Kentucky v. King and Police-Created Exigent Circumstances

This morning the Supreme Court handed down Kentucky v. King, a Fourth Amendment case on police-created exigent circumstances. This was the case on when police conduct can be factored into the creation of an exigency that justifies a warrantless entry into an apartment. Under the Fourth Amendment, the police can conduct a warrantless search or seizure if justified by an emergency — so-called “exigent circumstances.” The Supreme Court has never really articulated the rule for exigent circumstances; the Court just says that the issue is reasonableneness, with lower courts filling in that standard with a series of multifactor tests. The issue in King was the test for an exception to the exigent circumstances exception: The police can’t rely on exigent circumstances if they themselves created the exigency. The question is, how do you distinguish exigencies created by the police from exigencies created by suspects?

In a relatively narrow 8-1 opinion by Justice Alito, the Court today embraced the following test: Conduct that does not violate the Fourth Amendment or threaten to violate the Fourth Amendment is not considered part of police-created exigent circumstances. That is, the exigent circumstances determination can properly consider all the facts as long as the police didn’t violate the Fourth Amendment or threaten to violate the Fourth Amendment. I think the opinion was pretty well-done, and I wanted to blog a few thoughts on it. (Full disclosure: I gave some assistance to the Respondent Mr. King, who did not prevail in the case.)

In this case, officers entered an apartment without a warrant after smelling marijuana inside, knocking, and hearing noises inside. The Kentucky Supreme Court had assumed that the police had exigent circumstances in those facts, but then concluded that the police had created the exiegncy — and therefore could not rely on it to make a warrantless entry — by in effect inducing King inside to react to the police outside and react in a way that created the exigency. In its opinion today, the Supreme Court disagreed:

In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either “‘Police, police, police’” or “‘This is the police.’ ” App. 22–23. This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence that might show that the officers either violated the Fourth Amendment or threatened to do so (for example, by announcing that they would break down the door if the occupants did not open the door voluntarily).

Regular readers will recall that I was pretty worried about this case based on how confusing the oral argument was — and how confused the Justices seemed to be by the issues, and even the factual record. At first blush, though, my initial take is that Justice Alito’s opinion offers a pretty artful way of resolving a fairly difficult Fourth Amendment problem. The two key moves Alito made were (a) clarifying that the “lawfulness” test refers to compliance with the Fourth Amendment, not just lawfulness generally or under relevant state or federal statutes, and (b) adding a “threat” element to the lawfulness test, so that responses to a threat to violate the Fourth Amendment will count as police-created and cannot be factored into exigent circumstances. If we assume that a police threat to violate the Fourth Amendment means a police threat to take steps that, construed objectively, would violate the Fourth Amendment, then that would mean that the police can’t create an exigency by threatening to break down the door or use excessive force. I can think of some possible ambiguities of the Court’s test, but they’re not the ambiguities that are likely to come up very often. So from a standpoint of selecting a rule, I think Justice Alito did a pretty sharp job.

One problem in applying the Court’s test is that the factual findings of the trial court stated that the officers “demanded” entry. If an officer who can’t lawfully enter an apartment “demands” that a person inside open the door to let him in, that actually creates a rather complicated Fourth Amendment problem. An officer who makes a demand is trying to take control: If the subject of the demand complies with the demand, the officer’s conduct would presumably constitute a Fourth Amendment violation because any consent to entry would be coerced (and therefore constitutionally invalid) due to the officer’s order. As I explained in an early post, the different reading of the record as to exactly what the police did was one of the key ambiguities in the case. Justice Alito responded by reading the record to question whether such a demand was actually made:

Respondent argues that the officers “demanded” entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion. He relies on a passing statement made by the trial court in its opinion denying respondent’s motion to suppress. See App. to Pet. for Cert. 3a–4a. In recounting the events that preceded the search, the judge wrote that the officers “banged on the door of the apartment on the back left of the breeze­ way identifying themselves as police officers and demanding that the door be opened by the persons inside.” Ibid. (emphasis added and deleted). However, at a later point in this opinion, the judge stated that the officers “initially knock[ed] on the door of the apartment unit and await[ed] the response or consensual entry.” Id., at 9a. This later statement is consistent with the testimony at the suppression hearing and with the findings of the state appellate courts. See 302 S. W. 3d, at 651 (The officers “knocked loudly on the back left apartment door and announced ‘police’ ”); App. to Pet. for Cert. 14a (The officers “knock[ed] on the door and announc[ed] themselves as police”); App. 22–24. There is no evidence of a “demand” of any sort, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to our attention, the state court may elect to address that matter on remand.

I’m not sure I buy that reading of the record: I believe the “passing statement” was actually part of the trial court’s finding of fact, and appellate courts obviously don’t make “findings” when summarizing opinions of the trial court. But by remanding, I suppose the Court is really just sending the matter back to the Kentucky courts for a do-over anyway. So perhaps it doesn’t matter very much. (Plus, from a standpoint of development of the law, it is far better for the Court to reverse on uncertain facts and remand for more facts than it is to take a view of the facts and potentially make some bad law along the way.)

Finally, it’s worth noting that the Court’s opinion is quite narrow. In particular, the Court did not conclude that the entry was lawful. Whether the police had exigent circumstances was not before the Court: The only issue was the test for police-created exigent circumstances. So now the case is remanded back to the Kentucky courts for more proceedings in light of the Court’s new test.

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