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Kentucky v. King

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The U.S. Supreme Court today heard oral argument in Kentucky v. King, a case that asks the question - at what point do police impermissibly create exigent circumstances, such that they cannot rely on exigency to enter a home without a warrant?

"[W]arrants are generally required to search a person's home or his person unless the 'exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment."  (Mincey v. Arizona.)  The boundaries of what constitutes "exigent circumstances" have been the source of much litigation, but were not really at issue in the case argued today.

After conducting a controlled drug buy, the Lexington-Fayette County police followed the suspected drug dealer through an apartment building.  While standing in a breezeway, the officers detected the smell of burning marijuana coming from an apartment, knocked on the door, and announced their presence.  No one responded, but the officers heard movement inside.  Thinking that evidence was possibly being destroyed, the officers entered the apartment and discovered three people, including Hollis King, and a stash of drugs.  (The suspected drug dealer, by the way, had gone into a different apartment.)

The Kentucky Supreme Court ruled the evidence inadmissible.  Assuming "for the purpose of argument" that exigent circumstances existed, the court determined it was "reasonably foreseeable" the investigative tactics employed here (i.e. knocking and announcing their presence) would lead to the imminent destruction of evidence.  Because the exigency was police-manufactured, the court reasoned, they could not rely on the circumstances to justify their warrantless entry.  Any evidence found thereafter was out.

The Commonwealth of Kentucky filed a petition for certiorari, arguing that instead of the "reasonably foreseeable" standard adopted by the Kentucky court in discerning police-manufactured exigency, the test should instead be whether the police acted lawfully.  The circuit and state courts are currently split on this issue, utilizing no less than four different tests.

During argument today, a considerable amount of discussion focused on the facts of this particular case and whether they amounted to exigent circumstances - rather than on the appropriate test for determining police-created exigency.  Ann O'Connell of behalf of the U.S. Solicitor General as amicus curiae, as well as several of the justices, attempted to steer argument back to the issue.

Counsel for King diverged somewhat from the Kentucky court's "reasonably foreseeable" test, instead arguing that police should not be permitted to invoke the exigent circumstances exception when they act "unreasonably."  This got her into a bit of a bind, however, when Justice Roberts observed her position to be largely parallel that of the Commonwealth:

CHIEF JUSTICE ROBERTS:    What is -- what is an example of conduct that you would consider unreasonable resulting in suppression of the evidence that would not be unlawful?

MS. DRAKE (for King):   Well, it's very hard.  It's very hard to conceive of where the daylight would be -

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CHIEF JUSTICE ROBERTS:   So you can't -- can't give me one example of some conduct that's unreasonable under your test that would not be unlawful?

MS. DRAKE:    I can't -- I can't think of one, Your Honor.

1 Comment

Did the cops act unreasonably in knocking on the door? Isn't that really the crux of the issue?

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