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Police-Created Exigent Circumstances

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Today the Supreme Court decided Kentucky v. King, No. 09-1272, regarding the "exigent circumstances" exception as applied to the situation where the exigency is created by the police's own action.  As is common in drug cases, the exigency was the possible destruction of the evidence by the occupants of an apartment in response to the police's knock and announcement that they were at the door.

The win for the State is not surprising, but the margin is.  The decision was 8-1, with Justice Ginsburg dissenting alone.

The holding is that the police-created exigency exception to the exigent circumstance exception to the warrant requirement applies only when the police action creating the exigency is itself a violation of the Fourth Amendment.  This is narrowest (i.e., most favorable to the police) of the possibilities.

There will be much wailing and gnashing of teeth over this decision.  The next pocket part to LaFave's treatise will excoriate the opinion.  I consider this to be further confirmation of the exclusionary remedy's adverse impact on substantive Fourth Amendment law.  Just as the judges of old defined burglary as narrowly as they could to avoid hanging burglars, so judges of today narrowly define constable blunders to avoid letting criminals go free.

We will have further analysis of the decision later today.

2 Comments

The police were in a position where they had a right to be, and they had a reasonable belief to suspect that evidence was being destroyed. Easy case. I don't see how cops doing what they have a right to do can be used against admissibility. I saw the opinion cited Horton. Maryland v. Buie would seem to be another analogous case, if memory serves me correctly.

The other thing that is a mite annoying about Ginsburg's dissent is the one-sided concern for police abuse. First off, SCOTUS will crack down on even a perceived abuse (See, e.g., Siebert.) Second, these kinds of rules (i.e., the ones Ginsburg espouses) deter even lawful police conduct. Ginsburg doesn't seem to care about that.

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