Police-Created Exigent Circumstances: Thoughts on Kentucky v. King

Next week, the Supreme Court will be hearing oral argument in Kentucky v. King, a potentially significant case on the exigent circumstances exception to the Fourth Amendment. The exigent circumstances exception is a longstanding exception to the warrant requirement, but the Supreme Court has carefully avoided saying what the actual test is for exigent circumstances. The King case is on a specific aspect of the exception — when police conduct creates exigent circumstances, which the police cannot then use as a justification for an exigent search — and it may shed considerable light on the topic of exigent circumstances as a whole.

In this post, I want to talk about the facts of the case and then consider the legal issues. I want to make three points in particular. First, the facts of the case are still in dispute on an essential point. Second, the legal issue presented in the case is surprisingly narrow, a point that the briefing largely misses. Third, the theories offered by the state and the United States as amicus curiae are in my view far too broad, but the best answer is actually quite tricky but should be rooted in causation principles.

By way of full disclosure, I should add that I was approached by counsel for King for advice, and that I provided pro bono assistance to King in helping to craft King’s argument. Some of my advice was adopted by King, and some was not. Either way, my views in this post are mine and mine alone.

I. The Still-Disputed Facts

The facts of the King case are critical, although the briefs in the case present somewhat different versions of what the facts are. The two sides agree on the basics. Undercover police officers bought drugs from a suspect in an apartment hallway; the suspect then went into an apartment. The undercover called in the police to make the arrest, but the police did not hear which apartment the suspect entered. The police arrived in the hallway, but weren’t sure whether the suspect had entered the left apartment or the right apartment. They approached the left apartment and smelled marijuana coming from inside. The police knocked, announed that they were the police, and then heard something inside. After no one entered, the police forcibly entered the left apartment and found King smoking marijuana inside. The officers had chosen the wrong apartment: The person who had sold drugs had entered the right apartment. Nonetheless, King was then charged with marijuana offenses.

Although those are the basic facts, the details of what happened at the door are subject to dispute. Here’s how Kentucky describes it in its merits brief:

The officers reasoned that the opening of the left rear door which allowed the fleeing felon entry, also allowed the scent of burning marijuana to escape the apartment. The officers therefore believed that the fleeing felon had entered the apartment door on the left. J.A. 21-24, 31-32, 38-40, 46-47, 54-57, 65- 66. However, out of an abundance of caution, not knowing specifically which door the felon entered, the police officers knocked loudly on the left door and announced themselves. J.A. 21-24.
After no response, the officers heard things inside the apartment being moved around. Based upon their training and experience, the officers recognized the sounds coming from the apartment to be consistent with the sounds of destruction of physical evidence. J.A. 23-25, 40-43. Believing that they were in hot pursuit of a fleeing felon, that the felon had recently entered the left apartment, and that the felon was now destroying physical evidence of his crime of trafficking, the police officers entered the apartment. J.A. 24-25, 45-47.

King’s brief, which I have posted here, offers a different version of the facts. King notes that the state trial court held a suppression hearing and announced factual findings, which I have posted here. According to the factual findings of the trial court, the officers “banged on the door of the apartment . . . identifying themselves as police officers and demanding that the door be opened by the persons inside.” That is, the officers didn’t just knock and announce themselves: They knocked, announced their presence, and demanded to be let inside. King also notes that the testimony of the officers was that they heard some sort of sound inside, but the sound was of things being moved inside, rather than sounds of evidence being destroyed. At the suppression hearing, the officer testified that he couldn’t tell what the sound was, but that the sound was “possibly consistent” with the destruction of evidence.

In its reply brief, which was filed just today — and which I have posted here — Kentucky sticks to its position that the officers did not demand to be let inside. Kentucky claims that the statement in the trial court’s finding of fact that the officers “demand[ed] that the door be opened by the persons inside” was “merely a case of imprecision” rather than an actual finding of fact. Reply Brief at 8. Kentucky does not quite argue that the factual finding was clearly erroneous. Rather, Kentucky appears to argue that the trial court did not actually mean it when it said that the officers demanded to be let inside; what really happened, Kentucky claims, is that the officers knocked loudly on the door and announced that they were the police. (I suspect Kentucky takes this approach, rather than argue that the trial court’s findings were clearly erroneous, because the Kentucky Supreme Court expressly said that the trial court findings were supported by the record and were “conclusive” for purposes of its opinion but did not state in its fact section that the officers demanded entry.)

In light of the factual dispute, the first thing the Supreme Court has to do is figure out whether the officers demanded to be let inside. Does it matter, you ask? Well, I think it very well might. Let’s keep the facts unsettled for now and instead turn to the legal issue. We’ll then come back to the facts after that.

II. The Doctrine of Police-Created Exigencies — and the Narrowness of the Issue Before the Court

The basic idea of the exigent circumstances exception is that if there is some emergency, the police cannot be expected to get a warrant. If a suspect is destroying evidence when the police arrive, or if they are in hot pursuit of a suspect, the police cannot wait to get a warrant: By the time they get a warrant, the evidence will be gone. In applying this exception, the lower courts have created a doctrine of police-created exigencies. If the police created the exigency, then the police cannot rely on the exigency that they created to justify the warrantless search. The basic idea is that the police can’t circumvent the warrant requirement by manufacturing emergencies: If the police can create emergencies and then conduct warrantless entries, then the warrant requirement isn’t very meaningful.

It’s important to realize that the question presented in Kentucky v. King is very narrow: It is limited to the question of when police conduct creates an exigency. The Supreme Court of Kentucky’s decision held that there was no exigency based on the (incorrectly) believed entry of the suspect or the smell or marijuana inside. The Court next assumed for the sake of argument that the sounds inside were enough to create exigent circumstances. The Court then held that even with this assumption, the police could not rely on the sounds inside after they knocked and announced their presence to justify a warrantless search because the officers created the exigency.

Kentucky’s cert petition tried to get the Court to review two issues: First, the correct test for when police conduct creates exigent circumstances, and Second, how the “hot pursuit” test (which is part of exigent circumstances) is to be applied. Notably, when the Supreme Court granted cert, the Court granted only on the first question. Thus the only issue properly before the Justices is when police conduct creates an exigency. If the Court reverses on this issue and holds that the police conduct did not create the exigency in this case, then I assume the Supreme Court will remand the case back to the Kentucky Supreme Court and the Kentucky Supreme Court can then consider whether the noise in the apartment was enough to actually constitute exigent circumstances.

III. What is the Test for Police-Created Exigent Circumstances?

Finally we come to the issue on which the Court graned cert: What’s the test for police-created exigent circumstances? In its brief, Kentucky argues that the police in this case merely conducted a “knock and talk” — that is, they knocked on the door and sought to speak with the person inside — and that this is perfectly lawful conduct that should be held categorically to not create exigent circumstances. Kentucky then makes a broader argument that is similar to the one DOJ makes in its amicus brief: When police have probable cause to get a warrant, any lawful conduct they engage in cannot create exigent circumstances.

I don’t think either of those tests works. First, Kentucky is being unserious when it suggests that the facts of the case were merely a “knock and talk.” When the police conduct a knock-and-talk, they first knock, and they then wait to see if someone opens the door. If someone opens the door, the police talk to that person to try to develop more facts that can later support a warrant. The fiction is of a friendly chat: The police are essentially dropping by to say hello, and people are free to open the door or not as they wish. Even assuming there was no demand for entry in this case, this case does not involve a knock and talk. The officers just banged on the door and yelled that they were the police. And if there was such a demand, it is obviously very different from a knock-and-talk.

Second, I don’t see how the test can be that any lawful conduct is permitted. First, the question of what counts as “lawful” is quite murky. Does the lawful test mean lawful under Fourth Amendment law? Constitutional law as a whole? Federal statutory law? State law? International law? The law of war? What counts?

These are not fanciful questions. For example, imagine the police want to release tear gas in an effort to “smoke out” the suspect. Can they release the tear gas, then, when they hear sounds inside, break in without a warrant on the grounds of exigent circumstances? Releasing tear gas is not a search or a seizure. It doesn’t violate the Fourth Amendment. And as far as I know, the police are allowed to release tear gas under other laws, as well: They certainly do it on occasion. But who knows, maybe there is some law somewhere that regulates police use of tear gas. Does that matter? For these reasons, the question of “lawfulness” strikes me as very murky.

More broadly, a rule that the police can do whatever they want that is “lawful” without creating exigent circumstances seems totally unmoored from the purpose of the exigent circumstances exception. The point of having a doctrine on police-created exigencies is to recognize that police-created exigencies are not true exigencies. If the police opt to do the thing that creates the emergency, then there was no genuine emergency. It’s kind of like entrapment doctrine. The police can’t badger a suspect into committing a crime and then arrest him for it, as it was police action, not the suspect’s own decisions, that caused the crime to occur. For that reason, whether the police conduct was “lawful” doesn’t seem relevant to whether it creates exigent circumstances.

At the same time, coming up with a test is actually pretty tricky. For example, I tend to think the doctrine of police-created exigency calls for some sort of a causation test. If police conduct was the proximate cause of the evidence, that evidence cannot be relied on to support exigent circumstances. At the same time, it makes sense for the police to be able to do what private citizens normally do. If the police do what private citizens normally do, then they are not creating an exigency: They are just doing what everyone does, and the exigency is caused by the quirky reactions of the suspects rather than the police action. Put another way, what creates the exigency should be the the unusual or official-police-like behavior, beyond what private citizens routinely do, and the reactions that this unusual or official-police-like behavior causes. I realize this is a murky sort of test. But then I think this is a murky sort of problem in the first place.

Where does that bring us? In Kentucky v. King, I think it suggests a need for a narrow holding: Not a one-size-fits-all test for police-created exigent circumstances, but rather something more for the specific facts of this case. For that reason, I tend to support the test offered in King’s brief starting at Page 22 that the police create exigent circumstances when a reasonable person would believe that the police are about to conduct a forcible search — and the facts alleged to create the exigency are the natural byproduct of that perception.

Here’s my thinking. When the police bang on a door, shout that they are the police, and demand entry, they do what they do when they have a warrant. To someone inside, that noise from outside creates the impression that the police are following the “knock and announce” rule they have to follow when executing warrant. Under the rule, if no one answers the door in 15-20 seconds, the police will break down the door and enter. If I’m in an apartment and I hear that outside, I’m not just going to sit there in my apartment and keep watching TV or surfing the Internet or watching the paint dry. Rather I’m either going to run to the door immediately to stop the police from breaking it down (which I have only a few seconds to do before they enter) or else I’m going prepare myself for a bunch of cops violently entering a few second later. Either way, I’m going to move around and make some noise.

Anyway, how that test should apply to the facts of Kentucky v. King isn’t obvious, as the facts are still in dispute. But I think that’s the kind of analysis that should frame the Court’s approach to the problem.

Finally, I can’t help but point out something cool about the Kentucky v. King case in my capacity as a GW Law professor. It will be argued by two young GW Law grads! My former student Ann O’Connell, GW Law ’04, is a recent hire as an Assistant to the SG, and she will be arguing for the United States as amicus curiae in support of the Petitioner. Jamesa Drake, GW Law ’02, will be arguing for the Respondent.

Cross-posted at SCOTUSblog.

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