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Creating an emergency

Just a normal day at the projects for the Lexington, Ky. police, conducting drug buy/busts.  One of the dealers smelled something fishy, though, and took off running after selling some crack to an informant.  The police followed him into the apartment building, lost sight of him, but then heard a door slam at the end of a hallway.  There were only two apartments the guy could have gone into, and, smelling a strong odor of burning marijuana coming from one, the police decided to go with the odds and knocked on the door of that one and announced themselves.  There was no response; instead, they heard things being moved around, which "based upon their training and experience, the officers recognized to be consistent with the sounds of destruction of physical evidence."  So they barged in.

Wrong apartment.

 Well, not entirely wrong; turns out that the owner had his own stash of marijuana and cocaine.  (And apparently hadn't done anything to destroy it; it was in "plain view.")  And so last week the US Supreme Court heard oral argument in Kentucky v. King in an attempt to figure out whether the Kentucky Supreme Court had been right to suppress the evidence.

The cops had relied on the "exigent circumstances" exception to the warrant requirement, but King had prevailed on the basis of prior law which holds that the cops can't use that exception if they're the ones who've created the exigency as, in this case, by knocking on the door.  One of the problems with this rule is the lack of uniformity among the lower courts in how it's applied.  At least five separate tests have been enunciated by the eleven Federal circuit courts, and the Kentucky court's test was actually a hybrid of two others:  the court had held that it must first be determined whether the officers were acting in good faith, or had instead deliberately created the emergency, and second, whether it was reasonably foreseeable that the the police tactics would create the exigent circumstances.  The court found that the police acted in good faith, but that police could reasonably expect someone to try to destroy drugs if the police knocked and announced their presence outside the door.

That was too much for the US Solicitor General, arguing in support of the state, who suggested yet another test:  as long as the actions of the police were lawful, there was no Fourth Amendment violation.  Knocking on a door isn't unlawful conduct, ergo, the police hadn't created the exigent circumstances.

That's probably too much for the court to swallow; as Kennedy put it, that position would mean "the police can do anything that's lawful, even if the purpose of doing so is to create exigent circumstances."  Scalia bailed out the SG by noting that the knock would have predicated on a reasonable belief that there was indeed contraband inside, such as by detecting the odor of it; "You don't know that they're destroying evidence unless you have reason to believe that there is contraband inside."  And Alito suggested that there was indeed a bad faith component in the test, such as "having no reason for knocking on the door other than to create exigent circumstances." 

One of the problems with cases in the Supreme Court is that the Court would prefer to deal with broad issues of law, and sometimes the messy facts of the case get in the way of doing that.  King's lawyer got embroiled in a discussion of how hard the police had banged on the door, and whether they'd announced that they were going to break down the door if it wasn't opened.  Roberts brushed this aside, saying that was for "later on" if the case gets reversed.  (Reversal would not end the case, but simply result in a remand for the Kentucky Supreme Court to determine the factual questions, including whether the evidence showed that there really were exigent circumstances; it had assumed that without deciding it when it ruled that, even if there was an exigency, the police had created it.)  The threat of entry still served as the basis for King's attorney to argue that the appropriate test was whether the police acted unreasonably, rather than unlawfully, but when pressed by Roberts, she couldn't come up with an example of conduct that would be unreasonable but would not be unlawful.  And Scalia probably foretold the upcoming result when he noted that, even applying the defense test, reversal would be required:

The problem is that as reasonable as the test is, it's not the test that was used by the Court below, and you want us to affirm the decision below, which simply said if the exigent circumstances are -- are the consequence of the police action, whatever the police action was -- lawful, reasonable, whatever -- the evidence has to be excluded.

Now, how can we affirm that decision as you want us to do, even -- even applying your test?

Although I think the result is foreordained, the opinion's going to be interesting.  Barely touched on in oral argument was relatively new law enforcement technique:  the "knock and talk," where police officers will go through an apartment building in "high crime"  (i.e., black) neighborhoods and knock on doors, hoping that people will open the door and the police will either spot drugs in plain view, or the person will give consent to enter.  (As Scalia noted, and as any criminal attorney can tell you, suspects will often, for whatever reason, consent to searches of their person, cars, or homes, in the knowledge that contraband will be found.)  Unless the Court limits the the police to knocking on doors in the exigent circumstances context only when they have probable cause to believe that there's something inside, they'll have yet one more powerful weapon at their disposal, and the 4th Amendment will have taken one more hit.

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