There’s been much hand-ringing over the Supreme Court’s recent decision in Kentucky v. King, decided 8-1 with Ginsburg dissenting. In fact, the Seattle Times has declared that the Supreme Court OKs warrantless searches. Where have they have been for the last 97 years? This certainly isn’t the first decision on the topic.
The Kentucky holding: “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” (Lawyers, man.) Let’s look at the facts and procedural history.
Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others.
Stop. First question. Does this constitute exigent circumstances (circumstances that would allow the police to enter without a warrant)? Exactly what kind of noises did they hear? It’s a great question. Unfortunately, this question was never answered because the Kentucky Supreme Court presumed that exigent circumstances existed and SCOTUS expresses some skepticism over this.
As a preliminary matter, the court observed that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” But the court did not answer that question. Instead, it “assume[d] for the purpose of argument that exigent circumstances existed.”
The Kentucky Supreme Court found that while exigent circumstances existed, the police could not escape the warrant requirement because they are ones who created the exigent circumstances. And bad faith or not, “exigent circumstances could not justify the search because it was reasonably foresee able that the occupants would destroy evidence when the police knocked on the door and announced their presence.”
And that it was the Supreme Court reversed. After detailing SCOTUS’s long history of slicing the Fourth Amendment into pieces, it announces:
Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their con duct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.
And guess who’s pissed? Justice Ginsburg.
The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.
So what does this practically mean? If you’re charged, the trial court must still determine whether exigent circumstances existed. “What exactly were those noises you heard, Mr. Officer?” But as some folks have pointed out, this will result in some questionable searches:
These and other criminal law experts said that under Monday’s ruling, police could go door to door in an apartment complex where there is known drug activity, and if they smell marijuana, bang on the door and if they hear noises that suggest the destruction of incriminating evidence, they can break in and seize evidence in plain sight.
Listen guys. Don’t smoke in the living room, smoke in the back. And while we’re at it, CAN WE JUST LEGALIZE MARIJUANA ALREADY?
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