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Scope of warrantless searches expanded

Police are allowed to search a residence without a warrant if they believe there is an urgent need to preserve evidence and their conduct did not create the exigency.

The U.S. Supreme Court on Monday sided with police in Kentucky v. King (no. 09-1272 ) 302 S. W. 3d 649, where police officers in Lexington, Ky., knocked on and broke down the wrong door while chasing a suspect.

The officers, according to the decision, followed a suspected drug dealer into an apartment complex where they smelled marijuana outside of an apartment door, knocked loudly and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment they believed involved the destruction of evidence.

The officers announced their intent to enter the apartment, kicked in the door and found Hollis Deshaun King and others. During a protective sweep of the apartment, they saw drugs in plain view and found additional evidence during a subsequent search.

King was indicted on charges of trafficking in marijuana, first-degree trafficking in a controlled substance (crack cocaine) and second-degree persistent felony status. King moved to suppress the evidence because the search was made without a warrant.

The Circuit Court denied King’s motion, holding that exigent circumstances — the need to prevent destruction of evidence — justified the warrantless entry.

King, who had entered a conditional guilty plea, preserving his right to appeal the denial of his suppression motion, was sentenced to 11 years in prison.

The Kentucky Court of Appeals affirmed, but the Supreme Court of Kentucky reversed, assuming exigent circumstances existed, but nonetheless invalidating the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.

On Monday, U.S. Supreme Court Justice Samuel A. Alito Jr., writing for the majority, said it is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant.

“The conduct of the police prior to their entry into the apartment was entirely lawful,” he wrote. “They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.”

Justice Alito also noted the high court has rejected the notion that police may seize evidence without a warrant only when they come across it by happenstance.

The suspect police were pursuing had actually gone into the apartment across the hall. Police eventually entered that apartment and found the suspected drug dealer who was the initial target of their investigation.

“Suppose that the officers in the present case did not smell marijuana smoke and thus knew only that there was a 50 percent chance that the fleeing suspect had entered the apartment on the left rather than the apartment on the right,” Justice Alito wrote. “Under those circumstances, would it have been reasonably foreseeable that the occupants of the apartment on the left would seek to destroy evidence upon learning that the police were at the door?”

He also notes the degree of reasonableness must consider that police officers are often forced to make split-second judgments in tense, uncertain and rapidly evolving circumstances [Graham v. Connor, 490 U.S. 386, 396–397 (1989)] and that law enforcement officers are under no constitutional duty to halt a criminal investigation the moment they have the minimum evidence to establish probable cause [Hoffa v. United States, 385 U.S. 293, 310 (1966)].

The Supreme Court reversed and remanded the case to the Kentucky Supreme Court, leaving it to address the question of whether an exigency actually existed.

“Like the court below, we assume for purposes of argument that an exigency existed,” Justice Alito wrote. “Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.”

The lone dissenter, Justice Ruth Bader Ginsburg, said the smell of marijuana gave police probable cause to obtain a warrant.

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” she wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.”

The case was argued Jan. 12.