Thoughts On the Oral Argument in Kentucky v. King

Today the Supreme Court heard oral argument in Kentucky v. King, an exigent circumstances case. The transcript is here. Here are a few thoughts on the oral argument, with some concluding thoughts at the end, at least based on the transcript (I’m visiting at Penn this semester, so unfortunately I couldn’t make the argument in person):

1) Pages 4-9: Counsel for Kentucky is assuming that the exigent circumstances doctrine requires probable cause. Some lower courts have said this, and I would guess the Kentucky courts are among them. But the U.S. Supreme Court has never said that, and the Justices seem puzzled by the fact that Counsel for Kentucky keeps talking about the role of probable cause. Put another way, he’s assuming the Justices think that’s required by exigent circumstances, but the Justices don’t realize his assumption. It’s causing a lot of confusion.

2) Page 19-20 and Page 34: Justice Scalia seems to think it would be extremely strange for someone to not open the door, but to instead walk to another room and close the door, when someone knocks at the door at 10pm. Also, in his view, if you’re smoking pot in your apartment at night and the police knock and ask that you open the door, the smart thing to do is to politely open the door, talk to the police, and then tell them that you decline to consent to a search. Hmm, I don’t think that’s the advice that most defense lawyers would give.

3) Page 25-27: There’s a discussion about adding a “bad faith” prong to the test. In my view, the problem with a “bad faith” test is that it’s hard to know what it means in this setting. If the test is subjective bad faith, it will hard to get to the truth in a suppression hearing; if the test if objective good faith, it’s unclear what that means in the exigent circumstances setting.

4) Page 42-43: Justice Scalia seems to want to overturn the Kentucky Supreme Court’s test, but he’s not sure of what to do with the facts here. If he has control of this case, it sounds like they might end up reversing, announcing a test, and remanding for more facts of what exactly happened at the scene. Interestingly, Alito and Scalia are both interested in this question of whether the cops demanded entry, as the trial court found, and what the evidence was for that. It’s one of the odd things about this case, I think: The case is different if the police demanded entry, and yet the parties dispute whether the police demanded entry. Notably, they continue to dispute it at oral argument.

5) Page 46: Scalia asks, “Do you have any doubt that it’s unlawful for a police officer to threaten to burst into a home?” Counself for King replies, “No, your honor.” But I have lots of doubts about it, actually. To be sure, it’s terrible to say such a thing if the officer doesn’t actually have a legal right to burst in. It’s quite unfriendly, and misleading, too. But what law does a police officer break if he threatens to burst into a home? It’s not a search or seizure, so it doesn’t violate the Fourth Amendment. What law does that violate? Does anyone know? Is Scalia thinking that there might be a relevant state law on threatening to damage property that might be implicated? I don’t know.

6) Page 52: Ah, finally my point 5 above comes out. At this stage, Scalia asks counsel for Kentucky if the threat to burst in would be unlawful, and counsel for Kentucky responds — correctly, I think — that it would not be. Scalia seems pretty puzzled, as this was not the answer he was expecting. (“It would not? Oh. Maybe we have to come up with an unreasonable test, then.”)

7) Some concluding thoughts: This was a pretty messy argument, I think. Kentucky and the United States are proposing a test that any lawful conduct is permitted. But as far as I can tell from the argument, the Justices don’t actually know what that means, as they don’t know what police conduct is lawful. During most of the argument, they seemed to assume that any thing really slimy or tricky must be unlawful. But at the end, in the rebuttal, they started to realize that this wasn’t the case. That’s one of the odd parts of the briefing in this case, I think: Neither side’s briefs actually gives examples of what would be included or excluded under the lawfulness test that the United States and Kentucky are proposing. No one has explained what sources of law must be consulted to know what is “lawful,” or how those sources would apply to routine investigative practices beyond the routine knock-and-talk.

Oh, and to repeat my full disclosure from my earlier post– counsel for King asked for my advice on this case, and I provided some advice on a pro bono basis. All opinions in this post remain my own.