Kentucky v. King (Docket No. , Decided May 16, ) - New Jersey Criminal Civil Lawyer
Such encounters between the police and residents of a home are not considered searches or seizures within the meaning of the Fourth Amendment. The Restriction on Police-Created Exigencies. With the widespread use of the knock-and-talk comes the potential for abuse. In King, the Court mentioned two cases that employed the lawful manner test: MacDonald and State v.
By knocking and announcing themselves, they acted in accordance with the law. If the police opt to do the thing that creates the emergency, then there was no genuine emergency. The bad faith test looks to the subjective intentions of the officers to determine if the exigency was police created. Circuits all consider the intentions of the officer in their police-created exigency calculus. The Fifth Circuit uses a test that involves both a subjective component and a reasonableness inquiry.
In the context of a controlled sale of drugs, the Arkansas Supreme Court in Mann v. It faulted the test for failing to recognize that the suspect, not the officers, creates the exigency that leads to a warrantless search. Standard or Good Investigative Tactics. The standard or good investigative tactics test focuses on how the exigent circumstance arose. In Gould, the court explained that the first focus is on the subjective intentions of the officers.
Probable Cause and Time to Secure a Warrant. However, for courts that look to the foreseeability or reasonableness of police tactics, the opportunity to secure a warrant is often an important factor. Clearly, if officers have the opportunity to seek a warrant, the situation is not one of urgency. Using this test, some courts have identified other investigative tactics that would avoid warrantless searches.
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For example, in Mann, the court noted that officers in the position to make a knock-and-talk after a controlled sale have two better alternatives: While the use of this test may offer insight into whether officers acted in bad faith or whether their tactics were improper, there are a number of lawful reasons officers might fail to secure a warrant in the face of probable cause.
The Supreme Court faced a very tricky issue in King. Blogger Orin Kerr perfectly captured this dilemma:. How do you distinguish police-created exigent circumstances from suspect-created exigent circumstances? The question is, what test can achieve both goals at once? The Court chose the test it thought best achieved these goals: The Court ultimately felt that any conduct that does not violate the Fourth Amendment is lawful and does not create the exigent circumstance.
Warrantless, Police-Triggered Exigent Searches: Kentucky v. King in the Supreme Court
This suggests that the Court knew its test was not a perfect solution to every theoretical and practical problem proposed but wanted to show why the other tests were less preferable. The Court tackled this problem with a grand effort. For the most part, its criticisms of the other tests were well founded and persuasive.
The Court failed, however, to actually acknowledge the obvious problems with the test it chose. Because of the problematic implications of the King test, I propose a new test that would provide a better solution to determine what makes a police-created exigency. One must only look as far as the King dissent to begin to see the problem. One unique thing about drugs, as evidence, is that they are small and easily disposed of. Thus, the principal evidence in a drug investigation can be destroyed immediately by flushing it down the toilet while police wait at the door.
Because of this potential for destruction, officers often express concern that evidence is in imminent danger of destruction. The King test provides officers with the ability to break in while a suspect attempts to destroy evidence, so long as the officers do not engage in, or threaten to engage in, conduct that violates the Fourth Amendment. Put another way, officers are permitted to engage in any conduct that does not violate the Fourth Amendment in order to manufacture a situation in which they hope, or even expect, the suspect will respond by destroying evidence.
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Why would an officer, in investigating a drug case, seek a warrant when he could conduct a search by knocking on the door and entering when the suspect failed to answer right away? In short, he would not seek a warrant. Therefore, Justice Ginsburg is quite right when she states that the decision provides officers with a way to dishonor the warrant requirement in drug cases. The King test is also problematic because the line it draws is arbitrary and unrelated to the reason the line is needed. The purpose of this line is to weed out true exigencies from situations that could have been avoided.
A test that only requires that police conduct conform to the Fourth Amendment does not distinguish when an exigency is police created. Rather, it suggests that even if the situation is manufactured by police, it is permissible unless police conduct violates the Fourth Amendment.
Strong odor of marijuana
Because the line the King test draws is divorced from the purpose of the police-created exigency exception, it is not the proper test. After King, in the context of drug cases, the exigent circumstances rule may be used without restriction to justify a warrantless search whenever police believe evidence is being destroyed.
There is no need to secure a warrant because the officers are permitted to manufacture a situation in which the suspect is expected to destroy evidence. In these circumstances, the officers now have the Court-sanctioned ability to break into the premises without a warrant. Just as Justice Ginsburg predicted, in the post-King world of criminal procedure, law enforcement agents will be able to regularly disregard the Fourth Amendment in drug cases. I propose an alternative test—the foreseeability plus probable cause test. In this two-part conjunctive test, police impermissibly create exigent circumstances when two elements are present: Initially, this test looks very similar to the test used by the Arkansas Supreme Court in Mann v.
In contrast, the foreseeability plus probable cause test considers the opportunity to seek a warrant an essential element of a police-created exigency. The value in this alternative test is that, by combining the reasonable foreseeability test and the probable cause and time to secure a warrant test, the problems associated with each test individually are reduced. Under the reasonable foreseeability test, an officer cannot, consistent with the exigent circumstances rule, engage in behavior that could reasonably be anticipated to lead to an exigency.
This is so even if that exigency consists of the suspect destroying evidence. Put another way, an officer cannot do something if a reasonable officer could foresee it resulting in a suspect responding with illegal behavior, such as destroying evidence. This is an untenable solution. The police need to be able to respond to genuine exigencies and should not be prohibited from doing so because it is possible that an exigency could occur given their perfectly legal investigative tactics.
The probable cause and time to secure a warrant test is also flawed. Although it is usually used just as one part of a calculus, this test effectively requires police to stop their investigation the moment they have probable cause.
Kentucky v. King
If an exigency arises, police cannot respond to it because they had the opportunity to get a warrant but did not do so. There are a number of reasons police do not rush to the courthouse immediately upon the discovery of probable cause. The King majority lists four persuasive reasons for not seeking a warrant as soon as probable cause is acquired.
For example, the police might want to speak with the residents to decide whether it is worthwhile to obtain a warrant. The foreseeability plus probable cause test does not completely eliminate these problems.
Did police create the exigency?
In some situations, police would still be prevented from conducting a knock-and-talk and relying on the subsequent exigent circumstances to justify their warrantless search. This test would, however, draw a more balanced line between preventing the abuses that are associated with a very lenient test and permitting police to respond to genuine exigencies. Turning to the requirements of the test, it looks first to whether it was reasonably foreseeable that police conduct would result in an exigency.
This line of analysis is similar to the Mann test, although it requires only a consideration of foreseeability, without weighing other factors. If the exigency was not reasonably foreseeable, then the police did not impermissibly create the exigency, and the exigent circumstances rule applies. The Supreme Court ruled 8 to 1 on a Kentucky case in which police broke into an apartment after smelling marijuana and hearing sounds suggesting evidence was being destroyed. Police do not need a search warrant if, after knocking on a closed door and announcing their presence, they discern that evidence of a crime is being destroyed on the other side, the US Supreme Court ruled Monday.
The justices said in certain emergency circumstances a warrant is not necessary, provided that law enforcement officials act reasonably in compliance with Fourth Amendment protections and do not threaten to violate them. The case involved a dispute over whether police in Lexington, Ky. Police were in pursuit of an individual who had just purchased crack cocaine during an undercover sting operation.
Uniformed police officers followed the suspect into an apartment complex, but did not see which of two apartments he entered — the door on the right or the door on the left. As they approached, police noticed a strong odor of marijuana coming from under the door on the left. They assumed the suspect was hiding in that apartment. In fact, he had entered the door on the right. Police knocked on the door on the left, announcing their presence. When no one answered, they pounded on the door. After hearing noises suggesting evidence was being destroyed, the police kicked the door open.
Once inside the apartment, they noticed marijuana and powder cocaine in open view. A subsequent search revealed crack cocaine, cash, and drug paraphernalia. King was convicted of drug trafficking and sentenced to 11 years in prison. An intermediate appellate court disagreed and upheld the conviction, but the Kentucky Supreme Court reversed.
That action would then create the emergency that would be used to justify breaking down the door and conducting the search without a warrant, the Kentucky high court said. In reversing that decision on Monday, the US Supreme Court said the correct test is not whether the actions of police might trigger the attempted destruction of evidence. The proper test, the court said, is whether police conducted themselves in a reasonable manner prior to the emergency that required the warrantless search.