A big issue in criminal procedure is search and seizure. Okay, that last sentence was a bit of an understatement. It’s a huge issue— one that is at the heart of the U.S. Constitution’s fourth amendment. Today, the Supreme Court heard oral arguments in Kentucky v. King to find some consensus about an exception to the fourth amendment known as “exigent circumstances.” I was particularly interested in this case and thus I give you a summary of the oral arguments today.
I. Basics of Search and Seizure
First, however, some background for the uninformed reader. The law is clear that police need warrants to search our home, car, apartment, etc… However, like always, there is an exception when police can conduct a search without first getting a warrant. Known as “exigent circumstances,” this doctrine allows the police to act when there is an imminent threat that physical evidence is going to be destroyed and there is not time to first obtain a warrant.
But there’s an exception to the exception (isn’t law fun?), which prevents officers from abusing the exigent circumstances doctrine. Put simply, an officer cannot intentionally create exigent circumstances just to work around the warrant requirements of the fourth amendment. But how far is the scope of this? Does it only apply to unlawful acts of a police officer (e.g. misrepresenting that you have a warrant and will burst in when you actually don’t have a warrant at all) or does it apply regardless of the officer’s intent? That was the primary issue before the Court this morning.
II. Background of Kentucky v. King
The facts were, for the most part, set aside in today’s arguments. However, a bit of context is useful. The defendant was arrested and tried after an undercover drug buy that took place in Lexington, KY. The police conducted a buy operation with a dealer, who walked out of sight. As officers entered the apartment, they were unclear about which of two units he entered. Smelling a marijuana odor coming from one door, they knocked on the door “loudly” and announced themselves as police. When the officers heard what they allege were sounds consistent with the destruction of evidence (this point is hotly contested by the defense as even arising to a level that would create an impression of exigent circumstances), they entered the apartment. When they found marijuana, the defendant was arrested.
The Kentucky Supreme Court ruled that the officers had created exigent circumstances and thus they could not avail themselves of this doctrine. Not surprisingly, the Commonwealth took exception to this interpretation and appealed. The defense held and continued to hold today that the Supreme Court was an improper forum since the defendant’s case had already been dismissed by the Kentucky Supreme Court and there was no further action to be taken in this specific action. It was , in my opinion, a rather clever argument but one the Court was not willing to entertain. In granting certiorari, it asked parties to brief only the exigent circumstances question.
III. Today’s Oral Arguments
Arguments commenced this morning at 11:00AM, with Joshua Farley, Assistant Attorney General for Kentucky arguing on behalf of the Commonwealth and sharing his time with amicus Ann O’Connell, Assistant Solicitor General. Ms. Jamesa Drake, Assistant Public Advocate, represented the respondent King.
In the beginning, the justices seem to take particular interest in the distinction of probable cause before and during the fact. Specifically, why prior probable cause of illegal activity was a necessary prerequisite to being able to enter a home/apartment from the smell of drugs seem to come. The Chief Justice particularly seemed to hint that he didn’t think any prior probable cause beyond smelling marijuana as an officer walks by an apartment would be necessary.
During Mr. Farley’s arguments, Justice Scalia highlighted an important point in asking what would happen if, rather than attempting to destroy evidence the defendant answered the door when the officers knocked. The assistant attorney general suggested that police here would be required to come back with a warrant rather than entering, prompting my favorite quote from the proceedings:
“JUSTICE SCALIA: So basically the – the police were taking advantage of the stupidity of the criminals, is that right? That’s terrible, that’s not fair is it?”
The Assistant Solicitor General pushed for the court to assume an exigency occurred for the sake of arguments— a suggestion the Court seemed perfectly willing to entertain. The solicitor also seemed to suggest that the exception to exigencies (that an officer may not intentionally create an exigency just to work around warrant requirements), should not be maintained. When Justice Kennedy asked her, “Is it your position that the police can do anything that’s lawful, even if the purpose of doing so is to create exigent circumstances” her response was: “Yes …as long as there is no violation of the Fourth amendment, that is ok.” Justice Breyer really pushed her on this point, asking why requiring an absence of bad faith shouldn’t be implemented. While the assistant solicitor resisted giving ground on her position, Justice Sotomayor also seemed troubled by it, asking: “what makes that different than knocking on the door and saying, open the door or I’m going to kick it in?” No real resolution to that question occurred before it was time to hear the respondent’s arguments.
And Ms. Drake hardly got off to an auspicious start. When she tried to preserve the factual issue of whether or not there was indeed an exigency in King’s case, the Court (Chief Justice Roberts and Justice Kennedy specifically) seemed much more interested tabling that issue and instead discussing whether or not the police can create exigencies in a general sense. Further, the Court brushed aside the problem that defense has been repeatedly arguing— namely that there is no further action for this case since it was dismissed prior to oral arguments being granted. Throughout the remainder of Ms. Drake’s arguments, it continued to remain clear that Chief Justice Roberts was not her biggest fan. His questions were sharp, almost snarky. Overall, I would have to admit that I was not overly impressed with Ms. Drake’s performance. Several times, the Court pushed Ms. Drake to focus on the issue raised earlier regarding whether an officer’s intent should matter in considering if exigent circumstances overcome a lack of warrant.
It’s not clear that the Court was in love with the petitioners either, however. The Justices, while seeming generally unimpressed with Respondent’s arguments and proposed test, also expressed great concern about the possibility of abuse should they rule in favor of the petitioner. Several judges specifically probed the petitioner for an explanation of how ruling in the Commonwealth’s favor wouldn’t lead to widespread abuse of the exigent circumstances exception. Petitioner suggested no answer that seemed to convince the Court.
IV. Possible Outcome
To say that “it could go either way” would be cliché so I won’t. The Court made it clear throughout arguments that it accepted this case to resolve multiple approaches to this exigent circumstances issue across jurisdictions. Of some importance, thus, was what sort of test it would propose to unify jurisdictions in their approach. While I don’t think that the respondent’s counsel did a particularly amazing job, I also get the impression that the Court has some very serious concerns about ruling that an officer should be allowed to create exigent circumstances so long as it does not violate the law. I would not expect the Court to adopt the proposed “unreasonable” test advanced by the respondent but I would expect to see a ruling that upholds Kentucky’s ruling and sets forth a modified version of the standards in Kentucky. The specifics in how the Court’s test will vary from that of the Kentucky Supreme Court is likely going to come down to differences in the Justices’ legal philosophy. Nothing new there. Now we’ll just have to wait for the opinion to come down. For attorneys on both sides of criminal law, I reckon it’ll be a long and impatient wait.