Monday, May 23, 2011

A new era for exigent circumstances

By Professor Marcy Strauss

This is the first in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

The Supreme Court's 8-1 decision in Kentucky v. King has been described by some bloggers, pundits and scholars as being a serious blow to the Fourth Amendment and its protection of the privacy of the home, and by others as a narrow, fairly insignificant decision. The truth, as it often does, may lie somewhere in between predictions of doom and irrelevancy.

The issue in King was one that the lower courts had grappled with: does the "exigency exception" to the warrant requirement apply when the police "create their own exigency?" (and what does it mean to create the exigency?). In King, police officers pursued a suspected drug dealer into an apartment complex, briefly lost sight of him, but detected the very strong odor of burnt marijuana coming from behind one of the doors. At this point, the officers had several options. Instead of pursuing one option -- staking out the apartment and going for a warrant -- the officers banged on the door and announced their presence. Hearing "people moving and things being moved" led the officers to believe that drug-related evidence was about to be destroyed, and thus, the police made a warrantless entry into the home. As a result of that entry, they didn't find the man they were looking for originally (he had, in fact, gone in a different apartment), but did find marijuana and cocaine.

The lower state courts had found that exigent circumstances justified the warrantless entry. Traditionally, police officers cannot enter a home without a warrant, no matter how strong the belief that evidence or contraband was contained within the home, subject to a few narrow exceptions. One exception is exigent circumstances. On a very basic level, the exigent circumstance exception to the warrant requirement makes perfect sense: If there is no time to get a warrant, it should not be required that the police obtain one. The simple example I give my students is this: If a police officer is walking the beat, and hears gunshots fired from an apartment, surely we want that officer to rush into the apartment rather than head for the precinct to procure a warrant. But once you get beyond an example like this, tough questions abound. One of the most widely litigated issues among the lower state and federal courts was whether the exigency exception applies when the police "created their own exigency." For example, it was argued here, and the Kentucky Supreme Court agreed, that the police cannot deliberately create exigent circumstance with the bad-faith intent to avoid the warrant requirement, and moreover, even without bad faith, the police cannot rely on exigent circumstances if it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances. Applying that standard, the Kentucky Supreme Court held that although there was no bad faith here, it was reasonably foreseeable that the occupants would attempt to destroy evidence when the police officers chose to knock on the door and announce their presence. Hence, the police created their own exigency and the warrantless entry was, therefore, unconstitutional.

The Supreme Court reversed, and did so with only one dissent (Justice Ginsburg). In an opinion by Justice Alito, the Court held that a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. So, since knocking on a door and announcing your presence is lawful behavior -- it does not violate the Fourth Amendment -- the police did not create their own exigency.

In rejecting the Kentucky Supreme Court's approach (and different approaches suggested by other courts), the Court made typical arguments that are familiar to Fourth Amendment scholars. First, a test that considers bad faith would run afoul of the Court's persistent and consistent insistence that the judiciary is ill equipped to consider the subjective motivation of officers. Second, a test that considered whether it would be reasonably foreseeable that the police tactics would create exigent circumstances would place the judiciary in a position it should not be in -- that of circumscribing or second guessing police tactics, particularly those tactics that must be decided on the spot, in a rapidly changing and potentially dangerous environment. And third, the Kentucky Supreme Court's test, and the other suggested tests for evaluating for "police created exigency" were vague and unclear, contradicting the Court's long standing desire to provide clear guidance to police officers, particularly in the field.

So what does the decision mean? On the one hand, in the "real world," the fear that this will open the floodgates to allow warrantless searches of homes is a legitimate one. Potentially, this opinion equips police with a powerful tool to search homes without warrants whenever they so desire. As one commentator wrote, what is to stop the police from "smelling" marijuana and "hearing" evidence being destroyed anytime they want to enter a home? Of course, there was more here -- the police were chasing someone that had been involved in a controlled buy; they didn't randomly select an apartment or home to enter. And, most important, the Court did not decide whether the facts here ("hearing people moving inside, sounding as though things were being moved...") were sufficient to establish exigent circumstances. Perhaps this is where the lower courts should draw the line and make the impact of this decision less concerning. That is, the courts should make clear that the police are subjected to a demanding standard when attempting to show precisely what sounds/actions from within the home justified the conclusion that evidence was likely to be destroyed were the police to obtain a warrant. (And it may be worth noting the role technological advances play as well -- the time needed to obtain a warrant is likely to become shorter and simpler now that police officers may use telephonic warrants).

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