In a concerning 8-1 decision decided May 16, 2011, the U.S. Supreme Court expanded police search powers and greatly reduced the constitutional protections against unreasonable search and seizures.
The Fourth Amendment sets forth that 1) all searches and seizures must be reasonable, and 2) a search warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity.
Typically, before police can conduct a search of a home residence they must obtain a search warrant as individuals have a right to privacy in their own homes. The standard for obtaining a home search warrant is higher than for other arenas. However, in certain situations, officers do not need to obtain search warrants. One situation where police do not need to obtain a search warrant is the “hot pursuit” situation. If police officers are in “hot pursuit” of a suspect, and they have probable cause to arrest the suspect, they can follow the suspect into a private residence. The police officers are not required to stop pursuit at that point and obtain a search or arrest warrant. Another situation where officers do not need to obtain a search warrant is if there are exigent circumstances present such as the need to prevent the destruction of evidence. However, the search warrant exception under the exigent circumstances rule cannot result from police engaging or threatening to engage in conduct that violates the Fourth Amendment. In other words, a warrantless search is not justified when the exigency is a result of the conduct of the police.
Lexington, Kentucky police officers set up a controlled buy outside an apartment complex with a suspected drug dealer. After the controlled buy was finished, officers were radioed to make contact with the suspect. The suspect went into the apartment building and just as the officers followed him in the building, they heard a door shut. There were two doors in the hall, one on the right and one of the left. The officers did not see which door the suspect went through. The officers could smell burnt marijuana coming from the door to the left. The officers knocked on the door to the left, and announced their presence. The officers heard noises from within the apartment, and were concerned that drug related evidence was being destroyed. The officers announced they were coming in and kicked down the door. Inside the apartment were Hollis King, his girlfriend and a guest who was smoking marijuana. The officers also saw marijuana and powder cocaine in plain view. They later found crack cocaine, cash, and drug paraphernalia when they searched the apartment. The suspect they were following was later found in the apartment to the right.
King was charged with various drug trafficking and controlled substance offenses. He sought a motion to suppress evidence from the warrantless search in Fayette County Circuit Court. His motion was denied because the Circuit Court found the officers acted properly by first attempting to gain consensual entry into the apartment, and when there was no response to the knocking coupled with sounds of movement suggesting destruction of evidence inside the apartment, exigent circumstances existed for the warrantless entry. After losing his suppression motion, King entered a conditional plea, reserving his right to appeal, and was sentenced to prison for 11 years. On appeal to the Kentucky Court of Appeals, the Circuit Court’s ruling was upheld on the grounds that the police reasonably believed that evidence would be destroyed, and the police did not create the exigency because they did not purposely act to avoid the warrant requirement.
The Supreme Court of Kentucky reversed the lower courts’ rulings developing a two part test based on the assumption that exigent circumstances existed. The Supreme Court of Kentucky did not provide insight or decision as to whether the sounds of people moving inside an apartment was enough for officers to reasonably believe that evidence was being destroyed, but simply questioned whether or not the sounds were sufficient.
The first part of the test employed by the Supreme Court of Kentucky was that police cannot purposely and in bad faith create exigent circumstances in order to avoid the warrant requirement. The second part of the test was that even if the police were not acting in bad faith, they cannot rely on exigent circumstances that would plausibly result from police actions. In the King case, the Supreme Court of Kentucky determined that the police were not acting in bad faith, but the warrantless search was not justified because the exigent circumstances (the believed destruction of evidence) could be rationally predicted to be a result of the police knocking and announcing their presence. Therefore, the exigent circumstances were an indirect result of police conduct. As the police created the exigent circumstances, they violated King’s constitutional rights against unreasonable searches and seizures, and the Supreme Court of Kentucky ordered the conviction overturned.
The U.S. Supreme Court disagreed and reversed the ruling by the Supreme Court of Kentucky finding that the potential destruction of evidence was an exigent circumstance, and the officers did not violate or threaten to violate the Fourth Amendment prior to the exigency. Thus, the warrantless search was justified because there were exigent circumstances that were not the result of conduct by the police officers.
King argued that the officers created the exigent circumstances in this situation as the officers’ conduct would lead a reasonable person to believe that entry was imminent and inevitable, and therefore, the warrantless search was not justified. In the majority opinion, the U.S. Supreme Court got caught up in the specific details of King’s argument and fails to consider his actual point. The Court addressed the officers announcing their presence and the forcefulness of their knocks as not being enough to believe entry was imminent and inevitable. Then the Court sets forth that the officers did not enter until there was an exigent circumstance which was the prevention of the imminent destruction of evidence. The Court glosses over the fact that the officers came to the destruction of evidence argument based on the fact that people were moving around inside the apartment and nobody answered the door. This is absurd as King and the people inside the apartment were in no way required to respond to the police announcing their presence, much less answer the door. In addition, the Court does not address the fact that King’s argument that police entry seemed imminent and inevitable was entirely reasonable as it did actually occur when the officers kicked down the door.
Justice Ginsburg was the sole voice of reason in this opinion as the only dissenter from the Court’s decision. In her dissent, Justice Ginsburg expresses alarm and concern that this decision will make it possible for police to now avoid obtaining search warrants in drug cases. She warned of the broadening of what constitutes “exigent circumstances.” Siding with the Supreme Court of Kentucky, she was not persuaded that the exigent circumstances were not actually created by the officers’ behavior, arguing that the urgency must exist at the time the police arrive on scene, and not under circumstances that were their own doing. In addition, she argued that a warrantless search is the exception, and the standard for a warrantless search is a high burden for police. Individuals have a higher expectation of privacy in their own homes, and absent the rare exceptions to obtaining a search warrant, a neutral, detached decision maker should review police entry and search into the place individuals are supposed to be the most secure. As a result of the Court’s decision the powers and protections afforded by of the Fourth Amendment have been severely compromised.