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Sherry F. Colb

The U.S. Supreme Court Considers Whether Police Can "Make Their Own Exigency" in the Fourth Amendment Context


Wednesday, December 8, 2010

Earlier this year, the U.S. Supreme Court granted review in Kentucky v. King, a case that asks whether police may lawfully enter a private home without a warrant on the basis of "exigent circumstances" that the police themselves have created.

Stated differently, the issue is whether the Fourth Amendment sets limits on the extent to which police may lay the groundwork for exempting their invasions of people's privacy from the ordinary requirement that they first obtain a warrant from a neutral magistrate.

The Facts of the Case

In October 2005, the Lexington, Kentucky police conducted a "buy and bust" operation, in which they arranged for a confidential informant to purchase narcotics from a suspected drug dealer on the street. After the suspected dealer sold crack cocaine to the informant, an undercover officer named Gibbons (who had witnessed the transaction) signaled other officers to make an arrest. These other officers then pursued the suspect, in accordance with Gibbons's instructions.

Before the pursuing officers had the opportunity to catch up with the suspect, however, the suspect managed to enter his apartment complex. After following him into the breezeway, police were able to determine that the suspect had entered one of two apartments within that complex. No longer near a radio, the officers did not hear Officer Gibbons identify in which of the two apartments they would find their suspect.

While standing nearby the two residences, the pursuing officers detected the strong odor of burnt marijuana emanating from just one of the apartments. One officer inferred that it was likely the door of that apartment that had recently been opened to admit the suspect, thus allowing the marijuana smell to escape the home. (As it turns out, the suspect had actually entered the other of the two apartments.)

Smelling the marijuana, the police knocked on the door of the fragrant apartment and announced their identity as police. After doing so, the officers heard movement inside the apartment, which they interpreted as the sound of evidence being destroyed. Responding to this perceived exigent circumstance, the police forced their way into the apartment, where they found three people and a large quantity of drugs, drug paraphernalia, and cash.

Though police ultimately entered the other of the two apartments in the complex (the non-fragrant one) as well and found the originally suspected dealer there, the balance of this column will address the conduct of police in entering the fragrant apartment without a warrant -- the conduct that the U.S. Supreme Court has agreed to review.

The Court Proceedings that Followed Entry Into the "Fragrant Apartment"

The people the police found in the fragrant apartment included a man named Hollis Deshaun King. King argued that the warrantless entry into the residence violated the Fourth Amendment, and that the evidence found inside should therefore be suppressed.

The trial judge denied the motion to suppress, after which King entered a conditional guilty plea, reserving the right to appeal the denial of the suppression motion.

King then appealed to the Kentucky Court of Appeals, where he lost, and to the Kentucky Supreme Court, where he won. The Kentucky high court found that even if the sound the officers heard before entering the fragrant apartment amounted to an exigent circumstance -- which the court assumed it did -- the police had created that exigency themselves by knocking on the door and announcing their presence. The police therefore could not rely on that exigency to excuse their failure to obtain a warrant.

After reviewing a variety of standards from different federal courts of appeals that have considered how to judge when police have improperly created their own exigency, the Kentucky Supreme Court selected as the correct standard a two-part test that asks two questions:

First, did the police act in bad faith (by deliberately creating an exigency to excuse themselves from the warrant requirement)?

Second, if the police did not act in bad faith, was it was reasonably foreseeable that their investigative tactics would generate the exigent circumstances on which they went on to rely to justify warrantless entry?

The Kentucky Supreme Court found that in this case, it was reasonably foreseeable, under the circumstances, that knocking and announcing police presence would precipitate the threatened destruction of evidence -- the very exigency on which police relied to enter without a search warrant. Thus, Kentucky's high court determined that the motion to suppress the evidence found inside the fragrant apartment should have been granted.

The U.S. Supreme Court subsequently agreed to consider the question of whether and when otherwise lawful police conduct can impermissibly create an exigent circumstance and thereby vitiate the exigent-circumstances exception to the warrant requirement, invoked by police.

The State of Texas now asks the Supreme Court to adopt the test used by the U.S. Court of Appeals for the Second Circuit, which holds that police conduct impermissibly creates exigent circumstances only when the police acted unlawfully in creating the exigency. King urges the Court to find instead that even lawful conduct can impermissibly create an exigency that disqualifies that exigency from excusing the failure to obtain a warrant.

The Role of Proximate Cause In This Fourth Amendment Case -- and An Analogy to Illustrate the Concept

Though the Fourth Amendment does not ordinarily include an analysis of "proximate cause," the concept is useful in the attempt to analyze the proper role that a police officer's actions have played in generating an exigency, for purposes of deciding whether the exigency ought to "count" in excusing police from the warrant requirement.

The obligation of police to obtain a warrant prior to entering a home reflects a distrust of police and a corresponding desire for the intervening judgment of a neutral party, a magistrate who is not "engaged in the often competitive enterprise of ferreting out crime." If police can simply create an emergency to avoid visiting the magistrate, then we allow the very parties whose judgment requires neutral review to exempt themselves from that review through their own behavior.

To observe the process of attributing to an action or circumstance the status of "cause" for a given event, consider an analogy to the speed limit. Speed limits usually require people to drive no faster (and not considerably slower) than the posted miles-per-hour. Assume, however, that the law provides an exception for emergency situations (a necessity defense). Assume also that Dr. John Doe is a crucial part of running the hospital where he works and that he must arrive at 9 a.m. sharp, or else endanger patients' lives.

If Dr. Doe leaves his house, 30 miles away from the hospital, at 7:30 a.m. but encounters an unexpected traffic jam on the way to work, he might be excused for speeding for the last part of the journey. If, on the other hand, he leaves his house at 8:35 a.m. (because he was enjoying a funny television program and decided that he could still get to work on time by speeding), we could expect that he would not be excused from having violated the speed limit.

In both cases, Dr. Doe was in a situation that required speeding to avoid the life-threatening prospect of late arrival. Yet we can attribute the emergency, in the first case, to traffic, and in the second case, to Dr. Doe's neglectful behavior. His behavior was, in this sense, the proximate cause of the second emergency, but not of the first.

One might respond that actually, Dr. Doe could have avoided an emergency in both cases, simply by leaving the house much earlier than he anticipated he would have to. If, for example, you felt that it was absolutely crucial to be on time for a job interview, then you would likely plan in a way that built a lot of extra time into the schedule, to try to avoid even the small possibility of lateness due to completely unanticipated and unanticipatable events.

On the other hand, it might seem like a lot to ask that anyone -- including Dr. Doe -- conduct his daily life in a manner that rules out even the small possibility of lateness. If it generally takes an hour for Dr. Doe to get to work, then it would appear reasonable for him to leave the house each day by 7:30 a.m., if his goal is to arrive at the hospital by 9 a.m.

We see here that the question of attribution -- that is, the question of whom (or what) to identify as the cause of a given event -- is largely normative, rather than purely factual. As a factual matter, Dr. Doe in both cases acted in a manner that made the emergency (and the consequent need to speed) more likely than it would have been if he had acted in a different manner (e.g., by leaving the house at 6 a.m.). In that sense, the time that Dr. Doe left the house "caused" the emergencies in both cases.

What distinguishes the two scenarios, however, is that it seems unreasonable for Dr. Doe to have chosen to leave the house at 8:35 a.m. (absent an earlier emergency), given the ordinary commute to work, while it seems reasonable for him to have chosen to leave the house at 7:30 a.m., even though the latter did give rise to a small risk of lateness.

In sum, the normative reasonableness (or lack thereof) of a particular behavior may influence whether we attribute the status of legal cause to that behavior or, instead, to the circumstances in which he found himself.

Illegality as the Touchstone of Proximate Cause?

In Kentucky v. King, where the exigency at issue was the prospect of suspects destroying evidence, it is appropriate to ask to what we ought to attribute the emergency that came to face the officers.

If the police had found themselves in this emergency because they had violated the law in some independent way, then it would seem to follow -- as even the deferential U.S .Court of Appeals for the Second Circuit standard provides -- that police could not rely on that exigency to excuse their failure to obtain a warrant.

The question, however, is whether police must really go so far as to violate the law to disqualify the resulting exigent circumstances from "counting" for purposes of excusing the failure to obtain a warrant.

In the case of our Dr. Doe, imagine that the reason for his lateness was that he was busy shoplifting dental floss from his neighborhood drugstore, and that his theft delayed him until 8:35 a.m., when he finally left for work. Plainly, he would not qualify for the emergency exception to the speed limit.

And, to generalize beyond the Dr. Doe example, we can see that violating the law in a manner that creates an emergency is a perfect example of an emergency that should be legally attributed to the violator's behavior, rather than to his surrounding circumstances.

But should the shoplifting example represent the only sort of case in which an emergency ought properly to be attributed to the doctor's behavior? As we noted above, if Dr. Doe leaves his house at 8:35 a.m. for no good reason, knowing that he needs much more than twenty-five minutes to get to work (if driving at the speed limit), then it seems proper to attribute the ensuing emergency to him, even if he did not violate any law by departing his house at 8:35 a.m.

For similar reasons, it would seem that police officers should not have to engage in illegal behavior in order to disqualify themselves from relying on an exigency that they have created through their own poor planning. The Second Circuit test, in other words, appears excessively narrow.

Does It Matter if Police Officers Act in Bad Faith?

If the police deliberately create an emergency to avoid having to get a warrant, then it would seem appropriate that the emergency not count, for purposes of excusing the warrant requirement. Indeed, police officers' deliberately creating an exigency to avoid the warrant requirement would appear to be the moral equivalent of the police simply defying the warrant requirement directly, without creating an intervening exigency.

After all, the very point of allowing an exigency exception to the warrant requirement is to permit police to respond to situations in which they cannot be blamed for entering without a warrant. If they have intentionally manufactured the situation in which they now "cannot be blamed," then they -- by definition -- can, in fact, be blamed.

The State of Kentucky suggests, however, that officer intent should not matter, because the U.S. Supreme Court held in Whren v. United States that only objective justification matters, regardless of what the officer's true motivations might be. Kentucky's argument goes as follows: If police can rely on an exigent circumstance that they causally generated without the goal of avoiding the warrant requirement, then they should also be able to rely on the same exigent circumstance that they generated with the goal of evading the warrant requirement. Actions matter. Intentions do not.

This is one possible reading of Whren, but one can find support in Whren for distinguishing between two types of circumstances. First, there are circumstances in which the police have everything they need to proceed (e.g., they have probable cause to arrest a person in public), where we do not inquire about their intentions. Second, there are circumstances in which the police lack what they ordinarily would need to proceed (e.g., they lack individualized suspicion because they are operating a traffic checkpoint), where intentions and pretextual behavior become salient.

Arguably, in a case in which the police are departing from ordinary procedure by entering a dwelling without a warrant, their intentions (here, the intention to frustrate the warrant requirement) can effectively undermine the exigency that would otherwise have excused the warrantless entry.

Absent Bad Faith, Should It Matter if the Police Could Have Foreseen that Exigent Circumstances Would Arise?

Beyond cases of bad faith, should the Court also exclude cases of foreseeable exigencies from exemption from the warrant requirement, as the Kentucky Supreme Court held is appropriate?

Perhaps, but I would propose tempering the foreseeability test somewhat, given that police may legitimately act in a manner that foreseeably generates an exigency, if there is some plausible non-pretextual reason for acting in that manner.

Only when the police have acted unreasonably in foreseeably causing an exigency should their conduct disqualify the exigency as a defense for warrantless entry. Here, acting unreasonably means acting in a way that makes no sense other than as a means to cause an exigency.

Consider an example, by contrast, of legitimately but foreseeably creating an exigency: Police hear the sounds of violence inside an apartment. They announce their presence to deter further violence, even though such an announcement would foreseeably create an incentive for the suspect's escape -- an exigency that could then necessitate a warrantless entry.

In the Kansas case, it is difficult to imagine what legitimate objective the police could have had in mind when they knocked on the door of an apartment that smelled of burnt marijuana, and announced their identity as police. Under the circumstances, the people inside the apartment would predictably know that the police outside the door could smell what was going on inside, and the suspects would accordingly be motivated to destroy evidence before allowing police to enter.

Unlike a case in which the police knock on the door of someone whose evidence is well-hidden, moreover, the people inside the apartment in King would not have believed that the police might be satisfied with a brief conversation. Nor would they have supposed that the police did not intend to search the premises.

Accordingly, the only probable consequence of knocking on the door of the apartment and announcing the presence of police was that the people inside would do precisely what they did -- move around in a manner that would give rise to the fear, on the part of the police listening outside, that evidence was possibly being -- or was about to be -- destroyed.

Notably, if the police had had a warrant in their possession, they might well have chosen not to knock and announce their presence, even though the Fourth Amendment ordinarily requires "knock and announce" in executing a warrant. The ground for not knocking and announcing in such a case is that doing so would give people inside an opportunity and incentive to destroy evidence. Their situation, in other words, would have given rise to an exigency justifying the failure to knock and announce their presence.

Accordingly, whether as a matter of bad faith or of foreseeably pointless police conduct, the police decision to knock and announce -- without any defensible reason -- gave rise to the exigency on which police then relied to justify their warrantless entry. For this reason, the Supreme Court should find that the police in King improperly created their own exigency, and therefore cannot legitimately rest upon that exigency to excuse their failure to obtain a warrant.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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