The Exigent Circumstances Exception After Kentucky v. King
By Michael T. Pettry, J.D.
On a daily basis, law enforcement officers face situations requiring them to make split-second decisions under tense, uncertain, and often chaotic circumstances. Fortunately, courts, recognizing the realities of modern policing, have provided officers with the legal guidance they need to deal with myriad situations and also have ensured the protection of individual liberties. However, one issue that lacks a clear consensus is when and under what circumstances police are permitted to rely upon the exigent circumstances exception to the Fourth Amendment’s warrant requirement when their actions may have caused the exigency.
In its 2010 term, the Supreme Court in Kentucky v. King addressed this issue and in doing so provided law enforcement officers with clear guidance as to how they properly can handle some of the most important issues they confront every day.1 This article will examine the legal issues implicated by the holding in King, lower courts’ previous treatment of this issue, and an explanation of the legal standard the Court set forth for officers confronted with situations requiring immediate entry into areas protected by the Fourth Amendment.
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.”2 Thus, the text of the amendment offers two distinct requirements regarding searches: 1) they must be reasonable and 2) a warrant may not be issued unless probable cause is established and the scope of the search is specified with particularity. Although the amendment does not specifically state when and under what circumstances a warrant must be obtained, the Supreme Court has indicated that “searches and seizures inside a home without a warrant are presumptively unreasonable.”3
Exigent Circumstances Exception
In spite of the presumption that a police officer’s entry into a home without a warrant is unlawful, both state and federal courts have carved out a number of exceptions to this general rule. Included among the judicially recognized exceptions to the Fourth Amendment’s warrant requirement is the exigent circumstances exception. The U.S. Court of Appeals for the First Circuit in United States v. Rengifo indicated that “[e]xigent circumstances occur when a reasonable officer could believe that to delay acting to obtain a warrant would, in all likelihood, permanently frustrate an important police objective, such as to prevent the destruction of evidence relating to criminal activity or to secure an arrest before a suspect can commit further serious harm.”4
Police-Created Exigency Doctrine
Although the Supreme Court recently had provided clear guidance to law enforcement officers regarding the circumstances under which they could make a warrantless entry of a dwelling to render emergency aid, it had yet to address the specific issue of whether the exigent circumstances exception to the Fourth Amendment’s warrant requirement applies when police officers’ actions cause the exigency.5 Under this so-called police-created exigency doctrine, a number of lower courts had held that officers could not rely upon this exception if they had created the very exigency which they sought to use to justify acting without a warrant.6 Other courts did not find a Fourth Amendment violation simply on the grounds that officers created the exigency.7
Special Agent Pettry is a legal instructor at the FBI Academy.
Given the context in which the issue may arise, this left law enforcement in a difficult predicament given the unsettled nature of the law. The Supreme Court’s decision in King provides welcome clarification of the circumstances under which law enforcement is permitted to rely upon the exigent circumstances exception.
In King, officers in Lexington, Kentucky, arranged for the controlled purchase of crack cocaine outside of an apartment complex.8 After completion of the deal, an undercover officer monitoring the transaction from a nearby location instructed the uniformed officers with whom he was working to apprehend the suspect. The undercover officer informed his fellow officers that the subject was moving quickly toward the breezeway of a nearby apartment building and that they should “hurry up and get there” before the individual entered an apartment.9
After receiving the undercover officer’s radio transmission, the uniformed officers drove into the nearby parking lot, exited their vehicles, and ran to the breezeway. As they entered the breezeway, the officers heard the sound of a door shutting and detected the strong odor of burnt marijuana. At the end of the breezeway, the officers discovered that there was an apartment on each side of the hallway. Although the undercover officer who had been monitoring the transaction had alerted the uniformed officers that the subject had entered the apartment on the right, the officers could not hear the transmission as they already had exited their vehicles. The officers focused their attention on the door on the left side of the breezeway as it appeared to be the source of the pungent odor.10
The officers then banged on the door “as loud as [they] could” and stated words to the effect of “This is the police” or “Police, police, police.”11 One of the officers later testified at a suppression hearing that as soon as they announced their presence, they could hear people inside the apartment moving and sounds that appeared to reflect that items within were being moved.12 Believing that the sounds indicated that drug-related evidence was about to be destroyed, the officers announced that they “were going to make entry inside the apartment.”13 One of the officers kicked in the door, and they entered.
Once inside, the officers encountered three people in the front room, including the defendant, Hollis King. While performing a protective sweep of the apartment, the officers saw marijuana and powdered cocaine in plain view. A subsequent search yielded additional drugs, cash, and drug paraphernalia.14
Following his indictment for drug-related offenses, King filed a motion to suppress the evidence seized by the officers following their warrantless entry into the apartment. Both the trial court and the Kentucky Court of Appeals overruled his motion.15 However, the Supreme Court of Kentucky reversed the lower courts, finding that although the officers did not act in bad faith in entering the apartment, the exigent circumstances exception could not justify the search because it was reasonably foreseeable that the occupants would destroy evidence when the police knocked on the door and announced their presence.16
In reaching its decision, the Kentucky Supreme Court adopted a two-part test.17 The first prong required courts to determine “whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.”18 If so, they would be prevented from relying on the resulting exigency to justify the warrantless entry.19 Even if it was shown that the police had not acted in bad faith, the second prong of the test required courts to examine whether “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry.”20 If the officers’ tactics had created the exigency, the warrantless entry would be unjustified.21
The Commonwealth of Kentucky appealed the decision to the Supreme Court, which agreed to hear the case. At the outset of its analysis of the case, the Supreme Court noted that the Fourth Amendment’s warrant requirement is subject to certain exceptions, such as 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.”22 One such exigency would be the need to prevent the “imminent destruction of evidence.”23 Although this specific type of exigency has long been recognized by the judiciary, many courts have held that it should not apply in situations where the police “created” the exigency to justify acting outside of the judicial process.
As the U.S. Court of Appeals for the Sixth Circuit stated in its decision in United States v. Chambers, “for a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves.”24 Similarly, the U.S. Court of Appeals for the Fifth Circuit noted in United States v. Gould that “although exigent circumstances may justify a warrantless probable cause entry into the home, they will not do so if the exigent circumstances were manufactured by the agents.”25
Although courts had held that officers could not rely upon the exigent circumstances exception to the warrant requirement if they had created the exigency, they recognized that something more than a general fear of detection or discovery by the police must have caused the destruction of evidence.
As the U.S. Court of Appeals for the Eighth Circuit observed in United States v. Duchi, “in some sense the police always create the exigent circumstances that justify warrantless entries and arrests. Their discovery of the criminal causes him to flee; their discovery of the contraband causes the criminal’s attempt to destroy or divert the evidence.”26 The Supreme Court recognized this common sense principle in its opinion in King by noting that individuals engaged in illegal activity often will destroy evidence if they have concerns that it will be recovered by law enforcement.
In King, the Supreme Court recognized the danger in adopting a rule that would prevent the police from relying upon the exigent circumstances exception to prevent the destruction of evidence if their actions had played a role in creating the exigency. The Court noted that although a number of federal and state courts had considered this issue, they had employed multiple tests using different legal theories to decide such cases. In rejecting several of these tests due to their adoption of legal requirements that it characterized as “unsound,” the Supreme Court reaffirmed the long-established legal principle that “warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement.”27
In explaining its reasoning in King, the Court examined several of the tests used by courts when presented with challenges to searches under the police-created exigency doctrine. As previously noted, some courts, including the Kentucky Supreme Court, had used a so-called bad faith test. The Court expressly rejected this test as it was “fundamentally inconsistent” with its previous Fourth Amendment decisions.28 Those decisions stand for the proposition that the appropriate focus in evaluating the actions of a law enforcement officer under the Fourth Amendment is considering whether the actions are objectively reasonable at the time they are taken, not the subjective motivations of the officer.
The Court also examined the use of a reasonable foreseeability test, such as that relied upon by the Supreme Court of Kentucky in its decision finding that the Lexington officers had improperly created an exigency to gain entry into the apartment. In its criticism of the reasonable foreseeability test, the Supreme Court noted it previously had rejected the notion that “police may seize evidence without a warrant only when they come across the evidence by happenstance.”29 For example, in the oft-cited case of Horton v. California, the Supreme Court held that police may seize evidence in plain view even though an officer may be “interested in an item of evidence and fully expects to find it in the course of a search.”30
The Court also was concerned that the use of a reasonable foreseeability test to evaluate officers’ actions under the exigent circumstances exception would lead to an unacceptable degree of unpredictability. Rather than focusing on whether the officers’ actions were objectively reasonable at the time they were taken, courts instead would be required on a case-by-case basis to “quantify the degree of predictability that must be reached before the police-created exigency doctrine comes into play.”31 Such an approach likely 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 upon what the officers knew at the time.”32
Another test used by courts applying the police-created exigency doctrine focused on whether the officers acted without a warrant even after they had developed sufficient probable cause to search a specific location. Such situations sometimes arise with a so-called knock-and-talk scenario where the police knock on the door of a particular residence and ask to speak with an occupant or seek consent to search. In rejecting such an approach, the court recognized that “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.”33 The Court further added that “[f]aulting 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.”34
Finally, the Supreme Court rejected a test used by some lower courts that would deprive officers of the ability to rely upon the exigent circumstances exception when it is determined that their investigation departed from “standard or good law enforcement practices.”35 In its criticism of this test, the Court noted that not only would it fail to provide clear guidance to law enforcement officers but it also would require an inappropriate after-the-fact analysis of decisions that should remain within the province of law enforcement personnel.36
Also, the Court declined to adopt a rule that “law enforcement officers impermissibly create an exigency when they engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.”37 King had argued that courts should consider such factors as the officers’ tone of voice in announcing their presence and the forcefulness of their knocks.38 However, the Court noted that such a test likely would interfere with officers’ ability to properly respond to an emergency situation as it would require them to consider subtle and ill-defined standards of conduct.39 For example, officers would be required to guess as to whether the tone and volume of their voice or the force of their knocking had caused them to violate the police-created exigency rule. Moreover, courts reviewing the officers’ conduct would have great difficulty in determining whether the police had crossed some poorly defined and nebulous threshold.
The Court rejected not only the test proposed by King but also those used by lower courts to decide police-created exigency issues. The Court first assumed for purposes of argument that exigent circumstances existed at the time the officers made the decision to enter King’s apartment without a warrant.40 Once this threshold issue was established, the Court needed only to decide the fairly narrow issue of under what circumstances police impermissibly create an exigency.41 The focus of the Court’s analysis was whether the police violated the Fourth Amendment or threatened to do so prior to forcing entry into the apartment. Although the record indicated that the police had banged loudly on the door to the apartment and announced their presence, those actions are not outside the bounds of accepted law enforcement conduct under the Fourth Amendment. The result would have been different had the police threatened the occupants to “open the door or else” or otherwise demanded entry to the apartment.
In holding that the exigent circumstances exception applies as long as the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment, the Court eliminated the confusion inherent in the tests used by the lower courts. The rule announced by the Court clearly allows officers confronted with circumstances, such as those present in King, to take appropriate steps to resolve the emergency situation. However, officers must be mindful of the fact that they cannot demand entry or threaten to break down the door to a home if they do not have independent legal authority for doing so. According to the Court, to do so would constitute an actual or threatened violation of the Fourth Amendment and, thereby, deprive the officers of the ability to rely upon the exigent circumstances exception.
The Court’s decision in King provides much-needed guidance for officers in dealing with many of the situations they encounter on a regular basis. Provided their actions fall within established legal standards of conduct under the Fourth Amendment, officers no longer will have to guess as to whether they impermissibly caused an exigency, thereby depriving them of the ability to take appropriate action. As with all exceptions to the warrant requirement, officers should recognize that the burden remains on the government to justify fully its actions under the Fourth Amendment. Moreover, officers should be aware that their actions may be constrained by other applicable constitutional protections.42
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 131 S.Ct. 1849 (2011).
2 U.S. Constitution, Fourth Amendment.
3 Brigham City v. Stuart, 547 U.S. 398, 403 (2006), quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004).
4 858 F.2d 800, 805 (1st Cir. 1988).
5 See Brigham City, supra; and Michigan v. Fisher, 130 S.Ct. 546 (2009). See also, Michael T. Pettry, “The Emergency Aid Exception to the Fourth Amendment’s Warrant Requirement,” FBI Law Enforcement Bulletin, March 2011, p. 26.
6 See United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.1986); United States v. Richard, 994 F.2d 244, 249-250 (5th Cir. 1993); and Mann v. State, 357 Ark. 159, 161 S.W. 3d 826, 834 (Ark. 2004).
7 See United States v. MacDonald, 916 F.2d 766, 772 (2nd Cir. 1990); State v. Robinson, 327 Wis.2d, 302, 326-328; and 786 N.W. 2d 463, 475-476 (Wis. 2010).
8 131 S.Ct. 1849, 1854 (2011).
11 Id. (internal quotations omitted).
14 Officers subsequently determined that the subject involved in the drug buy actually had entered the apartment on the right.
15 Id. at 1855.
16 King v. Commonwealth, 302 S.W.3d 649, 656 (Kentucky, Jan. 21, 2010).
22 King, at 1856 (internal quotations omitted).
24 395 F.3d, 563, 566 (6th Cir. 2005).
25 364 F.3d 578, 590 (5th Cir. 2004) (internal quotations omitted).
26 906 F.2d 1278, 1284 (8th Cir. 1990).
27 King at 1858.
28 Id. at 1859.
30 496 U.S. 128, 138 (1990).
31 King at 1859.
32 Id. at 1860.
34 Id. at 1861.
37 Id.(internal quotations omitted).
40 Id. at 1862.
42 Officers should note that although their actions may be viewed as reasonable under the Fourth Amendment, an individual still may allege violations of other constitutional guarantees, such as the Equal Protection Clause of the Fourteenth Amendment, if it appears that the actions of law enforcement were motivated by such factors as race or ethnicity.
“The Supreme Court’s decision in King provides welcome clarification of the circumstances under which law enforcement is permitted to rely upon the exigent circumstances exception.”