There’s been much hand-ringing over the Supreme Court’s recent decision in Kentucky v. King, decided 8-1 with Ginsburg dissenting.  In fact, the Seattle Times has declared that the Supreme Court OKs warrantless searches.  Where have they have been for the last 97 years? This certainly isn’t the first decision on the topic.

The Kentucky holding: “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” (Lawyers, man.)  Let’s look at the facts and procedural history.

Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others.

Stop.  First question.  Does this constitute exigent circumstances (circumstances that would allow the police to enter without a warrant)? Exactly what kind of noises did they hear?  It’s a great question. Unfortunately, this question was never answered because the Kentucky Supreme Court presumed that exigent circumstances existed and SCOTUS expresses some skepticism over this.

As a preliminary matter, the court observed that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was suffi­cient to establish that evidence was being destroyed.” But the court did not answer that question. In­stead, it “assume[d] for the purpose of argument that exigent circumstances existed.”

The Kentucky Supreme Court found that while exigent circumstances existed, the police could not escape the warrant requirement because they are ones who created the exigent circumstances. And bad faith or not, “exigent circumstances could not justify the search because it was reasonably foresee­ able that the occupants would destroy evidence when the police knocked on the door and announced their presence.”

And that it was the Supreme Court reversed.  After detailing SCOTUS’s long history of slicing the Fourth Amendment into pieces, it announces:

Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their con­ duct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.

And guess who’s pissed? Justice Ginsburg.

The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. 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. I dissent from the Court’s reduction of the Fourth Amendment’s force.

So what does this practically mean?  If you’re charged, the trial court must still determine whether exigent circumstances existed. “What exactly were those noises you heard, Mr. Officer?”  But as some folks have pointed out, this will result in some questionable searches:

These and other criminal law experts said that under Monday’s ruling, police could go door to door in an apartment complex where there is known drug activity, and if they smell marijuana, bang on the door and if they hear noises that suggest the destruction of incriminating evidence, they can break in and seize evidence in plain sight.

Listen guys. Don’t smoke in the living room, smoke in the back.  And while we’re at it, CAN WE JUST LEGALIZE MARIJUANA ALREADY?


9 Responses to Kentucky v. King

  1. Steve Golden says:

    This is a very interesting case, and one that is sure to be skewed in future caselaw. Good analysis.

  2. JMPrince says:

    Good post on a timely & timeless issue. And again, this just never happens much, and we might always trust the cops over the evidence from the dead bodies piled up over the years:

    Cato, (ostensibly ‘libertarian’, but not for anything involving sex or Reproductive rights), has plenty of coverage on the issue. As does Flexyourrights (a newish org) besides the standard issue ACLU. Which is where they came in & were created, during the Palmer raids. JMP

  3. Ed says:

    Also I have a real answer forthcoming.

  4. Sgt. Hartman says:

    Doin’ the Lord’s work here, I tell you what.

    CROWN POINT, Ind. – According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011. When asked three separate times due to the astounding callousness as it relates to trampling the inherent natural rights of Americans, he emphatically indicated that he would use random house to house checks, adding he felt people will welcome random searches if it means capturing a criminal.

    • Jen B. says:

      Yeah, I meant to address that but my post got too long. Barnes v. Indiana is a fucking terrible decision and will almost certainly be granted cert by SCOTUS. Georgia has some decent caselaw on resisting unlawful arrests so I’ll probably tie the two of them together at a future point.

      • Ed says:

        So question.

        If one were to post something on one’s lawn or door saying “No entry without warrant” or something like that, would that make a difference? I know like in some negotiations and other tense moments if you state upfront the requirements it is enough to ensure your terms are met.

        Does that make sense?

        • Ed says:

          Also, good post Jen.

        • Jen B. says:


          I recommend using this doormat:

          In fact, I think Shannon had one in college.

          Many times there will be conflicting testimony over whether a defendant consented to the search.

          Officer: “And then he gave me permission to search his apartment and I found 30oz of marijuana in plain view on the table.”

          Yeah, right. But if credibility is an issue, most will side with the officer. However, having a sign or doormat may have the officer think twice about performing a warrantless search (assuming he’s not going to make up exigent circumstances).