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Bad boys, whatcha gonna do?

Decisions, decisions.  Police officer Steven Cobb had one to make.  He was part of a team which had set up a controlled buy of crack outside an apartment building in Lexington, Kentucky.  After making the buy, the suspect ran into the building, and Cobb got the call to intercept him before he entered an apartment.

Too late; as Cobb and other officers got to the hallway, they heard a door slam.  At the end of the hall, there were two apartments; the cops didn't know which one the suspect had entered.  They smelled marijuana smoke emanating from the one on the left, though, so they pounded on the door and yelled "Police!"  They heard noises inside, and believing that the people inside were destroying evidence, they broke down the door.  Inside, they found cocaine and marijuana.

Wrong apartment, it turned out; the suspect was later found in the apartment on the right.

And on Monday, in Kentucky v. King, the Supreme Court held that it didn't matter.

While the Court has acknowledged that there's a preference for searches to be conducted with a warrant, there are exceptions to that, one of them being "exigent circumstances," which allow the police to make a warrantless entry if they reasonably believe that the destruction of evidence is imminent.  But there's an exception to that exception, and it's the one the Kentucky Supreme Court hung its hat on in throwing out the search:  the police can't rely on exigent circumstances if they themselves create the exigency.  Here, the court held, even assuming there was an exigency, the police had created it by banging on the door.

It's pretty simple, really, Alito explains in the Court's 8-1 decision:

Warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement.  Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense.

And reasonable it was, the Court finds.  It rejects other tests which have been proposed to determine whether the police created the exigency.  "Bad faith" shouldn't be used because it focuses on the subjective motives of the police rather than objective factors.  "Foreseeability -- whether the police officers should have anticipated that their actions would lead a drug suspect to destroy evidence -- is out, because it's impractical; "it would be necessary to quantify the degree of predictability that must be reached before the police-created exigency doctrine comes into play."  Whether the police had time to secure a warrant is not appropriate, because "there are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired" -- they may want to ask for consent because that's simpler, they might find that a short conversation with the occupant clears the matter up. 

So here, the police did "no more than a private citizen might do" -- they knocked on a door and requested an opportunity to speak to the occupants.  The occupants had "no obligation to open the door or to speak, and even if they did decide to do so, they didn't need to allow the officers to enter."

Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

The Court's opinion is thorough but concise -- none of Scalia's detours into what various Congressmen had for breakfast the morning the 4th Amendment was debated -- and well-reasoned. 

It is also, sadly, wholly divorced from the realities of life.  How can anyone not understand the difference between somebody knocking on your door, and a bunch of people banging on your door and shouting "Police!"?

Back in 1996 the Supreme Court held in Whren v. US that as long as the police observed you commit a traffic violation, they could pull you over even if the violation was actually a pretext to attempt a more expansive search.  The result was that if the police wanted to stop you, they merely had to come up with some justification:  you didn't put on your turn signal when changing lanes, or when pulling away from the curb, or at least 100 feet from an intersection, or pulling out of your driveway, or -- so help me God -- on suspicion of excessive window tinting

Check that.  It wouldn't be you who would be stopped, because somebody reading this blog probably isn't within the demographic of people likely to be stopped for those "reasons" -- somebody poor, somebody black, somebody unfortunate enough to find himself living in the "high crime areas" of a city. 

As in this case, the War on Drugs is what drives a lot of 4th Amendment law, and as in any war, each side constantly refines its tactics.  Whren gave the police a new tactic, which they used in the manner described above, the examples culled from what has become an all too-common feature on this blog:  the Bullshit Traffic Stop of the Week.®  King will give them another.  And like Whren, the citizens of the tonier suburbs will not have to worry about how to respond should The Man come a'knockin'.  The inner cities... well, if they're not bright enough to stand on their own constitutional rights, whose fault is that?  I mean, it would be different if there were a history of constitutional rights not being scrupulously honored in the projects.

The full measure of King's potential for for further diminution of  4th Amendment rights is indicated by the evidence the police cited as the basis for the exigency:

Cobb said that "[a]s soon as [the officers] started banging on the door," they "could hear people inside moving," and "[i]t sounded as [though] things were being moved inside the apartment."  These noises, Cobb testified, led the officers to believe that drug related evidence was about to be destroyed.

So we have several police officers standing at the door of a residence where they expect they might find drugs.  They can go back to the stationhouse, consult with the prosecutor, draw up an affidavit, go to a judge, and secure a warrant.  Or they can bang on the door and yell "police," which will almost surely spur the occupants to action, at which point the police can use that movement as justification for making a warrantless entry.  What to do, what to do...

There is some glimmer of hope.  The Kentucky Supreme Court hadn't addressed the issue of whether an exigency actually existed; it had simply assumed that it did, and then found that the police had created it by their own actions.  So it's not an outright reversal:  the case goes back to the Kentucky court for determination of whether the exigency existed, i.e., whether the police really believed that evidence was being destroyed.  It may be that the court will answer that question in the negative.  It may be that they will stress the "things being moved inside the apartment," rather than simply the movement of the occupants, as giving rise to the exigency.

But I guarantee that a year from now I'll be writing about decisions where the courts hold that because the police heard movements inside the residence, that was sufficient to create an exigency justifying a warrantless entry.

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