. I think this is sometimes necessary because otherwise police officers would be compelled to prove guilt before being allowed to take any action, which is an impossibility. This is why the distinction between “suspect” and “know” is very important to me. But, I’m aware that the benefit of the doubt can be abused. I’m not opposed to an attempt to curtail that problem without handcuffing (pun intended) police officers.
However, I don’t think that’s the issue in this case, because (a) there was pot in the house, apparently in enough quantity and exposure to necessitate hasty concealment, and (b) there were other reasons to suspect illegal activity. This is not a case of “I smelled pot and therefore decided to break in.”
“Hot pursuit” and error?
Note that the pot smell and the sounds may or may not be held to be “reasonable cause.”
Adelinesdad,
I agree with you wholeheartedly that the facts of this particular case invite this kind of decision. The problem with the law is that once you provide that leeway based on a “strong facts” case, you open other doors. That the Court chose to go the route they did and set a national standard for the exception to the exception rule is ok and consistent with the Court’s power in deciding cases. But it’s a bit unfortunate that they chose this case for that purpose.
Call me old-fashioned. I like the 4th amendment just fine and don’t appreciate fools on the USSC screwing around with it. I guess core principles like privacy and freedom aren’t really all that important anymore if they can be waived because some cop thinks he caught a whiff of pot. Welcome to the bizarro century.
I would agree with pretty much everything that has been said above. I had to drag out my Criminal Procedure book, however, because I recall a quote from Alan Dershowitz that pretty much sums up the system, where he says that nobody cares about justice.
Dershowitz’s book, The Best Defense, has a list, in the introduction, of 13 maxims true about the Criminal Justice System. The rules note that all lawyer-participants, i.e. prosecutors, judges, and defense lawyers, in the system are aware, and believe that the vast majority of defendants are guilty, that they cannot always be convicted without violating the constitution, that law enforcement will lie to ensure that a defendant is convicted, that judges at all levels well know this, that prosecutors and judges would not allow the conviction of someone they knew was innocent, excepting the likes of drug dealers, career criminals, potential informers, or organized crime, and that few actually believe, or care, that defendants’ rights have been violated.
These maxims seem to be true. Granted, I’ve not been too involved in the criminal justice system, but I did intern at a District Attorney’s Office for two summers. Quite honestly, between that experience, and law professors from all parts of the spectrum of the criminal justice system, I can say that, in my experience, these all tend to be true.
That just isn’t what this decision says. In fact it reaffirms that if the apartment had answered the door and told the cops to bugger off the police would of needed a warrant. Smoke could be billowing out Cheech and Chong style and cops need a warrant but when someone refuses to answer, in combination with the pursuit, the smell of pot, and sounds of activity coming from the residence then ………….
Our willingness as a whole to accept giving up 4th Amendment protections is a sad commentary of what we have become – subjects of a police state, where the assumption is now guilt too often, and you need to prove your innocence.
Indefatigably,
In looking at your avatar, it is difficult to tell whether the view of the ship is fore or aft. I point this out only because I am trying to figure out whether it is listing left or right.
tidbits
Are there any cases like this that don’t involve drugs?
I see this decline as something that happens when the justice system tries to do something it was never made to do. Most all other laws are there to protect a victim, so you automatically have a witness of some sort, and at least some people who are concerned about the crime. With victimless crimes, the police are no longer just responding to a call, they’re supposed to find the criminal. That’s a vital difference between drug law, and almost all other kinds of law.
ProfE,
You’re correct that many of these “exigent circumstance” cases involve drugs, but not all. The most common of exigent circumstances involves automobile searches because of the opportunity to drive off with undetected evidence (guns, drugs, loot from a burglary, etc). Vehicle searches even have their own special treatment as part of the exigent circunstances doctrine, and include the added exigent circumstance of “officer safety”.
The doctrine is also used in gambling/bookmaking cases, though you might argue that those are also victimless crimes. Any crime that requires record keeping can be subject to destruction of evidence and therefore the exigent circumstances exeption to the warrant requirement.
But, having said that, probalby 90% plus end up being drug cases.
Thanks ES. I know that this case will eventually be used to push the boundaries again. I already know of cases where people have been investigated, and even raided, for their political stands. It’s just so rare to see a right restored, once it’s been lost.
EEllis, as I said, I prefer the 4th in it’s original incarnation.
[...] Supreme Court Expands Warrantless Entry For Police (Kentucky v. King) | The Moderate Voice Quote:"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. [...]
[...] Supreme Court Expands Warrantless Entry For Police (Kentucky v. King) (themoderatevoice.com) [...]
Hi guys,
Although everyone made valid points above, Im just wondering if you guys actually read the full opinion stating the facts of the case. When I first heard of the case through various media outlets i myself was skeptical of the 8-1 decision. As i researched the facts of the case however, i quickly changed tune. First off, i read numerous times, and incorrectly i might add, that the USSC disagreed with all of Kentucky’s courts. The USSC in fact, only disagreed with the the Kentucky Supreme Court and actually agreed with the trial and appeals court. Having said that, there is a reason it was an 8-1 decision. The narrow scope of the issue is simply did the police create the exigent circumstance or not. Only the Kentucky Supreme Court felt they did, yet all others, including the USSC said no. In terms of the law i agree with majority. It sucks for King and Co bc they were in their “castle” but at the end of the day they were still breaking the law. I mean this wouldnt even be an issue if they were just eating lunch inside when the police came in. In fact, they’d probably have a civil suit against the govt for damages!!! But because they obviously werebreaking the law, they have to use their rights now to get evidence suppressed. Ultimately, I compare this example to the many unfortunate examples people find themselves in all the time by simply being at the wrong place at the wrong time. How about the people that of sitting at a red light and a guys smashes into the back of your car. Unfortuntely, now you are stuck with the undesirable results: exchange of paper work, possible injury, loss of time, etc. Or how about random driving checkpoints that take up time and make people uncomfortable answering questions. Obviously if innocent, these intrusions are still inconvient, yet if you were obviously guilty of something it would be a different story. There are plenty of situations which plain out suck for innocent citizens, theres no doubt about it, yet honestly all of them have to deal with it and adjust accordingly. The difference is at the end of the day some major inconviences are just inconviences, yet if your still guilty of an illegal activity (as was King and company), a major invoncencince gets transformed into you going to jail. A big theme of Criminal Justice is that your supposed to use your protections as a shield, not a sword.