The Supreme Court issued its decision today in Kentucky v. King, 09-1272, ruling that police officers can enter a home without a warrant when they have reason to believe that evidence is being destroyed inside, even if their actions are the reason for the suspected destruction of the evidence.
The case arose from a “buy-bust” operation in Lexington, Kentucky. Undercover cops watched a suspected drug dealer buy cocaine and then head for an apartment building. Officers followed the dealer into a breezeway flanked by entrances to different apartment units, but they lost sight of him. The officers heard a door close and smelled marijuana. They approached the door with the suspicious smells and started banging on the door “as loud as they could” and yelling “police.” Needless to say, the people inside the apartment reacted, and the officers heard unspecified “noises” and people moving stuff around. According to them, they suspected that evidence was being destroyed. So they kicked the door in. Inside they found marijuana and cocaine. The case was before the Supreme Court on review of the Kentucky Supreme Court’s ruling that the drugs should have been suppressed because the entry was illegal. (Coincidentally, the guy they were originally trying to bust was in a different apartment nearby.)
In general, under the Fourth Amendment, the police must have a warrant before entering a home. There are two basic exceptions to this rule: consent of the home’s occupants, or exigent circumstances, such as hot pursuit of a fleeing felon or imminent destruction of evidence.
The Kentucky Supreme Court ruled that police may not rely on the exigent circumstances exception to the warrant requirement if they “deliberately create the exigent circumstances with the bad faith intent to avoid the warrant requirement” or “if it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” In King, the Kentucky Supreme Court held that the search was not justified by the exigent circumstances exception because it was reasonably foreseeable that the occupants of the apartment would destroy evidence in response to the police banging on their door and shouting “police.”
The Supreme Court ruled that it was reasonable for the officers to kick in the door without a warrant because they “did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment,” by banging “as loud as they could” on the door and shouting “police.” (Nevermind the fact that any reasonable human would be likely to interpret this not as a request to come inside, but rather a threat that police entry was imminent.)
Justice Alito, writing for the 8-1 majority, thought that the occupants could have protected their constitutional rights by either remaining quiet inside the apartment (so as not to give the impression that evidence was being destroyed) or by coming to the door and informing the screaming officers that they were not welcome to come inside. The Court wrote, “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.”
It seems to be a results-based approach to this particular question (i.e. because the occupants had drugs, the Court looked for a way to justify the officers’ conduct). One wonders what the result would have been if the “noises” and shuffling inside had been someone who just got out of the shower (or perhaps a couple involved in an intimate encounter) trying to put clothes on before the police break down the door.
In any event, the decision significantly erodes the “police-created exigency” exception that many lower courts had articulated to prevent police officers from manufacturing an exigency to justify a warrantless entry. See, e.g., United States v. Chambers, 395 F. 3d 563, 566 (6th Cir. 2005) (“[F]or a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves”); United States v. Gould, 364 F. 3d 578, 590 (5th Cir. 2004) (“[A]lthough exigent circumstances may justify a warrantless probable cause entry into the home, they will not do so if the exigent circumstances were manufactured by the agents”)
Justice Ginsberg wrote a forceful dissent, criticizing the 8-1 majority’s “reduction of the Fourth Amendment’s force.” She wrote:
The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.
The decision is available in PDF format here.