The Supremes have spoken, and when the decision is penned by Justice Sam Alito, it’s not a great sign. But Kentucky v. King could have been worse. It also could have been better. Some of the commentary, taken from writings about the decision rather than the decision itself, have demonstrated a rank misapprehension of what the decision says.
The issue was limited: What police conduct constitutes the unlawful creation of exigent circumstances such that the police cannot lawfully enter a residence without a warrant.
At Volokh Conspiracy, Orin Kerr sums up the decision well:
In this case, officers entered an apartment without a warrant after smelling marijuana inside, knocking, and hearing noises inside. The Kentucky Supreme Court had assumed that the police had exigent circumstances in those facts, but then concluded that the police had created the exigency — and therefore could not rely on it to make a warrantless entry — by in effect inducing King inside to react to the police outside and react in a way that created the exigency. In its opinion today, the Supreme Court disagreed:
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).
In anticipation of oral argument, I framed the argument this way:
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.
The decision took the path anticipated, that engagement in conduct that does not violate the 4th Amendment, but results in some reaction that gives rise to what may constitute exigent circumstances, does not fall within the exception to the exception to the rule. It’s not that I’m prescient, but that I couldn’t imagine any reason to grant cert if not to do some harm to the doctrine.
This case does not hold that noise or silence, toilet flushing or lack thereof, whispered voices or screams, constitute exigent circumstances. That question has been kicked back to the Kentucky Supreme Court on remand. While it may eventually come to pass that it’s all a big Catch-22, we’re not there yet. Don’t give them any more than Alito does.
The decision does, however, hold that police can take action that gives rise to exigent circumstances, whatever they may eventually be held to be, and lawfully take advantage of it to enter a residence without a warrant. This is bad enough.
The tipping point in Justice Alito’s ruling is whether the action taken by the cops is, or threatens to be, unconstitutional in itself. If the cops threaten to break down the door and come in, then they would be unlawfully manufacturing exigent circumstances. If the cops merely knock and announce that they’re cops, then not.
Aside: The Kentucky court found that the cops did, indeed, demand entry into the apartment. Justice Alito disappeared this irksome detail by judicial magic, sprinkling verbal fairy dust over the facts.
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.
His “passing statement” is anyone else’s express finding of fact. Try using this trick before the court the next time a great decision has a nagging detail that kills your position. Tell the judge that Justice Alito sent you and see how that works.
There is an obvious flaw in the decision, even assuming that the distinction between lawful and unlawful conduct giving rise to exigent circumstances, whatever they may be, makes any sense. The court pretends that the sort of conduct that regular folks engage in regularly, like knocking on a door and saying, “hi, there, it’s Joe,” works the same for the police. It doesn’t. Only a fool, or someone inclined to overlook reality, would think so.
Whether it’s submission to the shield, or revulsion to the shield, the shield gives rise to special reactions. Cops know it and depend on it. The implications of a straight knock and announce are pretty clear to most subjects of the sovereign. React or suffer the consequences. And so they do.
Then there is the convenient recollection, as occurred in the underlying case here, where the cops don’t remember making any demands, though the people inside remember them clearly. The police officer may testify that he knocked nicely, announced his presence in dulcet tones, and never once threatened to shoot through the door and kill everyone inside if they don’t open the door immediately. The defendant’s testimony to the contrary stands little chance of prevailing. That’s just how it works.
So again, the Supremes have developed a construct which bears little resemblance to life on the street, or in the hallways of apartment buildings as the case may be. Ruth Bader Ginsberg knows otherwise, but she’s a loner on this one.
The saving grace, if that phrase applies at all, is that the Court didn’t hold that the sounds emanating from within, or lack thereof, was obviously an indication of the destruction of evidence. It will take a case or two more before we reach that point. Let’s make them work for it.
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“Justice Alito disappeared this irksome detail by judicial magic, sprinkling verbal fairy dust over the facts.”
Wonderful writing this morning, Scott.
My pals at S’bucks this morning were pretty uniformly disgusted by this decision this AM and these are fairly astute laymen from both the right and left. Their question is: is there any 4th amendment warrant question remaining? Yeah, a bunch of guys sit around drinking coffee speculating on just such things–and, they aren’t drug dealers.
Of course my friends were conflating this Kentucky decision with “something [they] heard” about a “supreme court” decision from Indiana where the cops barge into a guy’s house while he tried to bar the door (Barnes v. State,)
I think it’s remarkable that some non-lawyers can feel like the constitution is being gutted even if the nuances are lost on them. “Verbal fairy dust” only goes so far.
Seven others joined Sam’s magical opinion, including Obama appointees Kagan and Sotomayor, and Clinton pick, “liberal” Steven Breyer. Once government lawyers, always government lawyers?
“The saving grace, if that phrase applies at all, is that the Court didn’t hold that the sounds emanating from within, or lack thereof, was obviously an indication of the destruction of evidence. It will take a case or two more before we reach that point. Let’s make them work for it.”
Better yet: let’s hope the issue comes up next time in the context of a civil case where it turns out that the residents did not have any weed or coke, but got proned out in their bathroom anyway. Better facts will lead to a better result.
I also read the article about this case this morning on the portal/blog Lucianne.com. What’s really encouraging to me is that all but one of the numerous commentors (probably an undercover LEO) were against the opinion, big time.
As a blogger and activist, my goal has been to shine the light on police abuses and help conservatives understand that cops are union thugs just like the other government union thugs they oppose.
Let’s face it: with the defense bar more concerned with leftist economic policy and enhancing executive branch powers when one of their idols is in office than with civil liberties, and with “conservatives” into their law and order bunk, the civil liberties situation is hopeless from a public choice theory analysis.
But conservative reaction I’ve seen to this decision and the Indiana psycho-ruling are starting to make me cautiously optomistic. Emphasis, of course, on the “cautiously” part.
True dat. But the issue will arise 20 times in criminal before a civil case makes it past depositions, and the only time a criminal case makes it to court is when they find the nasty stuff.
yes, but cert. is discretionary, so SCOTUS can pick the relatively rare civil case if it wants, and they should exercise their discretion in this way here for reasons of policy.
appropos, Alito told the St. Louis Dispatch that contrary to reports, circa around the time he was nominated to the SC–that he once represented the Chamber of Commerce–he never worked a day in his life. He’s a government lawyer. Har, har…good one.
Yes, SCOTUS can pick the rare case to give us the big win.
Conservative reaction to this kind of decision will reverse as soon as we have a Republican president, just as it has for the last several reversals in my lifetime.
Sir, when you turned us on (no pun intended) to Packratt’s project IE Injustice Everywhere we were & continue to be baffled at the amount of warrant-less / no knock entries being carried out and ok’d in the U.S.A.
Would you agree that since it’s their word against everyone’s it might be a good investment to contract with an off-site security video monitoring service? Thanks.
On a cost-benefit analysis, no. Chances are still not particularly good that any individual will be the victim of an unlawful police entry or search.
But for those who have experienced the joy, well, imagine how wonderful it would have been to have it recorded.
The opinion unduly muddies the issue as to whether “probable cause” of evidence of a crime in a dwelling is required in order for the exigent circumstances (based on possible destruction of evidence) exception to kick in. To put it a simpler way, if the police don’t have sufficient facts to get a search warrant for a dwelling, can they still use the exigent circumstances (based on destruction of evidence) to go in.
Now, in King, the police did have probable cause, which was based on the smell of marijuana smell and on the fact that the drug dealer vanished in the vicinity of the front door of the unit. No one seriously argues that police would have been refused a warrant had they sought one on these bases. But was this required for the police to invoke exigent circumstances in King? The SCOTUS opinion carefully evades this important issue.
In one part of the opinion, the rhetorical question is raised as to whether the police could have gone in if marijuana had not been smelt. This is an important question that should not merely been raised rhetorically, but ANSWERED (preferably with a “no” answer). In fact, that part of the opinion draws the tension further by rhetorically asking: what if no marijuana had been smelt and there were 20 units into which the drug dealer could have disappeared? Would a toilet flush in any of those 20, non-mj-smelling units have served to allow police entry? But, again, the court does not answer this question. SCOTUS was unwise and wrong not to answer this question.
It should be decided whether or not probable cause is a threshold requirement for exigent circumstances (based on destruction of evidence) to apply. That should have been answered long before King, but it certainly should have been answered in King. It was silly for Justice Alito to raise this issue and then not answer it.
The question of whether the exigency must rise to the level of probable cause wasn’t addressed in King, and given that they kicked the decision back to Kentucky to determine whether it was exigency at all, it’s likely a good thing. I would much prefer it be left alone than put in the hands of Sam Alito.
I can understand that. To try to put a positive spin on my point, if I were the judge in an exigent circs (destruction of evi variety) case, I would now say:
Probable cause must be required as a preerequisite to exigent circumstances precisely because police are free to create the circumstances. If exigent circs did not require probable cause then police would be incentivized to routimely try to create the appearance of exigent circumstances not merely to circumvent the burdens of the warrant requirement, but rather to Constitutionally justify a search that they would simply not be able to justify to a magistrate even if they could freeze time and take as long with the warrant application and service as they needed.
I know that you know that “probable cause” is needed for exigent circumstances, but it is amazing the lengths that Alito went to in the opinion to avoid acknowledging that. Some are likely to take it as a negative pregnant.