Kentucky v. King: Exigent Circumstances Warrant Supreme Court Discussion

 

Darryl D. Collins[1]

On May 16, 2011, the Supreme Court of the United States held “a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment.”[2] Many believe this holding opens the door to unwarranted access into our homes.[3] However, the Supreme Court only answered the Petitioner’s presented question, albeit convoluted, which was, “[w]hen does lawful police action impermissibly ‘create’ exigent circumstances which preclude warrantless entry”?[4] This is not to say we should not be apprehensive, but the unanswered question and constitutional issue at hand is: Whether the present circumstances amounted to exigencies that justified a warrantless entry into the home?

The issue arose when Officer Cobb and other police officers from the Lexington-Fayette County Police Department conducted a “buy-bust” operation at an apartment complex in Lexington, Kentucky. In conducting the operation, Detective (Det.) Gibbons radioed to all officers that he observed the suspect selling crack-cocaine to their confidential informant and that the suspect had departed into the hallway of a nearby apartment building. Upon hearing such, Officer Cobb, Det. Maynard, and Sergeant Simmons raced to the scene, jumped out of their marked vehicles which contained their car radio/only form of communication, and sprinted to the area where the suspect was last seen.[5] As a result, all three officers neglected to hear Det. Gibbons radio the most important transmission which was the suspect entered the back right apartment. Upon entering the hallway, Officer Cobb and the others heard a door shut, but could not determine which apartment the dealer fled into. While walking down the hallway, Officer Cobb and the others smelled a strong order of burnt marijuana emanating from underneath the door of the back left apartment. Attempting to locate and arrest the suspect in question, Det. Maynard banged on the back left apartment door, identified all as police officers, and demanded the occupants open the door.[6] The three officers heard movement inside the apartment, specifically people moving around, and therefore believed the occupants were beginning to destroy evidence. As a result, Officer Cobb kicked open the door, observed a marijuana cigarette and powder cocaine in plain view, and arrested the occupants on a variety of drug charges.

Hollis Deshaun King (“King”) moved to suppress the evidence discovered after the warrantless entry. The trial court held that “no response to their knock on the door coupled with the movement inside the apartment which the officers believed were persons in the act of destroying evidence” constituted exigent circumstances which justified the warrantless entry.[7] The Kentucky Court of Appeals affirmed the trial court’s decision acknowledging the warrantless entry was valid, but believed the trial court’s legal analysis was incorrect. In a 2-1 decision, the court of appeals held that “because the police were pursuing a suspected felony crack cocaine dealer following a ‘buy-bust’ operation to a particular apartment building door and believe that the suspect was about to destroy evidence of a serious crime, we conclude that the warrantless entry into King’s apartment was valid.”[8] Upon reviewing the record, the Kentucky Supreme Court zeroed in on the main issue, which was “whether exigent circumstances existed, which justified the warrantless entry of the apartment occupied by Appellant Hollis Deshaun King.”[9] The supreme court held:

While probable cause existed for police to obtain a warrant to enter the apartment occupied by King, police did not have proper exigent circumstances to justify a warrantless entry. Police were not in hot pursuit of a fleeing suspect. Further, the entry was not justified by imminent destruction of evidence. The odor of marijuana alone did not provide a justification, and any exigency arising from the sounds of movement inside the apartment was created by police, and therefore cannot be relied upon as a justification.[10]

As a result, the supreme court reversed the court of appeals’ judgment, King’s motion to suppress evidence, and vacated King’s judgment of conviction.

Consequently, the Commonwealth filed a petition for writ of certiorari with the United States Supreme Court. The Commonwealth worded their petition to specifically focus on police created exigencies, not exigent circumstances.[11] As a result, in an 8-1 decision, the Supreme Court found “the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment” based on the fact that “the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense.”[12] The Court believed “warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment...”[13] Yet, the Court failed to discuss those circumstances.

The majority willingly allowed the wool to be pulled over their eyes beginning with oral arguments.  Ann O’Connell, attorney on behalf of the United States as amicus curiae, outright said “[I]t’s our positions that the court should assume that there was an exigency in this case.”[14] In fact, Ms. O’Connell then went on to say:

In the Respondent's brief in opposition, he argued that there was insufficient evidence of exigency. The Court nonetheless granted cert on the question of whether a police-created exigency would be okay under the Fourth Amendment. The Solicitor General believes that the Court should assume there was an exigency, and if it agrees with Kentucky on the question presented and then reverses, it should remand to the Kentucky Supreme Court for a determination of whether an exigency existed.[15]

Sadly, the Supreme Court followed her lead, made those assumptions, and has remanded the case back to the Kentucky Supreme Court to determine whether any exigencies existed. In fairness, it is understandable to “assume” for the sake of discussion during oral arguments, however it is unjustifiable to “assume” when shaping the “law of the land.” Here, the Court admittedly assumed an exigency existed, in order to focus its attention on police created exigencies. The Court believed that “any question about whether an exigency actually existed is better addressed by the Kentucky Supreme Court on remand.”[16] However, the question of whether there were exigent circumstances is the crux of the case.

As a result, attorneys, judges, and the ordinary citizen are left to wonder whether the possession and sale of crack cocaine correlates to the smell of burnt marijuana. As, Senior Judge Buckingham, the lone dissenter in the Kentucky Court of Appeals stated, “[s]imply because the suspect sold crack cocaine does not give rise to any inference that he must have fled into an apartment where there was the smell of marijuana smoke emanating therefrom.”[17] While I agree that the smell of burnt marijuana – an illegal drug in Kentucky – creates probable cause, the lack of correlation, among other reasons, in effect gives rise to the need of a warrant. Unfortunately, due to the shortfall of the Supreme Court’s discussion, one can wonder how this will possibly play out in states such as Colorado where the smell of marijuana can be the result of medicinal usage.

The second and arguably the most important issue is whether the sounds of people moving around were consistent with the imminent destruction of evidence. Here, Officer Cobb testified that he did not hear any furniture moving. Moreover, at no time did Officer Cobb testify that he heard a toilet flush or running water, all sounds consistent with the imminent destruction of evidence. When pressed, Officer Cobb testified that he only heard people moving, and acknowledged that people move in apartments, but more importantly, movement is necessary to answer the door. In the same breath, Officer Cobb candidly admitted and Justice Alito later agreed that occupants do not have a legal obligation to speak to and/or open the door for police who fail to obtain a warrant. Having accepted “noise” as people moving, the Court should have discussed whether the sound of people moving is synonymous with the imminent destruction of evidence – the pillar of Kentucky’s exigent circumstances argument justifying the warrantless entry.  As Justice Ginsburg articulately asked in the dissent, “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”[18]

Finally, upon considering whether the sounds of people moving around were consistent with the imminent destruction of evidence, the Court should have discussed whether there was actually any other evidence in the apartment to destroy, since the imminent destruction of evidence is the foundation for exigent circumstances. Here, Officer Cobb testified “[w]e knew that there was possibly something that was going to be destroyed inside the apartment.”[19] Officer Cobb later clarified “something” as evidence. However, prior to the warrantless entry, the only evidence the officers knew of was the crack-cocaine the suspect exchanged and the presumably “marked” money he received.  The officers did not have any information, either from their confidential informant or undercover investigation, that there were any drugs in the apartment. Thus, in actuality, what evidence was going to be destroyed inside the apartment? In focusing on the facts as laid out by the courts, prior to the “buy-bust,” the officers would not have had any evidence to receive a warrant for the apartment due to the lack of knowledge that there was more crack-cocaine inside the apartment. Therefore, the officers did not have a valid belief that there was additional evidence in the apartment to destroy. 

Over the past fifty years, our Supreme Court has consistently protected us from unreasonable searches and seizures. Unfortunately, plenty has changed over the course of years, assumptions are made and justice seems to have been traded for judicial efficiency. As a result, this case was remanded to the Kentucky Supreme Court to decide whether exigencies existed. Thus, Fourth Amendment advocates must come prepared to fight and show the court the police have no house edge in their lawless game of roulette. The lack of correlation between the possession and sale of crack cocaine to the smell of burnt marijuana, coupled with the ambiguous sounds of people moving around in their place of occupancy, and the absence of knowledge that there was more crack-cocaine inside the apartment, are not circumstances exigent enough to justify a warrantless entry into someone’s castle.

 


[1] Darryl D. Collins is a May 2010 from the University of Denver Sturm College of Law. Mr. Collins is currently a contract attorney in Denver, Colorado while he awaits placement in the United States Army Judge Advocate General’s Corps.

[2] Kentucky v. King, 561 U.S. ---, 131 S. Ct. 1849, 1852 (2011).

[3] See Linda Greenhouse, Op-Ed., Justice in Dreamland, N.Y. Times, May 18, 2011, available at http://opinionator.blogs.nytimes.com/2011/05/18/justice -in-dreamland/; David G. Savage, Supreme Court gives police leeway in home searches, L.A. Times, May 17, 2011, available at http://www.latimes.com/news/nationworld/nation/la-na-court-search-20110517,0,6746878.story.

[4] Brief for the Petitioner at i, Kentucky, 131 S. Ct. 1849 (No. 09-1272).

[5] It is unknown why none of the three uniformed officers failed to carry a handheld radio. As a result, communication was terminated between the officers and Det. Gibbons - the “eyes” of their “buy-bust” operation.

[6] The parties disagree as to whether the police actually demanded entry. However, the parties differing view of the facts, the trial court found that “Det. Maynard, who was accompanying Officer Cobb in the breezeway attempting to locate and arrest the suspect in question, banged on the door of the apartment, on the back left of the breezeway identifying themselves as police officers and demanding that the door be opened by the persons inside.” Brief for the Commonwealth of Kentucky app. at 3a-4a, Kentucky, 131 S. Ct. 1849 (No. 09-1272).

[7] Id.

[8] Id.

[9] King v. Commonwealth, 302 S.W.3d 649, 651 (Ky. 2010).

[10] Id. at 657.

[11] Petitioner’s presented two questions. Their first question was “When does lawful police action impermissibly “create” exigent circumstances which preclude warrantless entry; and which of the five tests currently being used the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances”? Their second question was “Does the hot pursuit exception to the warrant requirement apply only if the government can prove that the suspect was aware he was being pursued.

[12] King, 131 S. Ct. at 1858.

[13] Id.

[14] Oral Argument at 18:33, Kentucky, 131 S. Ct. 1849 (No. 09-1272), available at http://www.oyez.org/cases/2010-2019/2010/2010_09_1272/argument.   

[15] Id. at 18:45.

[16] King, 131 S. Ct. at 1863.

[17] King v. Commonwealth, No. 2006-CA-002033, 2008 WL 697629, at *9  (Ky. Ct. App. Mar. 14, 2008) (Buckingham, J., dissenting).

[18] King, 131 S. Ct. at 1865 (Ginsburg, J., dissenting).

[19] Brief of Respondent Hollis Deshaun King at 3-4, Kentucky, 131 S. Ct. 1849 (No. 09-1272).