Good Supreme Court Decision on Warrantless Searches

May 18th, 2011

By Dan Miller

Supreme Court DecisionCriminals have constitutional rights and so do the rest of us. In Kentucky v. King, the Supreme Court struck an appropriate balance between the rights of those who violate the laws and the rest of us who depend on the police to enforce them. The decision in no way resembles that of the Indiana Supreme Court stating that there is no right reasonably to resist an unlawful police intrusion. It in no way blesses anything even remotely approaching the sort of conduct in which the Pima County, Arizona SWAT team apparently engaged.

The Fourth Amendment to the Constitution provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It has long been held that reasonable searches may be conducted without a warrant only in limited circumstances, for example: when the police are in hot pursuit of someone reasonably thought just to have committed a crime, when a crime appears to be in progress and immediate action is necessary to assist the apparent victim, when an immediate search is necessary to prevent the destruction of evidence and in other circumstances when there is no time to obtain a search warrant. These are called “exigent circumstances.” Kentucky v. King, decided on May 16th and discussed here, elaborated on the situation where, despite the existence of exigent circumstances,  a warrantless search is unreasonable and hence unconstitutional. The Court’s decision provides a brief history of warrantless searches and of the circumstances under which they may not be justified by exigent circumstances.

The summary of facts, in light of which the Court made its decision stated,

Police officers set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After the deal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the officers that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to “hurry up and get there” before the suspect entered an apartment.

In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud as [they] could” and announced, “‘This is the police’” or “‘Police, police, police.’” Cobb said that “[a]s soon as [the officers] started banging on the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.” These noises, Cobb testified, led the officers to believe that drug related evidence was about to be destroyed.

At that point, the officers announced that they “were going to make entry inside the apartment.” Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent’s girl friend, and a guest who was smoking marijuana. The officers performed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.

Police eventually entered the apartment on the right. Inside, they found the suspected drug dealer who was the initial target of their investigation. (internal citations omitted, emphasis added)

The questions were, (a) was this an exigent search and (b) if so, was the exigency improperly created by the actions of the police. Question (a) was left to be answered again by the Kentucky court on remand; that court had found that the circumstances were exigent. The Kentucky court may remand to the trial court for additional evidence and findings on the subject. However, the Supreme Court noted,

the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted. In this case, however, no such actual threat was made, and therefore we have no need to reach that question.

The Kentucky Supreme Court had applied a two part test in answering question (b),

First, the court held, police cannot “deliberately creat[e] the exigent circumstances with the bad faith intent to avoid the warrant requirement.” Second, even absent bad faith, the court concluded, police may not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.”

Although the court found no evidence of bad faith, it held that exigent circumstances could not justify the search because it was reasonably foreseeable that the occupants would destroy evidence when the police knocked on the door and announced their presence.

The Supreme Court held the second part of the test applied by the lower court to go further than it had previously been pushed and to be incorrect, observing

Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.

Presumably for the purpose of avoiding such a result, the lower courts have held that the police-created exigency doctrine requires more than simple causation, but the lower courts have not agreed on the test to be applied. Indeed, the petition in this case maintains that “[t]here are currently five different tests being used by the United States Courts of Appeals,” and that some state courts have crafted additional tests. (internal citations omitted)

The Court then articulated the rule to be applied.

Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.

Finding that knocking on the apartment door and announcing “Police! Police! Police!” was consistent with Fourth Amendment requirements, that only after so announcing their presence had the police heard activity suggesting disposal of evidence and acted to prevent it, and that there was no evidence before it 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)” the Court held that if in fact the circumstances were exigent the police had not created them improperly.

Justice Ginsburg dissented, arguing that the police had ample time to secure a warrant without risking the destruction of evidence.

When possible, “a warrant must generally be secured,” the Court acknowledges. There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.

I don’t know whether a warrant could or could not have been secured without substantial risk that evidence would be destroyed; that goes to the question of whether the search was exigent and was not decided by the Supreme Court. It provided specific guidance on when the exigency exception to the warrant requirement should not apply, but not much beyond that on when it should be applied. It left that determination for the court below to make on remand.

In view of the facts of the case on which the Court based its decision, assuming along with the lower court that there had been an exigency, and the remand to the lower court on whether there actually had been one, the majority opinion seems the better reasoned of the two. There is a legitimate interest in catching criminals and it must not outweigh the interest in protecting their constitutional rights; it did not here.

Not all decisions of the Supreme Court are likely to deprive us or criminals of constitutional or other rights, and this decision seems quite unlikely to do so, Justice Ginsburg to the contrary notwithstanding.

(This article was first published at The PJ Tatler.)


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