Can Police Create the Circumstances That Support a Warrantless Search?

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Under the Fourth Amendment, police need a warrant to enter a person's home without that person's consent. An exception to this rule exists for so-called exigent circumstances. Under the exigent-circumstances exception to the Fourth Amendment's warrant requirement, police are excused from getting a warrant when faced with situations that call for immediate action. An important example of exigent circumstances is the destruction of evidence. If the police had to get a warrant before entering a home in which they believe evidence is being destroyed, the evidence would be probably gone by the time that they return with the warrant.

Tomorrow, the Supreme Court will hear oral argument in Kentucky v. King, a case that explores the boundaries of the exigent-circumstances exception. According to the trial court's findings of facts in that case, police officers smelled burning marijuana outside an apartment. Instead of seeking a warrant to search the apartment, though, the police officers "banged on the door of the apartment . . . identifying themselves as police officers and demanding that the door be opened by the persons inside." The officers then heard "things being moved in the apartment." They subsequently described the sounds as that of "people moving around as opposed to furniture being moved." From these sounds, "[i]t seemed to the officers that the occupants . . . may have been in the process of destroying evidence." After no one answered the door, the police forcibly entered the apartment. Inside, they found Hollis King smoking marijuana.
Before the Supreme Court, Mr. King argues that the police officers' warrantless entry into his apartment violated the Fourth Amendment and that the evidence discovered during their warrantless entry must therefore be suppressed. His position is that if the police create the exigent circumstances that purportedly call for immediate action, there really isn't any emergency and the exigent-circumstances exception is inapt. The logic of Mr. King's argument is hard to argue with: If the police could circumvent the Fourth Amendment's warrant requirement by manufacturing emergencies, then the warrant requirement wouldn't be very meaningful.

Although the King case has received little press attention, its resolution could affect anybody who is visited by the police. As Professor Orin Kerr has noted:

When the police bang on a door, shout that they are the police, and demand entry, they do what they do when they have a warrant. To someone inside, that noise from outside creates the impression that the police are following the "knock and announce" rule they have to follow when executing warrant. Under the rule, if no one answers the door in 15-20 seconds, the police will break down the door and enter. If I'm in an apartment and I hear that outside, I'm not just going to sit there in my apartment and keep watching TV or surfing the Internet or watching the paint dry. Rather I'm either going to run to the door immediately to stop the police from breaking it down (which I have only a few seconds to do before they enter) or else I'm going to prepare myself for a bunch of cops violently entering a few seconds later. Either way, I'm going to move around and make some noise.

By Martin Magnusson. Mr. Magnusson is an associate at Day Pitney LLP.