Police Creating The Exigent Circumstance: A Preview of Kentucky v. King

On January 12, 2011, the court will hear oral arguments in Kentucky v. King, No. 09-1272. The case will decide the very interesting question of whether the exigent circumstances exception to the warrant requirement applies when police officers, not suspects, create the exigency. Under the Fourth Amendment, police may not conduct a warrantless search of a private home unless there exists 1) probable cause and 2) exigent circumstances. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002). Exigent circumstances, in a nutshell, are circumstances in which someone could potentially be harmed or someone could potentially destroy evidence. This could occur when officers hear a woman screaming and must enter the home to prevent injury to the woman or where, as in King, officers heard what they thought was the sound of evidence being destroyed after knocking and announcing themselves.

Kentucky v. King is an appeal from Kentucky Supreme Court case, King v. Commonwealth, 302 S.W.3d 649 (Ken. 2010). In King, officers were facilitating an undercover drug bust. Id. at 651. An informant purchased crack cocaine from a drug dealer, while officers awaited nearby to arrest the dealer. Id. After the purchase was made, the dealer walked into a breezeway of an apartment building and disappeared into one of two apartments in the breezeway. Id. Officers, in pursuit of the drug dealer, thereafter entered the breezeway. Id. The officers did not know which of the two apartments the dealer had entered. However, they smelled burning marijuana in the breezeway, and thinking that the scent had been released by opening the door to an apartment, the officers knocked on the door of "apartment A," where the marijuana scent seemed to be emanating from, and announced "police." Id. The officers then heard movement inside the apartment, and thinking that the occupant was destroying evidence, they made a forced entry into the apartment. King, 302 S.W.3d at 651-52. In the apartment, they discovered three individuals smoking marijuana with a large quantity of cocaine and drug dealing paraphilia. Id. at 652. But they did not discover the drug dealer, who was later located in "apartment B." Id. The three individuals were arrested and later convicted on drug charges. Id.

One of the co-defendants filed a motion to suppress the drug evidence, arguing that the warrantless entry into the apartment did not fall into the exigent circumstances exception to the warrant requirement because the officers created the exigency themselves. Id. The trial court denied the motion, and its decision was appealed and later affirmed by the appellate court. Id. The Kentucky Supreme Court, however, reversed the appellate court's decision, reasoning that knocking on the door and announcing "police" prompted the defendants to make the movement, whereas the defendants would have had no motivation to do so absent the knock and announce. King, 302 S.W.3d at 656.

After a survey of tests formulated by federal circuit courts, the Kentucky court adopted a two-part test to decide whether an exigency is officer-created:

First, courts must determine "whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement." Gould, 364 F.3d at 590. If so, then police cannot rely on the resulting exigency. Second, where police have not acted in bad faith, courts must determine "[w]hether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry." Mann, 161 S.W.3d at 834. If so, then the exigent circumstances cannot justify the warrantless entry. Id.

Applying this test, the court found that the officers who entered the breezeway were not acting with bad faith when they knocked and announced on apartment A because they did not know which apartment defendant had gone into. Id. But on the second prong, the court held that it was reasonably foreseeable to the officers that knocking and announcing would prompt the occupants of the apartment to make the movement, and therefore the movement could not justify the warrantless entry that followed. Id.

The U.S. Supreme court granted certiorari on the issue of whether an officer-created exigency is a valid exigency that would allow a warrantless entry. The Court probably granted cert to resolve the competing tests of Circuit and state appellate courts below. The King test, which draws elements from the competing Circuit tests, seems perfectly reasonable and in line with established Fourth Amendment case law protecting the sanctity of the home from the intrusion of the government. I think the liberal justices will vote to affirm, but it will be interesting to see how the "law and order" conservative justices will vote. In reaching their vote, they will need to decide whether the sanctity of the home outweighs the needs of police to do perform their duties. For the sake of preserving what little is left of Fourth Amendment protections, I am hopeful that at least one conservative justice will decide that police cannot create the exigency that justifies busting someone's front door down.