-Submitted by David Drumm (Nal), Guest Blogger
Oral arguments will be presented next week in a case involving the exigent circumstances exception to the Fourth Amendment. The idea behind the exigent circumstances exception is to relieve the police from the necessity of getting a warrant in cases involving emergencies. Emergencies such as when a suspect is destroying evidence or when police are in hot pursuit of a suspect.
The facts of the case:
Lexington-Fayette County police arranged for a confidential informant to purchase crack cocaine from a “street level” dealer. After the narcotics sale, an undercover officer gave the radio signal to detectives to move in for the arrest. The suspect entered an apartment building as the detectives exited their car. The undercover officer informed the detectives that the suspect had entered the back right apartment but the detectives were no longer near a radio. The detectives smelled marijuana coming from the back left apartment. The detectives banged on the back left apartment door, announced “police”, and demanded that the door be opened by the persons inside. The officers heard movement which led them to believe that evidence was being destroyed. The officers kicked in the door. Although the drug dealer wasn’t there, three people were sitting on a couch with marijuana and powder cocaine in plain view.
King and his co-defendants argued that the police’s entry was unlawful and filed motions to suppress the evidence. The circuit court concluded that the smell of marijuana gave the officers probable cause and the sound of movement gave the officers the exigent circumstances to justify a warrantless entry. The motion to suppress was denied by the circuit court.
The Court of Appeals upheld the circuit court concluding that the police did not create their own exigency because they did not engage in deliberate and intentional conduct to evade the warrant requirement.
The Supreme Court of Kentucky reversed and remanded, holding that the police were not in hot pursuit and with regard to the destruction of evidence, any exigency was police-created. In United States v. Duchi, the United States Court of Appeals for the Eighth Circuit claimed that “in some sense the police always create the exigent circumstances that justify warrantless entries and arrests.” The Supreme Court of Kentucky applied this test: if it was reasonably foreseeable that the police tactics would create the exigent circumstances.
The U.S. Supreme Court granted cert on the narrow issue of what is the correct test for when police conduct creates exigent circumstances.
If police create the exigency, then they cannot rely on the exigency to justify their warrantless search. The warrant requirement is meaningless if police can create exigencies and then conduct warrantless entries.