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Tim Bilecki

Search and Seizure

In Kentucky v. King, S. Ct. 1849 (2011), King conditionally pled guilty to numerous drug offenses after losing a motion to suppress evidence from a warrant less search. The Kentucky Court of Appeals affirmed, but the Supreme Court of Kentucky reversed.

In a controlled buy, police officers followed the suspect into a breezeway. One officer radioed to the pursuing officers that the suspect went into- the door on the right, however they did not hear the transmission. The officers heard a door shut just before they reached the breezeway and smelled burning marijuana coming from the door on the left. The officers hit the door as loud as they could and announced “this is the police,” or “police, police, police.” Immediately on announcing their presence, the police “could hear people inside moving things inside the apartment.

The officers testified they thought drug related evidence was going to be destroyed, so they announced they “were going to make entry inside the apartment.” Inside the apartment, police located many drugs, cash, and drug paraphernalia. King applied to suppress as the police created the exigency. The Supreme Court of Kentucky accepted and reversed the conviction announcing a two- part test for situations where police impermissibly create the exigency. First, law enforcement cannot “deliberately create the exigent circumstances with the bad faith intent to avoid the warrant requirement.” Next, even when there is no bad faith, the exigency exception does not apply where “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” Kentucky v. King, 302 S.W.3d 649, 656 (2010) (assuming, but not deciding, that there was an actual exigency in the case). The Supreme Court of Kentucky reversed under step two.

The issue before the Supreme Court was does the exigent circumstances exception apply in this case when police, by knocking on the door of the residence and announcing their presence, made the occupants to attempt to destroy evidence?

The Court held the police conduct was legal and the exigent circumstances exception applied. The Supreme Court of Kentucky was reversed (8-1 vote).

The Supreme Court began by explaining how exigent circumstances can be an exception to the warrant requirement under the Fourth Amendment. There are three kinds of exigencies; the third type is applicable in this case – the emergency aid exception, hot pursuit, and preventing the imminent destruction of evidence. The Court said that “‘warrantless searches are allowed when the circumstances make it reasonable,” so an exigency search is lawful if the police conduct preceding the exigency is reasonable. The Court assumed that an exigency actually existed, just like the Kentucky court. The question they analyzed was “under what circumstances do police impermissibly create an exigency?” In this case, “the police did not create the exigency by engaging in or threatening to engage in conduct that violates the Fourth Amendment, so their warrant less entry to prevent the destruction of evidence is reasonable and allowed.” King at 1858.

The Court noted three things in the record that supported their holding. First, the police did not violate or threaten to violate the Fourth Amendment, such as saying “they would break down the door if the occupants did not open the door voluntarily.” Second, the police did not “demand” entry into the apartment. Lastly, the police explained they were going to make entry after the exigency arose, so their comments could not have created the exigency. Id. at 1.863.

The Court’s ruling specifically rejected an earlier circuit split concerning the “police-created exigency” doctrine. The doctrine holds the exigency exception inapplicable if the police “created” or “manufactured” the exigency. The Court explained the different tests in the circuit courts for the police-created exigency exception and specifically rejected all of them when it held the real test was one of reasonableness. The court rejected these: bad faith; reasonable foreseeability; probable cause and time to secure a warrant; adherence to’ standard or good investigative tactics; and King’ s proposed test that would find the exigency improper where the police “engage in conduct that would cause a reasonable person to believe that entry is imminent an inevitable.” Id. at 1858-6l.

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