Up for argument before the Supreme Court next Wednesday is Kentucky v. King, raising the question of whether a search can be justified under the exigent circumstances exception to the warrant clause when the police create the exigency.  Oddly, the issue is framed thus:

Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?

The background is groaner.

Undercover police officers bought drugs from a suspect in an apartment hallway; the suspect then went into an apartment. The undercover called in the police to make the arrest, but the police did not hear which apartment the suspect entered. The police arrived in the hallway, but weren’t sure whether the suspect had entered the left apartment or the right apartment. They approached the left apartment and smelled marijuana coming from inside. The police knocked, announced that they were the police, and then heard something inside. After no one answered, the police forcibly entered the left apartment and found King smoking marijuana inside. The officers had chosen the wrong apartment: The person who had sold drugs had entered the right apartment. Nonetheless, King was then charged with marijuana offenses.

Yet again, ignorance by the police justifies more expansive conduct than would have been the case if they had heard which apartment the suspect entered.  Of course, if they failed to hear the undercover’s transmission properly, they could have just asked him to repeat it before acting, but nobody seems to be concerned with this aspect of the case.

Unusual for a Supreme Court case, the parties persist in a factual dispute as to what the officers actually did when the knocked on the apartment door.  The state argues that the officers “merely” knocked and announced.  The defense contends they knocked, announced that it was the cops and “demanded to let inside.”  The trial court found for the defendant’s version. 

Following the knock, announce and whatever, the testimony was that the officer “couldn’t tell what the sound was, but that the sound was ‘possibly consistent’ with the destruction of evidence.” 

Believing that they were in hot pursuit of a fleeing felon, that the felon had recently entered the left apartment, and that the felon was now destroying physical evidence of his crime of trafficking, the police officers entered the apartment.

Curiously, the greatest boon to warrantless police searches, the objective basis permitting such atrocities as pretext searches, disappears when subjective (I believed) bases serve the cause.

The law is already clear that police cannot manufacture an exigency in order to circumvent the warrant requirement.  The issue here is whether their knock, announce and whatever, constituted the creation of exigent circumstances, or just the sort of routine investigatory conduct that police do, mirroring what normal folks are allowed to do. 

After all, anybody can knock on a door and announce that someone is out there, so why shouldn’t the police be permitted to do so as well without rupturing the Fourth Amendment?  Anybody can knock on a door and ask (nicely) to speak with the good folks inside.  If the good folks inside aren’t in the mood to chat, they have the right to say “go away.”  The police have done nothing wrong, and nothing more wrong, than anyone else would be entitled to do.  They can’t be blamed for the occupants reaction to their knock.

Kentucky v. King is another in a line of cases that addresses the police under the fiction that they are no different than anyone else, and we are not merely entitled to, but in reality do, treat them no differently.  The phrase that immediately comes to mind is submission to the shield, the fact that most people will do as directed by the police for no better reason than their free will is overcome by police demands. 

While the factual dispute may seem critical to the legal analysis, it’s trivial in the context of the real world.  Loud banging on the door and screams of “Police” conveys as much of a message as is needed.  It really doesn’t matter a great deal what follows, as any non-comatose occupant should reasonably expect the door to come crashing down momentarily.

The justification for the claim of exigency is the reaction to the police mistaken choice of doors.  Noise is heard inside.  What noise isn’t clear, except that it could have been “consistent” with the destruction of evidence.  Does that mean “scurrying about,” or the flushing of a toilet perhaps?  Of course, such sounds are consistent with getting the kids, the dog, grandpa, out of the room before the police enter and start shooting.  Or that at the moment the police knocked, someone was on the toilet and would prefer not to be when their apartment is swarmed by black-jacketed SWAT officers.

In other words, following the police knocking and announcing, the only reaction that wouldn’t conceivably be “consistent” with the destruction of evidence is total silence.  Then again, if they listened at the door in advance and heard any sound at all, but only silence after their knock and announce, that too would be suspicious and spun into a justification for entry, as they were silently destroying evidence and trying to conceal their presence.  That makes them really shifty criminals rather than dumb, obvious criminals. 

Of course, the occupants could, upon hearing the police knock and announce, respond that they are coming to open the door and do so.  But then, the underlying premise is that they have the right to ignore the knock and announce, in the absence of a warrant.  So if the only “proper” course is compliance with the implicit demand for entry, they lose either way.  There is no right to ignore the cops at the door, as one would have if was anyone else.

This case thus really raises no issue at all, which means that its hearing by the Supreme Court can’t be good.  The fiction that reasonable people can simply ignore the police, parsing their words (and the volume of their delivery) for commands versus polite requests and taking the long view from the bench of how reasonable people behave when confronted with the shield is absurd.  Try exercising all those rights the Supreme tell us we possess to be free of police overreaching.  Just be sure to have your video camera at the ready and a fast uplink to Youtube.

Bear in mind as your dog/child/grandparent lies on the floor bleeding out that you can take comfort in embracing the same legal fiction as the Supreme Court of the United States, that you can honorably ignore the banging on your door of police without fear.  After all, that’s your right.