Kentucky v. King and the Officer-Created Exigency Doctrine

Yesterday, the Supreme Court decided Kentucky v. King, a case that addresses — actually, eviscerates — the officer-created exigency doctrine. The facts are as follows: Officers investigating possible drug crimes smelled an odor of marijuana emanating from an apartment door. They banged loudly on the door and announced their presence. They heard people moving inside the apartment and suspected that drug evidence was being destroyed. They kicked in the door and saw drugs in plain view. The defendant was one of several people present. He was arrested and charged with drug crimes.

The defendant moved to suppress, arguing that the officers’ warrantless entry was unreasonable, but the trial court disagreed, ruling that exigent circumstances supported the entry. The defendant pled guilty, reserving his right to appeal. An intermediate appellate court affirmed, but the state supreme court reversed. It assumed arguendo that exigent circumstances existed but held that the exigent circumstances exception to the warrant requirement does not apply when it is “reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” In other words, when the police banged on the door, they prompted the occupants to begin destroying evidence, and thereby created the very exigency on which they based their warrantless entry. The Supreme Court granted certiorari to resolve a split of authority regarding the scope of the officer-created exigency doctrine.

The Court held that so long as “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.” Whether the police created the exigency intentionally, or foreseeably, or as a way to avoid seeking a search warrant is immaterial, according to the Court, and grafting any of those considerations onto the Fourth Amendment’s basic command that officers act reasonably would create practical problems. That holding appears to nullify the officer-created exigency doctrine, since the doctrine would apply only when officers are already violating the Fourth Amendment when they create an exigency, and so whatever evidence they find is already subject to suppression.

Applying its holding to the facts of the case, the Court concluded that the officers did not violate the Fourth Amendment or threaten to do so. It viewed the officers’ banging on the door and saying “this is the police” or “police, police, police” as similar to knocking on the door and unlike demanding entry or threatening to enter. Because their conduct amounted to nothing more than requesting consent to enter, it did not implicate the Fourth Amendment, and any response by the occupants could properly be considered in the exigent circumstances calculus.

What’s the effect here? For federal practitioners, it’s substantial, since the Court’s decision undermines the defendant-friendly officer-created exigency ruling in United States v. Mowatt, 513 F.3d 395 (4th Cir. 2008). At the state level, the officer-created exigency doctrine has never been considered by North Carolina’s appellate courts. So King heads off a possible development in the law more than it actually changes the law in North Carolina.

For those interested in further reading, the ABA Journal summary of the case is here, though it doesn’t add much to the above and probably isn’t as good as reading the Court’s syllabus. Professor Orin Kerr’s analysis of the case is here. And Crime and Consequences covers the case here, stating that “this very pro-law-enforcement decision is likely to raise eyebrows. After all, the idea that a police officer can detect the smell of marijuana, knock on a nearby door, and bust into the home after hearing people move about inside . . . might rub wrong even the most tough-on-crime believers. . . . [T]he real issue critics have with this scenario is not the propriety of the officer’s act of knocking on the door, but whether these borderline circumstances rise to the level of ‘exigent circumstances’ justifying a warrantless entry,” an issue on which the Supreme Court did not opine.