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Tuesday, May 17, 2011

Thoughts on Kentucky v. King

The Supreme Court decided Kentucky v. King yesterday.  In that case, Lexington, Kentucky police officers smelled marijuana coming from an apartment.  They banged loudly on the door and yelled "This is the police" or "Police, police, police."  No one answered the door but the officers heard people moving around inside the apartment.  Fearing that evidence would be destroyed, the police forcibly entered without a warrant.  The question was, assuming that exigent circumstances existed, were the police disentitled from relying upon those exigent circumstances in order to make a warrantless entry, on the ground that they had created the exigency by knocking.  The Court held, 8-1, that the police can rely on an exigency that results from their own actions, as long as they do not undertake or threaten actions which themselves violate the Fourth Amendment.  The decision was both predictable and, in my view, mostly correct.  A few observations:

1.  The case is yet another chapter in the struggle between two views of the Fourth Amendment, corresponding to its two main clauses.  The Reasonableness Clause forbids "unreasonable searches and seizures."  The Warrant Clause spells out the requirements for a warrant.  Correspondingly, what we can call the "reasonableness view" of the Fourth Amendment is that it merely requires that the police act reasonably, which sometimes requires that they obtain a warrant before acting, while the "warrant view" of the Fourth Amendment is that it requires a warrant whenever the police can obtain one, but sometimes excuses their inability to obtain one.  While the Court has continued to give lip service to the "warrant view," it has also continually gone down the path of enshrining the "reasonableness view" into law.  This case is no exception.  While the court offers platitudes about the warrant "requirement," it essentially grounds the decision in the reasonableness of the officers' actions.  Although they could have gotten a warrant, their actions were nonethless reasonable and therefore there was no Fourth Amendment violation.  What is striking is that Justice Ginsburg, the sole dissenter, appears to be the only Member of the Court who continues to posit a strong form of the "warrant view."  Specifically, it appears that the two newest Members of the Court have cast their lot with the "reasonableness view."

2.  Lurking behind this relatively easy issue is a very difficult one.  Recall that the Court assumed for sake of argument that the sound of people  moving in the apartment created an exigent circumstance permitting a warrantless entry.  But did it?  As I see it, the issue is not whether there actually was an exigency, no more than the issue when the police arrest someone is whether he is guilty of an offense.  The issue, rather, is whether the police have the requisite level of suspicion to believe an exigency exists in order for them to act.  It seems to me that they must have either probable cause or reasonable suspicion, but the Court has never directly addressed which is the appropriate standard.  In cases like this, the police seem to be relying on little more than speculation that there is an exigency.  The sound of people moving around might indicate that they are about to destroy evidence but it also might mean that they are simply ignoring the police and going about their business.  Moreover, had they remained perfectly still, the police might have inferred that they were steeling themselves to attack.  This leaves answering the door as the only option that does not create an exigency, but the Court went out of its way in King to say that one has a every right not to answer.

So the Court still has not directly addressed whether the police must have only reasonable suspicion or, instead, probable cause to think an exigency exists before they effect a warrantless entry.  And might the level of suspicion required vary by the type of exigency?  When the police are seeking to prevent the destruction of evidence, they are acting in their law enforcement capacity -- attempting to preserve evidence for use at trial -- which is at the core of Fourth Amendment concerns, so perhaps the probable cause standard should apply.  But when the police are acting to prevent a dangerous situation, they are acting in a community-caretaking capacity, so perhaps only reasonable suspicion should be required.  Relatedly, do we ever care about the subjective motivations of the police?  The King Court says no, and I think that is correct when the purported exigency is destruction of evidence.  But when the police are acting in a community-caretaking capacity, as in the "special needs" cases, we at least sometimes do care whether they are actually motivated by a community-caretaking concern, because we loosen the Fourth Amendment's strictures under those circumstances.  So perhaps resaonable suspicion of the existence of a dangerous situation is enough for police to effect a warrantless entry into a premises, but the police must actually be motivated by the exigency.

3.  Finally, I have one qualm about what the Court did decide.  It is at least arguable that the officers' banging loudly on the front door coupled with their yelling "This is the police" or "Police, police, police" would have led a reasonable person to believe that the police were demanding entry.  The Court determined that it would not look at "such subtleties" as "the officers' tone of voice" or "the forcefulness of their knocks."  But it seems to me that, in determining whether the officers were threatening unlawful action -- forcible breaking unless entry were allowed by the occupants -- one has to look at precisely those "subtleties."  The question is whether opening the door under those circumstances would have been consensual.  And whenever the issue is consent, whether to a search or to an interaction that would otherwise be considered a seizure, the courts do look at all the circumstances.  For example, whether an officer has seized a person or, instead, engaged in a consensual encounter may depend on such subtleties as whether the officer's hand is raised or lowered when he approaches the person.  The inquiry is fact-intensive, thereby leaving the law unpredictable and hard to administer, but that is true whenever there is an issue of consent.  In my view, the Court should have remanded the case for a determination as to whether the police, in effect, demanded entry, thereby threatening to act unlawfully.

Posted by Michael J.Z. Mannheimer on May 17, 2011 at 02:31 PM | Permalink


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I would suggest that you read the opinion again. Neither the U.S. Supreme Court nor the Kentucky Supreme Court has held that there was no Fourth Amendment violation.

Posted by: Michael J.Z. Mannheimer | Jun 1, 2011 1:10:32 PM

I view the holding of King to be but another step towards the death of personal rights. While there may have been hightened suspicion due to the smell of burning marijuana, that suspicion does not amount to probable cause. By not answering the door the occupants were exercising their rights. Apparently there is no right to privacy as long as there is a suspicion of wrong doing. This suspicion rests on the personal beliefs of the police officer on the scene. This amounts to a very subjective cause and result. Maybe the occupants were destroying evidence, maybe they werent, NOBODY ACTUALLY KNOWS. Where did the smell come from? Sure, its easy to say from within the door, but isnt it possible that if emminated from somewhere else? THere are too many "possibilities" to consider yet the bright line of criminal law has been smeared into a blur once again, the standard has been lowered for law enforcement from probalble cause to suspicion. I find this holding offensive, in the way that an expectation of performance disappoints when not reached.

Posted by: Shaun | Jun 1, 2011 12:49:24 PM

Michael, Russ,

I think it's worth noting that the Court had expressly limited the cert grant to the question of the right test for police-created exigent circumstances. Kentucky's petition had tried to raise the broader issue of whether there were exigent circumstances, but the Court limited the cert grant to the police-created exigency question.

Posted by: Orin Kerr | May 18, 2011 12:14:13 PM


Interesting point, which came up at oral argument (pp.16-17 of the transcript). Justice Kennedy asked whether the burning of the marijuana itself created an exigency. Counsel for Petitioner responded that he thought that it did but that the Court had foreclosed that argument in U.S. v. Johnson. I'm not familiar enough with Johnson to know whether that is accurate but it seems to me that the Court was not willing to decide (or re-visit) that issue when it was not really being pressed by Petitioner. However, they could have dropped a footnote to explain why they weren't deciding it, but they didn't, indicating that perhaps they don't put much stock in the argument.

Posted by: Michael J.Z. Mannheimer | May 18, 2011 9:15:50 AM

One interesting aspect of the Court's opinion: It could have ruled that the smell of burning marijuana itself created probable cause of the exigency -- the destruction of evidence -- and thus mooted the question of whether an exigency in fact existed. By not going that route, the Court seems to have declined to endorse the view taken by some courts, see, e.g., Mendez v. Colorado, 986 P.2d 285 (Colo. 1999) that evidence of drug consumption equals exigency.

Posted by: Russ Covey | May 18, 2011 8:47:35 AM


I disagree. As I read the opinion, the Court did not hold that the facts of the case amounted to exigent circumstances that permitted the entry. Rather, the Court only held that the noise inside could be considered in the overall picture -- the noise inside didn't need to be subtracted out as evidence of "police-created" exigent circumstances. The Court then remanded so the state court could consider whether the facts were sufficient to establish exigent circumstances. That's how I read the opinion, at least: Do you disagree?

Posted by: Orin Kerr | May 18, 2011 1:38:47 AM


I was really just talking about the different approaches that different Justices will take and have taken historically. Someone like Justice Ginsburg, who thinks the Fourth Amendment is all about warrants, will ask: "Could the police have gotten a warrant at the time they developed probable cause?" If the answer is yes, then that is the end of the inquiry; the Fourth Amendment requires a warrant when possible. For someone who takes the reasonableness approach, the question is: "Was it reasonable for the police to do what they did at the time they developed probable cause?" Under such an approach, it would have been reasonable either to get a warrant OR to knock on the door and seek consent to enter.

Posted by: Michael J.Z. Mannheimer | May 18, 2011 12:09:12 AM

On the surface, the case doesn't favor reasonableness over warrants. It just clarifies a warrant exception. But I would agree with you that in fact it favors the reasonablness framework because the de facto effect of this decision is to allow police to enter a house with PC and without a warrant in, say, 80% of cases. 80% is my guess as to how often, when the police have PC, the people inside a house would give at least similarly weak evidence of destroying evidence when the police behaved as they did here. So the effect is to greatly shrink the cases where a warrant is required. Is this what you meant by saying the case favors the reasonableness framework? Or something else? Frankly, I think I agree with Justice Ginsburg, but if the majority is right, would it not be better to just say there is no warrant requirement?
--Richard McAdams

Posted by: Richard McAdams | May 17, 2011 11:38:55 PM

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