The U.S. Supreme Court this week ruled in a case styled Kentucky v. King that asked, when is a warrantless entry based on an exigent circumstance actually an emergency created by police?
Here are the case basics: Undercover police bought cocaine off a guy outside an apartment complex in Lexington. The guy then went into an apartment. The undercover cops called for police to make an arrest, but those officers weren’t sure which of two apartments the suspect had entered. At one door they smelled pot burning inside, and decided that was the place; they knocked, demanded entry, and when no one answered – and when they thought they heard something inside that sounded like a person destroying evidence (whatever the hell that means. At a suppression hearing, the arresting officer testified that he couldn’t tell what it was that he was hearing, but that the sound was “possibly consistent” with the destruction of evidence) – they broke in. Turns out it was the wrong apartment; nonetheless, inside they found Hollis Deshaun King sitting next to a man smoking pot, some coke on a counter and, after a thorough search, additional drugs and paraphernalia, so they went ahead and arrested him. Later on, police found the apartment they’d been looking for in the first place and arrested that dude too.
King argued that the warrantless entry was unlawful because there was no reason to enter the apartment without a warrant. If the police smelled pot they could go get a warrant and come back. Hearing people moving around inside was hardly an emergency for the purposes of pushing aside the provisions of the Fourth Amendment. “With at least equal probability, the unremarkable sound of ‘people moving around’ suggested that someone was attempting to comply with the officers’ demand to be let inside. There was no exigency. The police were not excused from obtaining a warrant,” lawyers wrote in their brief to the high court.
Although a Kentucky appeals court considered the entry and search lawful, the Kentucky Supremes reversed: “While probable cause existed for police to obtain a warrant to enter the apartment occupied by Mr. King, police did not have proper exigent circumstances to justify a warrantless entry,” the court wrote. “Police were not in hot pursuit of a fleeing suspect. Further, the entry was not justified by imminent destruction of evidence. The odor of marijuana alone did not provide a justification, and any exigency arising from the sounds of movement inside the apartment was created by police, and therefore cannot be relied upon as justification.”
And so it was – until the state appealed to the Supremes.
In their opinion, written by Justice Samuel Alito and released May 16, the court, by an 8-1 vote, reversed the Kentucky high court and sent the case back for further vetting. (Justice Ruth Bader Ginsburg was the lone dissenter.) According to the court, “The conduct of the police prior to their entry into the apartment was entirely lawful,” Alito wrote. “They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.” In other words, hearing what a cop thought might be the sounds of evidence being destroyed was plenty justification to bust down the door without a warrant. “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 detective by the police caused the destruction of evidence. An additional showing is obviously needed because, as the Eighth Circuit [Court of Appeals] has recognized, ‘in some sense the police always create the exigent circumstances,” he continued. “That is to say, 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.” Therefore, he wrote, “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.”
And we wouldn’t want anything – like a fundamental Constitutional protection – to get in the way of finding drug suspects, now would we? (Or, rather, from preventing them from possibly flushing evidence down the drain because that would make it harder to lock ’em up – even though the end result, that the drugs are off the street, is the same.)
In her dissent, Ginsburg disagreed with the majority, arguing that it necessarily weakens Fourth Amendment protections: “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” she wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, and then break the door down, nevermind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.” The court ignored both the meaning of obtaining a warrant and of giving heightened scrutiny to searches and seizures inside a home. “That heavy burden has not been carried here. There was very little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrates authorization,” she wrote. “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”
Good question.
This article appears in May 13 • 2011.