-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.
H/T: SCOTUSblog.
I am a member of IRE (Investigative Reporters and Editors). This enabled me to do a quick search of news reports on corrupt police and police forces. Too many. Too frightening to think of giving those with power even greater power over us.
But I fear this Supreme Court, so inclined to interpret laws in ways that harm the average citizen, will do it again. With a minority of dissents.
Too bad Michigan Supreme Court Judge Stephen Markham is not on the Court. In his chapter in Cato’s “In the Name of Justice” (edited by Thomas Lynch) he is emphatic that no court should create new laws–that is the task assigned to legislatures.
I love the idea of “smelling something from the left apartment door.”
As in so many of these problematic situations with police, I ask myself “so what if the police just did nothing?” In so many situations I have to ask, “what if the police had backed away instead of shooting someone?” In this case I ask, “what if they had decided to not kick in either door when they couldn’t see which one the pursued person entered?” In this case, a rather meaningless bottom-rung crack dealer MIGHT have got away. (of course, there are other ways to get someone out of a building rather than kicking in doors…)
I’m pleasantly surprised at the KY Supreme Court for their very reasonable ruling.
Good for the Kentucky Supreme Court! What was the movement the leo’s heard? Everyone rushing to sit on the couch?
What we have here in America is cops who go bezerk because they cannot stand the thought of people getting away with stuff cops do not have enough evidence to arrest them on, so they continually push for greater and greater absolute powers (which murders and murders absolutely). It also corrupts.
Then we have cops who are terrified to be cops and become so paranoid of dying or getting injured, they will knee-jerk kill, murder, and mame anything that moves. Even breathing is virutally a “resisting arrest” charge/pretext.
It is time to find another career when paranoia and fear of dying turns you into a homocidal maniac, despot, and Nazi stormtrooper.
Go find some honest work. Something harmless ike a career in janitor work. Apologies to toilets, brooms, buckets, squeegies, and mops.
Bob, Esq.
“Wow; I remember the 4th Amendment.
Memories”
LOL
this trick is used in fl vehicle searches. when pulled over the officer/trooper/deputy claims to smell something and searches the vehicle. if nothing is found you’re left on the side of the road to put everything back in your car, if they find something their nose was the probible cause.
i’ve had this happen twice (i have long hair and a beard)
Wow you have harsh drug laws in the USA hope it gets better for you all soon
Smoking and smelling weed is a misdemeanor in most states….if criminal activity is afoot then…whats to stop the cops from getting a search warrant…they can arrest for a misdemeanor commented in the officers presence…but they can’t search the building…get a damn warrant….
The term exigent circumstances isn’t in the Constitution, so how can Scalia and any other Originalist rule on any 4th Amendment case on that issue? Wouldn’t Scalia be duty bound to vote to uphold the lower court?? I am not holding my breath.
Lottakatz, nice link on the dog sniffing story. I can’t imagine that the police would take advantage of poor puppies getting the scent wrong, would they?!
Police created exigencies are part and parcel of the entire ‘us v them’ mentality that pervades the way the government at all levels looks at the citizenry now. Any excuse to target, detain, search, criminalize and supress citizens will do. I too am disturbed that SCOTUS will hear this case.
‘False positives’ suggest police exploit canines to justify searches
By Daniel Tencer
Ex-cop: Police ‘using dogs to trample our rights as citizens’
A study of “false positives” involving drug-sniffing police dogs suggests some police forces may be using canines to do an end-run around constitutional protections against search and seizure, and may be profiling racial minorities in the process.
A survey of primarily suburban police departments in Illinois, carried out by the Chicago Tribune, found that 56 percent of all police searches triggered by a drug-sniffing dog turned nothing up.
http://www.rawstory.com/rs/2011/01/false-positives-police-canines-searches/
Quote:
“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.”
________________
If we (y’all) only knew the frequency with which LEOs consider legal ruses to conjure up exigencies…
Let’s face it guys … in the eyes of our government we are all the enemy.
“Although the drug dealer wasn’t there, three people were sitting on a couch with marijuana and powder cocaine in plain view”
I know they took a A$$ kicking.
Yeah, Nal. Just agreeing to hear this stinks. Thanks for bringing this case to our attention.
Were I on the jury, it seems fundamentally unfair to me that the police can claim whatever they want, and it is taken as fact by the courts. Did they smell marijuana? Did they hear movement? Did they even demand entry before kicking down the door?
Why would “movement” imply illegal activity; as opposed to, say, being woken up and startled, and trying to get dressed to answer the door? Or suppose the occupants were engaged sexually? Or had X-Box earphones on and couldn’t hear the demands?
Yeah, if they’re not going to take a whiz, why grant cert.
If Kentucky used the reasonably foreseeable standard, then the Gang of Five (Robert, Ailito, Scalia, Thomas and Kennedy) is probably about to take a whiz on what’s left of the 4th Amendment. Because the jackboots need to be able to arrest whomever they want, whenever they want, and not be bothered with little niceties like Constitutional rights.
Wow; I remember the 4th Amendment.
Memories.
The Supreme Court of Kentucky got it right and SCOTUS better agree.
If the “the smell” and “movement” become enough to create an exception to the protections afforded by the Fourth Amendment we’re in big trouble.