What is a Police-Created Exigency?
by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail: jcall@radford.edu
Although the U.S. Supreme Court has generally interpreted the Fourth Amendment to the Constitution as creating a preference for warrants when conducting searches and seizures, the Court recognizes many exceptions to this warrant requirement. One of those exceptions is that if a situation exists that would result in the removal or destruction of evidence if the police delayed their search in order to obtain a search warrant, then a warrant is not needed. This is typically referred to as the exigent circumstances exception. (The destruction or removal of evidence is not the only exigent circumstance that may justify action by the police without a warrant, but it may be the most important or frequent one).
On May 16, 2011, the Supreme Court decided Kentucky v. King, an important case dealing with the exigent circumstances exception. This article will discuss the facts at issue in King, examine what the Court decided in King, point out what the Court did NOT decide in King, explain why King is a pro-police case, and present an argument that the police are often better off not doing what they did in King.
THE FACTS IN KING
The Lexington, Kentucky, police set up a controlled buy of cocaine near an apartment complex. An officer observed the drug deal take place and radioed other officers to move in on the drug dealer, who was about to enter one of the buildings in the apartment complex. As they entered the breezeway of the building which the suspect had entered, they heard a door close, but they did not see which door it was. There were two apartments that faced each other in the breezeway. As the officers approached the apartments, they smelled a strong odor of marijuana coming from the apartment on their left. (The officer who observed the drug deal take place had radioed the officers that the suspect had entered the apartment on the right, but the officers approaching the apartment building had already left their vehicles and did not hear this report).
The officers banged loudly on the door to the apartment on the left and announced that they were the police. As soon as they banged on the door, they heard people moving inside. The officers concluded that the occupants were taking action to destroy evidence, kicked in the door, entered the apartment, and observed three people in the front room. A protective sweep of the apartment discovered marijuana and powder cocaine in plain view. Eventually, the officers also entered the apartment on the right, where they found the drug dealer they were seeking originally.
WHAT THE COURT DECIDED
The Court began its analysis in King by pointing out its long-standing recognition that exigent circumstances justify warrantless entry and search of a home. It noted its recent decision in Brigham City v. Stuart,1 recognizing an emergency aid exception that permits the police to “enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” It is also noted the hot pursuit exception, that permits the police to pursue a fleeing suspect into a home without a warrant.2
However, the exigency most relevant to the present case is the need “to prevent the imminent destruction of evidence.” Although none of the three cases that the Court cites in support of this type of exigency was decided on the basis of whether the destruction of evidence was imminent, there can be little doubt that the Supreme Court recognizes the imminent destruction of evidence as an exigency sufficient to dispense with a warrant requirement.
The issue in King is one that has received considerable attention from lower courts over the years. The initial question is whether the police may always rely upon exigencies created by their own actions. However, the answer to that question is clearly that they may not rely on some exigencies that they create. For example, as one commentator points out,3 the police may not set fire to a house and then enter without a warrant because of a need to rescue any people who may be inside. The more precise question, then, is when may the police not rely on an exigency they have created?
The answer provided to that question by King (in an 8-1 decision, with the Court’s opinion written by Justice Alito) is that the police may not rely on an exigency created by any action by them that violates the Fourth Amendment or constitutes a threat by the police to do something in violation of the Fourth Amendment.
In this case, King argued that the police had probable cause to obtain a search warrant to search his apartment, and there was no reason not to delay the search until a warrant was obtained. (Even though King’s apartment was not the apartment into which the suspect had fled, the marijuana odor coming from King’s apartment would have made it reasonable to conclude that it was the apartment into which the drug dealer had fled. Probably the marijuana odor alone would have provided probable cause for a search warrant). Prior to the police banging on King’s apartment door, none of the apartment’s occupants would have had any reason to think a search of the apartment was imminent.
In determining the appropriate rule for police-created exigencies, the Court rejected several tests that had been created by lower courts. One test was that the police cannot deliberately create an exigency with intent to circumvent the warrant requirement.4 The Court rejected this rule because it violates the Court’s general rule that the motives of a police officer are irrelevant in determining Fourth Amendment violations.
Another lower court test was whether it was reasonably foreseeable to the police that their actions would create an exigency.5 The Court rejected this test because it “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.”
A third test was whether the police had probable cause and time to obtain a warrant.6 The Court rejected this rule because it would impose a requirement on the police to seek a warrant promptly in instances where they have legitimate reasons for delaying in seeking a warrant. (The Court never explains why this rule imposes a requirement of promptness on the police. The rule could be interpreted to require that the police search only with a warrant once they have probable cause and time to obtain one, whether they conduct that search immediately or later).
The Court rejected this test because the police will often have good reasons for not seeking a warrant as soon as probable cause is acquired. The Court cited the example of a situation where the police might choose to have a conversation with the occupants of a place they have developed probable cause to search, on the possibility that the conversation might “obviate the need to apply for and execute a warrant.” The Court cited other examples to support its conclusion that requiring the police to seek a search warrant once probable cause to search exists would undermine “legitimate law enforcement strategies.”
The Court also rejected the test established by some lower courts that the police will be found to have created the exigency on which they acted if they proceeded in a manner prior to the search that is considered “contrary to standard or good law enforcement practices (or to the policies or practices of their jurisdictions).”7 This test was rejected for its failure “to provide clear guidance for law enforcement officers” and because it would improperly inject the courts into matters that are more appropriately the province of law enforcement agencies.
King, perhaps suspecting that the Court would not find merit in any of the tests recognized by lower courts, proposed his own test: The police may not act without a warrant based on an exigency created by their own conduct where that conduct “would cause a reasonable person to believe that entry is imminent and inevitable.” This test was rejected as “nebulous and impractical” because it would put the police in a situation where they would be unable to determine “how loudly they may announce their presence or how forcefully they may knock on a door without running afoul of the police-created exigency rule.” It would also be a test that is “nearly impossible” for courts to apply to real life situations.
WHAT THE COURT DID NOT DECIDE IN KING
It is important to understand what was not decided in King. First, as mentioned earlier, the Court has recognized a hot pursuit exception to the warrant requirement that permits the police to enter a home without a warrant to find and arrest a suspect that they have pursued from the scene of a crime. The Kentucky Supreme Court, the court from which this case came to the U.S. Supreme Court, addressed the hot pursuit issue in its decision. It concluded that the hot pursuit exception did not apply in this case because that exception requires that the person being pursued by the police be aware of the police pursuit. Otherwise, there is no reason to think that the person being pursued is likely to flee the home while a warrant is sought.
The U.S. Supreme Court has never directly addressed the issue of whether the person being pursued must be aware of the pursuit in order for the hot pursuit exception to apply.8 While this requirement seems logical, the Supreme Court did not address the hot pursuit issue in its resolution of the case.
The second thing the Court did not decide in King was whether there was in fact an exigent circumstance that justified police entry of King’s apartment without a warrant. The Kentucky Supreme Court had assumed for the purposes of argument in the case that exigent circumstances existed. Since that issue had not been addressed by the lower court and had not been argued by the parties in the case, the Supreme Court did not address it. Therefore, law enforcement officers should not use the specific facts of this case for determining whether an exigent circumstance exists in a case that they are handling.
WHY KING IS A PRO-POLICE DECISION
The rule that the police may rely on an exigency to make a warrantless search unless the police violated the 4th Amendment or threatened to do so is a very police-friendly rule. All of the rules established by the lower courts that were rejected by the Court in King created more limitations on when the police may act on an exigency stemming from their own actions than the King rule creates. The King rule makes it irrelevant that the police may have hoped that their actions would create an exigency. It also does not require them to refrain from actions that they should realize are likely to create an exigency. The result is an even bigger “hole” in the requirement that the police must ordinarily search or seize with a warrant.
WHY THE POLICE MAY BE BETTER ADVISED TO ACT WITH A WARRANT
Let’s assume that in King, the officers who knocked on King’s door realized that they did have time to get a warrant and also suspected that by knocking on the door it was likely that the occupants would do something in response to the knock that could reasonably be interpreted by the police as an exigency. Under the King rule, the police do not need a warrant to enter and search, but there are at least a couple of reasons why it nevertheless might be wiser for the police to depart the premises and obtain a search warrant.
First, there is no assurance that the occupants will do anything that may be properly interpreted as creating an exigency. (Remember, in King the Court did not address the question of whether hearing the occupants of a residence scurrying about constituted exigent circumstances. Whether it did or not is a very debatable question).
The occupants may simply choose to ignore the knock and hope that the police will go away. The Court itself noted in King that if “the police knock on a door but the occupants choose not to respond or to speak, ‘the investigation will have reached a conspicuously low point,’ and the occupants ‘will have the kind of warning that even the most elaborate security system cannot provide.’”
Of course, this statement assumes that the occupants will know that it is the police at the door. The Court does require the police to knock and announce their purpose before entering a home, but I am aware of no decision from the Court that requires the police to identify themselves every time they knock on someone’s door. If the police knock and do not identify themselves, there is every reason to think the occupants will respond to the knock. Therefore, this risk to the police may be more theoretical than real.
The second reason why the police might be well-advised to obtain a warrant stems from the Court’s 1984 decision in U.S. v. Leon.9 In that case, the Court held that evidence obtained when the police properly executed a search warrant that had been issued improperly because probable cause to search was lacking is nevertheless admissible at trial (because it was the magistrate who erred, not the police). However, at the present time, the rule is that if the police search without a warrant (but in circumstances where probable cause is still necessary, such as a search of an automobile that is not on private property) and it is later determined that probable cause to search was lacking, the fruits of the search are not admissible at trial.10
The result of the Leon decision is that it seems advisable for the police to obtain a warrant in all instances where there is time to obtain one, even though the law may not require a warrant. If a judicial officer makes a mistake in concluding that probable cause exists, the evidence obtained in executing the warrant will be admissible; if the officer searches without a warrant and makes the same mistake about probable cause, the evidence will not be admissible. Where the police search without a warrant because exigent circumstances exist, they still need probable cause to think that contraband or evidence of a crime will be found in the place they search.
[1] 547 U.S. 398 (2006).
[2] U.S. v. Santana, 427 U.S. 38 (1976).
[3] Orin Kerr, “Choosing the rule for police-created exigencies in Kentucky v. King,” SCOTUSBLOG, http://www.scotusblog.com/?p=119645, accessed May 17, 2011.
[4][4] U.S. v. Chambers, 395 F.3d 563 (6th Cir., 2005); U.S. v. Socey, 846 F.2d 1439 (D.C. Cir., 1988); U.S. v. Rengifo, 858 F.2d 800 (1st Cir., 1988).
[5] See, e.g., U.S. v. Mowatt, 513 F.3d 395 (4th Cir., 2008).
[6] See, e.g., U.S. v. Chambers, 395 F.3d 563 (6th Cir., 2005).
[7] Quoting U.S. v. Gould, 364 F.3d 578 (5th Cir., 2004)(en banc).
[8] Whitebread and Slobogin, Criminal Procedure: An Analysis of Cases and Concepts (New York: Foundation Press, 5th edition, 2008), pp. 225-26.
[9] 468 U.S. 897.
[10] The Court may very well be on the verge of changing this situation. There are hints in a couple of recent Supreme Court decisions that the Court may soon hold that any honest, reasonable mistake in applying the law – by magistrates or law enforcement officers – will not prevent the admission of evidence obtained as a result of the error. See, for example, the exchange of views by Lee Harrell and Jack Call in a discussion of Herring v. U.S., 129 S. Ct. 695 (2009) in the Virginia Police Legal Bulletin, Vol. 4, No. 1 (December 2009).
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.