Criminal Procedure
Theory and Practice

Second Edition

by Jefferson L. Ingram


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Chapter 7 Update 7.1

Searches and Seizures: Houses, Places, Persons, and Vehicles

Kentucky v. King

Significance of the Case: W here police officers substantially create the emergency situation or exigency on which they rely to make a probable cause, warrantless entry into a home, the Fourth Amendment's exigent circumstances exception to warrant requirement applies, as long as the police did not create the exigency by engaging or threatening to engage in unlawful conduct that violates the Fourth Amendment .

Kentucky v. King

___ U.S. ___, 2011 LEXIS 3541 (2011)


Police officers in Lexington, Kentucky chased a suspected drug dealer, into an apartment complex where they lost track of him but believed that he entered one of two apartments. When they arrived at the apartment doors, they smelled burning marijuana coming from one of the apartments. Although they had no warrant to search either apartment and had no idea which apartment the suspect had entered, the officers selected the apartment from which the odor was coming and announced that they were the police and they pounded on the door. When the only audible response from inside the apartment involved noises that police believed were consistent with the destruction of drug evidence. The officers announced that they were entering and broke down the door. Inside they discovered one individual smoking weed while the others were not visibly breaking the law. The officers observed drugs in plain view during a protective sweep of the apartment and discovered additional drug evidence during a subsequent search. The Kentucky trial court denied Mr. Hollis Deshaun Kings's motion to suppress the evidence, holding that exigent circumstances--the need to prevent destruction of evidence--justified the warrantless entry. Respondent King entered a conditional guilty plea, reserving his right to appeal the trial court's suppression ruling. The Kentucky Court of Appeals affirmed the trial court. The Supreme Court of Kentucky reversed and assumed that exigent circumstances existed, but it invalidated the search because the police should have foreseen that their conduct creating the exigency would prompt the occupants to attempt to destroy evidence. The Supreme Court of the United States granted certiorari.

Procedural Issue:

Under the facts of this case, where police officers had reason to believe that evidence was about to be or was being destroyed, under an exigent circumstances theory, may officers a warrantlessly enter a private dwelling when they have probable cause to search?

Held: Yes.


Justice Alito delivered the opinion of the Court.

It is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. In this case, we consider whether this rule applies when police, by knocking on the door of a residence and announcing their presence, cause the occupants to attempt to destroy evidence. The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.

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The Fourth Amendment 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.”

The text of the Amendment thus expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. See Payton v. New York, 445 U.S. 573, 584 (1980).

Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured. “It is a 'basic principle of Fourth Amendment law,' ” we have often said, “ 'that searches and seizures inside a home without a warrant are presumptively unreasonable.' Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004)). But we have also recognized that this presumption may be overcome in some circumstances because “[t]he ultimate touchstone of the Fourth Amendment is 'reasonableness.' (Citations omitted.) Accordingly, the warrant requirement is subject to certain reasonable exceptions. Brigham City, supra, at 403.

One well-recognized exception applies when “ 'the exigencies of the situation' make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 394 (1978); see also Payton, supra, at 590, (“[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant”).

This Court has identified several exigencies that may justify a warrantless search of a home. See Brigham City, 547 U.S., at 403. Under the “emergency aid” exception, for example, “officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Ibid.; see also, e.g., Fisher 588 U.S., supra, at ___, (upholding warrantless home entry based on emergency aid exception). Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. See United States v. Santana, 427 U.S. 38, 42-43, (1976). And--what is relevant here--the need “to prevent the imminent destruction of evidence” has long been recognized as a sufficient justification for a warrantless search. Brigham City, supra, at 403; see also Georgia v. Randolph, 547 U.S. 103, 116, n. 6, (2006); Minnesota v. Olson, 495 U.S. 91, (1990).

[The Supreme Court of the United States rejected a test accepted by the Supreme Court of Kentucky that invalidated police searches when police conduct was reasonably believed to two have been the cause of the exigent circumstances. In applying this test, courts that have accepted reasoning similar to the Supreme Court of Kentucky, have invalidated warrantless home searches on the ground that it was reasonably foreseeable that police officers, by knocking on the door and announcing their presence, would lead a drug suspect to attempt to destroy evidence.]

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Adoption of a reasonable foreseeability test would also introduce an unacceptable degree of unpredictability. For example, whenever law enforcement officers knock on the door of premises occupied by a person who may be involved in the drug trade, there is some possibility that the occupants may possess drugs and may seek to destroy them. Under a reasonable foreseeability test, it would be necessary to quantify the degree of predictability that must be reached before the police-created exigency doctrine comes into play.

A simple example illustrates the difficulties that such an approach would produce. Suppose that the officers in the present case did not smell marijuana smoke and thus knew only that there was a 50% chance that the fleeing suspect had entered the apartment on the left rather than the apartment on the right. Under those circumstances, would it have been reasonably foreseeable that the occupants of the apartment on the left would seek to destroy evidence upon learning that the police were at the door? Or suppose that the officers knew only that the suspect had disappeared into one of the apartments on a floor with 3, 5, 10, or even 20 units? If the police chose a door at random and knocked for the purpose of asking the occupants if they knew a person who fit the description of the suspect, would it have been reasonably foreseeable that the occupants would seek to destroy evidence?

We have noted that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor , 490 U.S. 386, 396-397 (1989) . The reasonable foreseeability test would create unacceptable and unwarranted difficulties for law enforcement officers who must make quick decisions in the field, as well as for judges who would be required to determine after the fact whether the destruction of evidence in response to a knock on the door was reasonably foreseeable based on what the officers knew at the time.

Probable cause and time to secure warrant . Some courts, in applying the police-created exigency doctrine, fault law enforcement officers if, after acquiring evidence that is sufficient to establish probable cause to search particular premises, the officers do not seek a warrant but instead knock on the door and seek either to speak with an occupant or to obtain consent to search. See, e.g. , Chambers [v. Maroney ], supra, at 569 (citing “[t]he failure to seek a warrant in the face of plentiful probable cause” as a factor indicating that the police deliberately created the exigency).

This approach unjustifiably interferes with legitimate law enforcement strategies. There are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired. Without attempting to provide a comprehensive list of these reasons, we note a few.

First, the police may wish to speak with the occupants of a dwelling before deciding whether it is worthwhile to seek authorization for a search. They may think that a short and simple conversation may obviate the need to apply for and execute a warrant. See Schneckloth v. Bustamonte , 412 U.S. 218, 228 (1973) . Second, the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant. A consensual search also “may result in considerably less inconvenience” and embarrassment to the occupants than a search conducted pursuant to a warrant. Ibid. Third, law enforcement officers may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application. Fourth, prosecutors may wish to wait until they acquire evidence that can justify a search that is broader in scope than the search that a judicial officer is likely to authorize based on the evidence then available. And finally, in many cases, law enforcement may not want to execute a search that will disclose the existence of an investigation because doing so may interfere with the acquisition of additional evidence against those already under suspicion or evidence about additional but as yet unknown participants in a criminal scheme.

We have said that “[l]aw enforcement officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.” Hoffa v. United States , 385 U.S. 293 (1966) . Faulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.

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In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either “ 'Police, police, police' ” or “ 'This is the police.' ” App. 22-23. This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence 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).

Respondent argues that the officers “demanded” entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion. He relies on a passing statement made by the trial court in its opinion denying respondent's motion to suppress. See App. to Pet. for Cert. 3a-4a. In recounting the events that preceded the search, the judge wrote that the officers “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.” Ibid. (emphasis added and deleted). However, at a later point in this opinion, the judge stated that the officers “initially knock[ed] on the door of the apartment unit and await[ed] the response or consensual entry.” Id., at 9a. This later statement is consistent with the testimony at the suppression hearing and with the findings of the state appellate courts. See 302 S.W.3d, at 651 (The officers “knocked loudly on the back left apartment door and announced 'police' ”); App. to Pet. for Cert. 14a (The officers “knock[ed] on the door and announc[ed] themselves as police”); App. 22-24. There is no evidence of a “demand” of any sort, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to our attention, the state court may elect to address that matter on remand.

Finally, respondent claims that the officers “explained to [the occupants that the officers] were going to make entry inside the apartment,” id., at 24, but the record is clear that the officers did not make this statement until after the exigency arose. As Officer Cobb testified, the officers “knew that there was possibly something that was going to be destroyed inside the apartment,” and “[a]t that point, . . . [they] explained . . . [that they] were going to make entry.” Ibid. (emphasis added). Given that this announcement was made after the exigency arose, it could not have created the exigency.

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Like the court below, we assume for purposes of argument that an exigency existed. Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.

The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

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