Kentucky v. King and the Officer-Created Exigency Doctrine

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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.

3 comments on “Kentucky v. King and the Officer-Created Exigency Doctrine

  1. I admit, as much as I love the study of law and constitutional rights, I do not fully understand the ‘Officer Created Exigency Doctrine. My education consists of 1 semester of Community College in AA. However, I do have a problem with the Supreme courts ruling on this case.
    If the determination was that the officers banging on the door created the circumstances of the defendants commencement to destroy evidence, can these findings eventually be applied to other legal cases? If for example, an officer turns on lights and siren to perform a routine traffic stop, unaware the driver has outstanding warrants or has recently committed a crime, and the driver flees causing a pursuit, Can it be claimed that the officer created the circumstances by initiating the stop while oblivious to the drivers history.
    It seems to be a double edged sword. While no 4th Amendment rights were violated, the officer is still creating circumstances that results in the driver breaking a law.(If the driver is to be charged with felony evading or subsequent charges)
    Please let me know if I am off base on this issue or if it is a valid argument.

  2. As a retired police officer, and a training officer, with more than 35 yr. experience, I have to say that I agree with the Supreme Court’s ruling in this case. There is a certain “expectation of privacy” when one is within the confines of the abode, particularly if the doors, windows, drapes, etc. were closed from public view. In this case an officer should have been secretly posted on the door while a search warrant was obtained, which it’s been my experience, from affidavit to receipt takes maybe an hour. Circumstances would have been different if the observation of the “act” of consuming began outside the residence and in public view (even if the act were observed of someone inside consuming from the exterior). Then, there would be a reasonable existence of an exigent circumstance which could be better articulated in court. Remember, just because an arrest was made doesn’t necessarily make it a “good arrest.” A good arrest occurs when the charges stick. If there’s a chance that ANY part of the arrest is not on the level, then it’s best left alone. My thoughts are this: just because a criminal gets away with the crime today doesn’t mean he/she will get away with it tomorrow. Justice always has its day! Main thing is to maintain the officer’s credibility, because without that you are sunk.

  3. James: I think that you may be confused about the nature of the Supreme Court’s ruling. The Court ruled in favor of the police and stated that they violate someone’s rights in creating an exigency only if they do something, or threaten to do something that otherwise violates the Constitution (for example, if they say “open up the door or we will break it down”). Therefore, in your example, the traffic officer would not be violating the Constitution by activating his lights and siren in response to a traffic violation. Therefore, any exigency that the officer’s actions may have “created”, would not be a problem for the police.

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