Common Misreadings of Kentucky v. King, and the Difference Between Exigent Circumstances and Police-Created Exigencies

Linda Greenhouse has a post up about the recent decision in Kentucky v. King that I fear misreads the case in the course of criticizing it. I’ve seen the same apparent misreading elsewhere from some pretty sophisticated and credentialed sources. I wanted to say a bit about why I think Greenhouse and others are misreading the case and why I think the case is much narrower than many seem to think.

First, some background. The Supreme Court has long recognized that the police can make warrantless searches and seizures when justified by some emergency — so-called “exigent circumstances.” The basic idea is that the police can search without a warrant when the totality of the circumstances make the warrantless entry reasonable. Lower courts have also developed an exception to reliance on exigent circumstances: The police can’t create exigent circumstances and then rely on the exigent circumstances they have created in order to justify a warrantless search. The doctrine of police-created exigent circumstances essentially removes certain facts from the totality-of-the-circumstances inquiry: When deciding whether the circumstances justify a warrantless entry, the police can’t consider any of the circumstances that were police-created. Courts have to subtract out the police-created exigencies from the rest of the facts before assessing whether a particular police-created exigency was reasonable. The question in King was, what’s the test for what should be subtracted out?

In King, the police were looking for a drug dealer who they thought had just run into an apartment. They smelled marijuana coming from inside, knocked and announced their presence, and then heard noises inside that they thought were in response to their knock and announce and signified the likely destruction of the drugs. Although the police normally need a warrant to enter, they relied on the noises inside to say that there were exigent circumstances. The defense argued that the noises were a police-created exigency, and therefore could not be considered as part of the totality of the circumstances. The Kentucky Supreme Court crafted a two-part test for what should be subtracted out as police-created:

[F]or Kentucky, we adopt a two-part test. 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.

The Kentucky Supreme Court applied that test to the facts and concluded that the police could not rely on the sounds of movement inside the home after the police knocked and announced their presence as evidence of exigent circumstances. Although the police had acted in good faith, they had announced their presence “unnecessarily.” “[T]his create[d] the fear that evidence will be destroyed,” and the police could not rely on the natural consequences of that fear as the basis for the exigency. Without that evidence, there were no exigent circumstances based on the fear of destruction of the drugs. The Supreme Court granted cert, although the Court expressly limited the cert grant to the question of what is the proper test for police-created exigent circumstances. The Court the handed down its new rule: facts are subtracted out from the totality inquiry — that is, the usual exigent circumstances approach is modified due to police-created exigencies — only if the police violated the Fourth Amendment or threatened to violate it. The vote was 8-1, with only Justice Ginsburg dissenting.

I go through all of this in detail to point out what King did and did not consider. Importantly, King did not consider whether the facts of the King case amounted to exigent circumstances. The Court did not consider whether the warrantless entry was constitutional. Instead, the limited cert grant addressed only a small piece of the puzzle: The Court only considered the right test for police-created exigent circumstances — the part to be subtracted from the totality of the circumstances — and then remanded the case back to the Kenucky courts. Here’s how the U.S. Supreme Court expressed it in the introduction to its opinion:

The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.

Thus, the Court’s conclusion was that all the facts could be considered — the usual “exigent circumstances rule” applies — without subtracting out the evidence of noises inside the home. (You can also see the limited nature of the issue from the oral argument transcript: At page 29, Counsel for King starts off by arguing that there were no exigent circumstances. The Justices have to stop her and direct her to focus on the test for police-created exigencies.)

I fear this limited scope has been misunderstood in some of the coverage of the King case. Some have read the King case as if the Court concluded the search was constitutional. For example, in Greenhouse’s post, she writes:

The question for the Supreme Court in a case decided on Monday was whether the police behavior in this case, Kentucky v. King, came within a recognized exception to the warrant requirement, the “exigent circumstance” created by the likely imminent destruction of criminal evidence. . . . .

What the court held, in an opinion by Justice Samuel A. Alito Jr., is that warrantless entry to prevent the destruction of evidence is justified as long as the police “did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.”

Importantly, though, the Court did not hold that the warrantless entry was justified — much less that warrantless entries are generally justified — in such circumstances. The Court only held that the usual exigent circumstances rule applies: That is, whether or not there were exigent circumstances, the Kentucky courts should have considered the totality of the circumstances instead of subtracting out the reaction inside the house to the officers’ knocking and announcing their presence.