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Common Misreadings of Kentucky v. King(Police and warrants)
The Volokh Conspiracy ^ | 19 May, 2011 | Orin Kerr

Posted on 05/31/2011 8:10:13 AM PDT by marktwain

Linda Greenhouse has a post up about the recent decision in Kentucky v. King that I fear misreads the case in the course of criticizing it. I’ve seen the same apparent misreading elsewhere from some pretty sophisticated and credentialed sources. I wanted to say a bit about why I think Greenhouse and others are misreading the case and why I think the case is much narrower than many seem to think.

First, some background. The Supreme Court has long recognized that the police can make warrantless searches and seizures when justified by some emergency — so-called “exigent circumstances.” The basic idea is that the police can search without a warrant when the totality of the circumstances make the warrantless entry reasonable. Lower courts have also developed an exception to reliance on exigent circumstances: The police can’t create exigent circumstances and then rely on the exigent circumstances they have created in order to justify a warrantless search. The doctrine of police-created exigent circumstances essentially removes certain facts from the totality-of-the-circumstances inquiry: When deciding whether the circumstances justify a warrantless entry, the police can’t consider any of the circumstances that were police-created. Courts have to subtract out the police-created exigencies from the rest of the facts before assessing whether a particular police-created exigency was reasonable. The question in King was, what’s the test for what should be subtracted out?

In King, the police were looking for a drug dealer who they thought had just run into an apartment. They smelled marijuana coming from inside, knocked and announced their presence, and then heard noises inside that they thought were in response to their knock and announce and signified the likely destruction of the drugs. Although the police normally need a warrant to enter, they relied on the noises inside to say that there were exigent circumstances. The defense argued that the noises were a police-created exigency, and therefore could not be considered as part of the totality of the circumstances. The Kentucky Supreme Court crafted a two-part test for what should be subtracted out as police-created:

[F]or Kentucky, we adopt a two-part test. First, courts must determine “whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.” Gould, 364 F.3d at 590. If so, then police cannot rely on the resulting exigency. Second, where police have not acted in bad faith, courts must determine “[w]hether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry.” Mann, 161 S.W.3d at 834. If so, then the exigent circumstances cannot justify the warrantless entry.

The Kentucky Supreme Court applied that test to the facts and concluded that the police could not rely on the sounds of movement inside the home after the police knocked and announced their presence as evidence of exigent circumstances. Although the police had acted in good faith, they had announced their presence “unnecessarily.” “[T]his create[d] the fear that evidence will be destroyed,” and the police could not rely on the natural consequences of that fear as the basis for the exigency. Without that evidence, there were no exigent circumstances based on the fear of destruction of the drugs. The Supreme Court granted cert, although the Court expressly limited the cert grant to the question of what is the proper test for police-created exigent circumstances. The Court the handed down its new rule: facts are subtracted out from the totality inquiry — that is, the usual exigent circumstances approach is modified due to police-created exigencies — only if the police violated the Fourth Amendment or threatened to violate it. The vote was 8–1, with only Justice Ginsburg dissenting.

I go through all of this in detail to point out what King did and did not consider. Importantly, King did not consider whether the facts of the King case amounted to exigent circumstances. The Court did not consider whether the warrantless entry was constitutional. Instead, the limited cert grant addressed only a small piece of the puzzle: The Court only considered the right test for police-created exigent circumstances — the part to be subtracted from the totality of the circumstances — and then remanded the case back to the Kenucky courts. Here’s how the U.S. Supreme Court expressed it in the introduction to its opinion:

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.

Thus, the Court’s conclusion was that all the facts could be considered — the usual “exigent circumstances rule” applies — without subtracting out the evidence of noises inside the home. (You can also see the limited nature of the issue from the oral argument transcript: At page 29, Counsel for King starts off by arguing that there were no exigent circumstances. The Justices have to stop her and direct her to focus on the test for police-created exigencies.)

I fear this limited scope has been misunderstood in some of the coverage of the King case. Some have read the King case as if the Court concluded the search was constitutional. For example, in Greenhouse’s post, she writes:

The question for the Supreme Court in a case decided on Monday was whether the police behavior in this case, Kentucky v. King, came within a recognized exception to the warrant requirement, the “exigent circumstance” created by the likely imminent destruction of criminal evidence. . . . .

What the court held, in an opinion by Justice Samuel A. Alito Jr., is that warrantless entry to prevent the destruction of evidence is justified as long as the police “did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.”

Importantly, though, the Court did not hold that the warrantless entry was justified — much less that warrantless entries are generally justified — in such circumstances. The Court only held that the usual exigent circumstances rule applies: That is, whether or not there were exigent circumstances, the Kentucky courts should have considered the totality of the circumstances instead of subtracting out the reaction inside the house to the officers’ knocking and announcing their presence.

TOPICS: Constitution/Conservatism; Government; News/Current Events; Philosophy
KEYWORDS: banglist; constitution; search; warrant
Worth reading to understand what the court ruled.
1 posted on 05/31/2011 8:10:13 AM PDT by marktwain
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To: marktwain

For most folks the case should stop at the point where the cops are in hot pursuit.

2 posted on 05/31/2011 8:17:47 AM PDT by muawiyah
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To: marktwain

Uh, yeah... That’s interesting in that, if what Volokh is correct, I guess Ruth Bader Ginsburg was dissenting on a completely different case...

Her lone dissent, as reported in newspapers, says:

“In a lone dissent, Justice Ruth Bader Ginsburg said she feared the ruling in a Kentucky case will give police an easy way to ignore the 4th Amendment. “Police officers may not knock, listen and then break the door down,” she said, without violating the 4th Amendment.”

“Ginsburg [...] said the court’s approach “arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases.” She said the police did not face a “genuine emergency” and should not have been allowed to enter the apartment without a warrant.”

So, whose side are we to believe? Is Volokh saying that Ginsberg is experiencing some form of amentia and wrote a dissent that didn’t dissent with the majority?


3 posted on 05/31/2011 8:37:23 AM PDT by DoctorBulldog (A lot of people probably just negated my comment while I was hunting and pecking at the keyboard!)
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To: DoctorBulldog

Erratum: “if what Volokh is correct” should be: “if what Volokh says in his interpretation is correct”


4 posted on 05/31/2011 8:39:52 AM PDT by DoctorBulldog (A lot of people probably just negated my comment while I was hunting and pecking at the keyboard!)
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To: marktwain; skinkinthegrass
wow...i thought the 'suspect' was seen buyin coke, so the *smell* of MJ coming from an 50/50 shot of which apartment gave them probable cause, being as though they obviously lost sight/pursuit...

all that aside, what exactely does 'destroying evidence' sound like on the other side of a closed door ??? running the garbage disposal or flushing the toilet ???

when i do the dishes, am i no longer secure in my own person/papers/domicile ???

5 posted on 05/31/2011 9:30:59 AM PDT by Gilbo_3 (Gov is not reason; not eloquent; its force.Like fire,a dangerous servant & master. George Washington)
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To: Gilbo_3

Just think, if Marijuana were legalized most of this stuff would stop. Then again, just think of all the SWAT teams with nothing to do. No dress up like soldiers, then go try to act like the are. And just for the record. I don’t use Marijuana and never have. The price is too high on civil liberties and the lives of innocent citizens to let this lethal nonsense continue.

6 posted on 05/31/2011 9:38:33 AM PDT by vette6387 (Enough Already!)
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To: marktwain

It is the tradition that a Kentuckian never runs. He does not have to...he is not obligated to retreat, nor to consider whether he can safely retreat, but is entitled to stand his ground, and meet any (life-threatening) attack made upon him with a deadly weapon... Kentucky Court of Appeals. Gibson v. Commonwealth, 34 SW 936 (Ky. 1931)

7 posted on 05/31/2011 9:56:38 AM PDT by WKUHilltopper (Fix bayonets!)
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To: vette6387

>Then again, just think of all the SWAT teams with nothing to do.

Oh, come on... there’s plenty of no-longer-enlisted marines they can murder.

>The price is too high on civil liberties and the lives of innocent citizens to let this lethal nonsense continue.

Sadly, that is precisely why the Powers That Be will *NEVER* allow the cessation of the War on Drugs: it would cost them too much power.
They’re all about Power, Mr. Rearden, and they mean to have it...

8 posted on 05/31/2011 11:25:14 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark
you just know the 'gunwalker' deal was meant to ramp up the WOsD as well as the war on the 2A...

2 birds, one stone kinda thing...the lords are drunk on power and scared of losing it...

9 posted on 06/01/2011 5:07:21 AM PDT by Gilbo_3 (Gov is not reason; not eloquent; its force.Like fire,a dangerous servant & master. George Washington)
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To: vette6387

The war on drugs has been a terrible failure, just as the war on alcohol was during prohibition. If drugs were legalized the people who use illegally now would be within the law and half of our prison population could go home.

The logic is that drugs ruin the lives of people so we must not allow the people to have them. I too believe that drugs ruin lives, just like alcohol does but neither of those is nearly as good at ruining a life as a prison sentence.

Getting rid of half of our prisons and all of our SWAT teams would be worth allowing those who would want to ruin their lives to go ahead and do it.

Think of what getting rid of the drug cartels would do for Mexico, we could do it by the stroke of a pen in a matter of months they would all be gone.

When people finally get enough of alcohol they go into rehab and try to get off of it, about 1/3rd of those who try succeed. While I have never tried drugs, when I was a young man I was a submarine sailor so to keep my pro pay I had to abstain but, I sure tried alcohol in a big way.

People will do what they want to do and break the law if necessary. I started smoking when I was 11 and drinking when I was 16. Yes I had to hide from the law and yes I had a fake ID but if it had been legal perhaps I would have had a drink at home where my parents could make sure I didn’t over-do it.

The war on drugs is just wrong. Drugs are wrong but the war on them is much worse.

10 posted on 06/01/2011 5:52:41 AM PDT by JAKraig (Surely my religion is at least as good as yours)
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To: DoctorBulldog
-- Erratum: "if what Volokh is correct" should be: "if what Volokh says in his interpretation is correct" --

More erratum; the author is Orin Kerr, not "Volokh."

11 posted on 06/01/2011 6:05:59 AM PDT by Cboldt
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To: Gilbo_3; marktwain; IMissPresidentReagan; CourtneyLeigh; Just Kimberly; Knuckrider; MBohman; ...
thanks, for the ping, g3
A Kentucky Ping.

...for those interested. :D

12 posted on 06/01/2011 9:51:06 AM PDT by skinkinthegrass (You do not have to smear (Pharaoh / Imam) Obama w/ lies....the truth does a fine job. :)
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