On Remand, Supreme Court of Kentucky Rules that Exigent Circumstances Did Not Justify Entry into Apartment in Kentucky v. King

In 2011, the U.S. Supreme Court handed down Kentucky v. King, a Fourth Amendment case on police-created exigent circumstances. In King, the police were chasing after a drug dealer in an apartment building when they came across a door to an apartment that had the smell of burning marijuana emanating from inside. The officers banged on the door and announced their presence, and the officers then heard sounds inside. Fearing that the sounds were the sounds of destruction of evidence of crime, the police entered the apartment based on exigent circumstances and found Mr. King smoking weed. In its initial opinion, the Supreme Court of Kentucky had suppressed the weed on the ground that the noise from inside the apartment was a “police created exigency” — a response to the officers banging on the door — and therefore could not be considered relevant facts in the exigent circumstances analysis. The U.S. Supreme Court reversed and remanded, holding because the police had not violated the Fourth Amendment nor threatened to violate the Fourth Amendment, the banging on the door did not cause a “police created exigency” and the noise inside the apartment could be factored into the exigent circumstances analysis. As I wrote last May, the holding in King was widely misreported at the time. Specifically, a lot of analysts read the decision as holding that the entry was constitutional because exigent circumstances existed. In that post, I explained the misunderstanding as follows:

King did not consider whether the facts of the King case amounted to exigent circumstances. The Court did not consider whether the warrantless entry was constitutional. Instead, the limited cert grant addressed only a small piece of the puzzle: The Court only considered the right test for police-created exigent circumstances — the part to be subtracted from the totality of the circumstances — and then remanded the case back to the Kenucky courts. . . . [T]he Court’s conclusion was that all the facts could be considered — the usual “exigent circumstances rule” applies — without subtracting out the evidence of noises inside the home. . . .

Importantly, though, the Court did not hold that the warrantless entry was justified — much less that warrantless entries are generally justified — in such circumstances. The Court only held that the usual exigent circumstances rule applies: That is, whether or not there were exigent circumstances, the Kentucky courts should have considered the totality of the circumstances instead of subtracting out the reaction inside the house to the officers’ knocking and announcing their presence.

In light of that narrow holding — and the frequent misunderstandings of it — I thought it worth pointing out that the Supreme Court of Kentucky handed down its decision on remand last week in King v. Commonwealth . The court held that the entry was unconstitutional and not based on sufficient exigent circumstances:

[W]e conclude that the Commonwealth failed to meet its burden of demonstrating exigent circumstances justifying a warrantless entry. During the suppression hearing, Officer Cobb repeatedly referred to the “possible” destruction of evidence. He stated that he heard people moving inside the apartment, and that this was “the same kind of movements we’ve heard inside” when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

The police officers’ subjective belief that evidence was being (or about to be) destroyed is not supported by the record, and this Court cannot conclude that the belief was objectively reasonable. “[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]” Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (citing Payton, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.

Consistent with the instructions on remand from the United States Supreme Court, this Court concludes that exigent circumstances did not exist when police made a warrantless entry of the apartment occupied by Appellant King. Therefore, the denial of King’s motion to suppress evidence is reversed, and King’s judgment of conviction stands vacated.

The vote was 5-2. The dissenting Justices filed only the following statement:

CUNNINGHAM, J., dissents simply because he believes the officers involved were acting under exigent circumstances. SCOTT, J., joins.