Friday, November 24, 2017

Grant T. Herrin


Excerpted from: Grant T. Herrin,O! Say Can You Smell? Drug Smell Test Taskforces: Police-created Exigency Doctrine No Longer a Check on Warrantless Search by Police , 39 Southern University Law Review 343 (Spring, 2012) )(Student Paper) (203 Footnotes Omitted)


      Imagine you are spending a quiet Sunday evening at home on your couch when a clamorous knock comes at the door accompanied by a thunderous, “Police! Open the door!” Startled, your cat Liberty Bell bolts for the entertainment center, knocking over a box that is packed with the yet-to-be-put-away glassware from your recent move. Despite your own cat-like reflexes and the valiant effort you make in running to catch the box before it topples, you are unsuccessful; the glassware breaks resulting in an ear-splitting crash. Before you can even move the shards of glass out of the way, the police officer who was once outside your door has now kicked it in. He is standing in your living room with three sheriff's deputies all with their guns drawn and pointed at you. While it turns out they meant to knock on the door of the suspected drug dealer residing in the apartment next to you, the police mistook you and your cat for criminals attempting to destroy evidence of drug use. The police themselves are part of Drug Odor Presence Enforcement or DOPE (an entirely fictional construct for the purposes of this comment) charged with reducing drug use in high-crime neighborhoods. The program, instituted by the chief of police, calls for teams (drug enforcement agents trained to detect illicit drugs) to enter high-density housing developments, smell for drug odors emanating from a resident's home, knock and announce their presence, and then forcibly enter if they believe the resident is attempting to destroy evidence of the drugs. The entries, because of the program, are neither accompanied by a warrant, nor selected ahead of time such that a warrant could be requested with enough specificity to meet the requirements for issuance. Rather, it seems, a program of this nature may derive its authority not from statue, but from the Supreme Court's decision in Kentucky v.

      While the scenario and DOPE Program above are fictional, they are now not only possible, but the next probable evolution of police enforcement of drug violations under King. . .

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II. Historical Development

A. The Fourth Amendment, a General Background

      The Fourth Amendment to the United States Constitution declares:

       The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

     The Fourth Amendment was drafted as a result of, and in opposition to, the infamous “writs of assistance” that were issued by the British monarchs to enforce customs and revenue statutes. “English authorities [in the American colonies] made use of the writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ‘prohibited and uncustomed’ goods, and commanding all subjects to assist in the However, unlike the warrants of today, the Crown was not required to specify any particular person or place to be searched, nor present evidence of probable cause. Rather, the writs were “blanket warrants which, once issued by the British Sovereign, were in effect until six months after his [or her]

B. The Court's Warrant Requirement Standards

      In light of the political circumstances and the perceived legislative intent surrounding its drafting, the Supreme Court has interpreted the Fourth Amendment to expressly impose two requirements: (1) that “all searches and seizures must be reasonable”; and (2) that “a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with Further, the Court has declared that the Fourth Amendment has been incorporated and made applicable to the states via the Due Process Clause of the Fourteenth Amendment.

      As to the first requirement, the Court has often said, “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.”’

      As to the second requirement, it is predicated upon the standard of a warrant issued upon showing of probable cause. While the Amendment does not lay out the timeline for the issuance of the warrant, the Court has held that “a warrant must generally be secured [prior to the search taking Thus, “the Court frequently asserts that ‘the most basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval by [a neutral] judge or magistrate, are per se unreasonable.”’ However, the Court makes note that because the Fourth Amendment is predicated upon reasonableness, its warrant requirement is subject to certain delineated exceptions. “[These] exceptions are said to be ‘jealously and carefully drawn’ and there must be a showing by those who seek exemption that the exigencies of the situation made that course These so-called exigencies, taken together, have become known as the “exigent circumstances rule.” Nevertheless,“the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ‘reasonable’ belief [i.e., probable cause] that an exception to the warrant requirement

      It is important to note that the probable cause standard most often cited in exigent circumstances cases is the Supreme Court's test in Beck v. The Beck test inquires, “whether at [the moment the entry and/or arrest was made] the facts and circumstances within [police] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an

C. Johnson v. United States: The Smell of Drugs Constitutes Probable Cause Only

      Sixty-three years before the Supreme Court issued its decision in King, the Court set forth a precedential standard for warrantless search and seizure in drug cases with its decision in Johnson v. United In this case, a Seattle police narcotics agent received information from an informant that persons at a certain hotel were engaged in smoking opium. The Seattle officer then called in four federal narcotics agents who entered the hotel and followed the “unmistakable” odor of opium to a certain room. Without ascertaining who was in the room, the policemen approached the door and knocked. The occupant inquired as to whom was at her door and the Seattle officer replied with his name and rank (indicating he was a After a short time and some sounds of “shuffling or noise,” the occupant opened the door and acquiesced to the officers' request to enter the room. The officers questioned the woman about the opium smell coming from the room and she denied any such smell. After her uncooperative remarks, the policemen placed the woman under arrest and informed her they were going to search the room. Invariably, the search turned up some amount of opium and a still-warm opium smoking “apparatus.” The opium itself was found in a suitcase, while the paraphernalia was found under the bed covers.

      The occupant of the room, Anne Johnson, was charged with and convicted of four violations of federal narcotics laws. In her trial, Ms. Johnson contended that the search of the hotel room (apparently her home at the time) was contrary to her rights under the Fourth Amendment to the Constitution of the United States. Specifically, she alleged that because the search was instigated without a warrant, the charges would have no support without the evidence secured through the illegal search. The government, in defending the actions of the officers, alleged that the search was incident to a lawful arrest.

      1. The Holding

      The United States Supreme Court granted writ and found error in the actions of the federal narcotics agents.

      Odors themselves are not grounds for warrantless search. First, the Court stated that:

       At the time entry was [demanded, the officers possessed evidence] which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain that odors cannot be evidence sufficient to constitute probable grounds for any search If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.

      Police must yield to the warrant requirement. Second, the Court went on to outline the meaning and necessity of the Fourth Amendment as a guard of a citizen's privacy against law enforcement:

       The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.

      Possible exceptions to the warrant requirement. Third, the Court went on to postulate that there are “exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed Specifically, it speculated there were at least two situations when a search could be undertaken lawfully without a warrant: (1) when “a suspect is fleeing or likely to take flight”; and (2) when “evidence or contraband is threatened with removal or destruction” with the exception of fumes or other evidence not susceptible to presentation in court. However, the Court found that no such exception was present in this case.

D. Building Blocks of Exigent Circumstances Rule

      Using dicta from Johnson, which stated there were certain exceptional circumstances when the Fourth Amendment's warrant requirement could be overridden, the Supreme Court developed the “exigent circumstances rule” over the next half-century. The Supreme Court reaffirmed its existence in deciding Payton v. New York by declaring, “[It is a] long-settled premise that, absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found

      The exigent circumstance rule is not a single rule, but rather, multiple exigent circumstances (each with its own logical tests to determine reasonableness) that focus on a narrow set of circumstances when they may be employed. Specifically, the Court has recognized at least five separate exceptions when law enforcement may enter a home without a warrant: (1) to fight a fire and investigate its cause; (2) when engaged in ““hot pursuit” of a fleeing suspect; (3) to render emergency assistance to an injured occupant or to protect him from imminent injury; (4) when the safety of law enforcement officers or the general public is immediately threatened, and (5) to prevent the imminent destruction of evidence.

      In regards to the latter exception, the lower courts have developed a safeguard in order to prevent police from applying this exception to subvert the warrant requirement. This exception to the exigent circumstances rule did not develop linearly but in multiple state supreme courts and the United States Courts of Appeals. It has been dubbed the “police-created exigency.”

E. The “Police-created Exigency” Doctrine (P.C.E.D.)

      Each court's police-created exigency, over time, has been linked to comprise the police-created exigency doctrine. The doctrine, like each individual exigency, is a preventative measure designed to limit police officers from creating supposed exigent circumstances in order to subvert the warrant requirement of the Fourth Amendment.

      In outlining the need for a safeguard against police, the Sixth Circuit differentiated an actual exigent circumstance from a police-created exigency. The court stated, when an exigency (a true emergency) exists, “there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative. The burden is on those seeking the exemption to show the need for Whereas, when law enforcement officials initiate a warrantless search, it must be in response to an actual ““emergency” that is “inadvertent or unanticipated.” In other words, where the police know, or suspect in advance, the location of contraband or the evidence of a crime and intend to seize it, the situation is altogether different. Therefore, “[F]or a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for

      Additionally, cases previously decided by the Sixth Circuit required evidence that the police acted deliberately to evade the warrant requirement. Therefore, even if the search could be anticipated, the circuit court would require some showing, albeit small, that the police purposefully acted to create the supposed exigency.

F. Kentucky v. King: The Court Replaces P.C.E.D. with ““Reasonableness” Standard

      As previously stated, the police-created exigency doctrine did not develop as a clear and definite standard along a single pathway. Instead, the doctrine was recognized, analyzed, and altered by many of the circuits of the United States Courts of Appeals and various state courts. Some jurisdictions added subjective tests such as good or bad faith requirements. Nevertheless, it is apparent, that at the time of the hearing of King in January 2011, there were at least six jurisdictions employing a police-created exigency doctrine in their decisions.

      In King, the United States Supreme Court finally had its chance to clarify both the existence of the police-created exigency doctrine and its test for implementation. On October 13, 2005, several Lexington-Fayette County (Kentucky) Police officers were conducting a controlled buy of “crack” cocaine near an apartment complex. One undercover officer observed the drug buy from an unmarked car in a nearby parking lot. After the exchange occurred, the officer radioed two uniformed officers to move in to apprehend the alleged buyer. The uniformed officers arrived at a nearby parking lot, left their patrol car, and ran toward the apartment complex. However, as the uniformed officers were approaching the apartment complex, the suspect entered a breezeway. When the undercover officer realized that the uniformed officers would lose sight of the suspect (who did not seem to be unaware of the pursuing police), he radioed them to “hurry, in order to keep the suspect from entering an

      When the uniformed officers rounded the corner of the breezeway, they heard a door slam shut and observed two doors at the end of the corridor. After approaching the doors, the officers noticed the odor of marijuana emanating from the left door. As they were unsure what apartment the suspect had entered, they believed based upon the strong odor of the marijuana that the left door had recently been opened, and thus, the suspect was likely to have entered the left apartment.

      The officers knocked loudly on the left door and announced “police.”“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 The officers then announced their intent to enter the apartment and kicked in the door. After entering and conducting a protective sweep to locate the original suspect, they found Hollis King and two others sitting on couches in the apartment. They also observed “approximately twenty-five grams of marijuana and four point six ounces of powder cocaine in plain After a further search, they failed to locate the original suspect, but did discover amounts of drugs and other items consistent with the distribution and sale of illegal drugs.“Police eventually entered the back right apartment, and found the suspected drug dealer who had been the original

      At the pre-trial hearing, King entered a motion to suppress the evidence obtained in the search, contending that the police entry into the home was a warrantless, illegal entry. The government countered that the officers' entry, while warrantless, was subject to an exigent circumstance (destruction of evidence) so as to be lawful.

      After roughly six years of appeals heard at every possible state and federal level, on May 16, 2011, the United States Supreme Court decided the case (despite the State of Kentucky dropping King's In an 8-to-1 decision reversing the Supreme Court of Kentucky, the United States Supreme Court held: (1) warrantless entry pursuant to an exigent circumstance is permissible when police act reasonably, e.g., without violation or threatened violation of the Fourth Amendment, prior to the occurrence of the exigent circumstance; and (2) “[A]ny question about whether an exigency existed here is better addressed by the Kentucky Supreme Court on The accompanying majority opinion abrogated decisions by the Arkansas Supreme Court, and the First, Fourth, Fifth, Sixth, and D.C. Circuits of the United States Courts of Appeals, in their respective tests for the police-created exigency doctrine.

      1. The Majority Opinion

      The majority opinion was delivered by Justice Alito and joined by Justices Scalia, Kennedy, Thomas, Breyer, Sotomayor, Kagan, and Chief Justice Roberts. In its opinion, the majority undertook an analysis of the Fourth Amendment and its warrant requirement, the exigent circumstances rule, and the police-created exigency doctrine.

      Fourth Amendment's warrant requirement and exigent circumstances exceptions. In its constitutional analysis, the High Court affirmed that “[t]he Fourth Amendment expressly imposes two requirements: all searches and seizures must be reasonable; and a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with However, “the Court also reaffirmed that even though warrantless searches and seizures inside the home are presumptively unreasonable, they may be overcome by exigent circumstances, specifically the need to prevent the imminent destruction of

      Police-created exigency doctrine. While the Supreme Court left the determination of whether there was, in fact, an exigent circumstance to the Kentucky Supreme Court on remand, it disagreed with the Kentucky Court's test for the police-create exigency doctrine. Specifically, the Kentucky Supreme Court adopted the following two-part test:

       First, courts must determine “whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.”If so, then police cannot rely on the resulting exigency. Second, where police have not acted in bad faith, courts must determine “[w]hether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry.”If so, then the exigent circumstances cannot justify the warrantless entry.” In fact, the High Court questioned the very need for a police-created exigency doctrine, and took a two-part approach in overruling the two-tiered test created by the Kentucky Supreme Court.

      First, the Supreme Court reasoned, “the answer to the question is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same The Court agreed with the Eighth Circuit that “in some sense police always create the exigent especially when it relates to drug cases. In other words, because illegal drugs are so valuable but so easily disposed of, criminals in possession of drugs will not likely destroy them unless they expect the drugs will fall into the hands of the police. Consequently, the Court concluded, “a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant

      Second, the Supreme Court rejected the Kentucky Supreme Court's use of a subjective police-created exigency doctrine (specifically, the use of a bad faith tier) as improper. In its reasoning, the Court concluded that any test that is predicated upon the subjective intent of police officers (such as the bad faith tier) is inconsistent with standing jurisprudence. Specifically, the Court stated, “‘Our cases have repeatedly rejected’ a subjective approach, asking only whether ‘the circumstances, viewed objectively, justify the action.”’ The Court further reasoned, “Legal tests based on reasonableness are generally objective, and this Court has long taken the view that ‘evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.”’

      Third, the Court addressed the portion of the test for the police-created exigency doctrine that courts, including the Kentucky Supreme Court, employed to invalidate searches using a reasonably foreseeable test. The Court concluded, “The reasonable foreseeability test would create unacceptable and unwarranted difficulties for law enforcement officers who must make quick decisions in the field, as well as for judges who would be required to determine after the fact whether the destruction of evidence in response to a knock on the door was reasonably foreseeable based on what the officers knew at the In coming to this conclusion, the Court reasoned:

       Adoption of a reasonable foreseeability test would also introduce an unacceptable degree of unpredictability. For example, whenever law enforcement officers knock on the door of premises occupied by a person who may be involved in the drug trade, there is some possibility that the occupants may possess drugs and may seek to destroy them. Under a reasonability test it would be necessary to quantify the degree of predictability that must be reached before the police-created exigency doctrine comes into play.

             A simple example illustrates the difficulties that such an approach would produce. Suppose that the officers in the present case did not smell marijuana smoke and thus knew only that there was a 50% chance that the fleeing suspect had entered the apartment on the left rather than the apartment on the right. 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? Or suppose that the officers knew only that the suspect had disappeared into one of the apartments on a floor with 3, 5, 10, or even 20 units? If the police chose a door at random and knocked for the purpose of asking the occupants if they knew a person who fit the description of the suspect, would it have been reasonably foreseeable that the occupants would seek to destroy evidence?

      Probable cause standard of the Fourth Amendment. Fourth, the Court addressed another situation to which the police-created exigency doctrine has been applied. Specifically, where police officers, after acquiring evidence sufficient to establish probable cause, do not seek a warrant and instead knock on doors and seek to question the occupants. The Court noted previous decisions in which it has held that “law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable In other words, where the police have probable cause and continue to investigate, they do not violate the Fourth Amendment's warrant requirement. In its reasoning for this conclusion, the Court cited five specific reasons why this is the case: (1) “the police may wish to speak with the occupants of a dwelling before deciding whether it is worthwhile to seek authorization for a search”; (2) they may wish to seek consent for a search in order to absolve the need for a warrant; (3) they “may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application”; (4) “prosecutors may wish to acquire additional evidence in order to conduct a broader search that that which may be allowed by a weak showing of the evidence currently available”; and (5) “law enforcement may not want to execute a search that will disclose the existence of an investigation because doing so may interfere with the acquisition of additional evidence against those already under suspicion or evidence about additional but as yet unknown participants in a criminal

      Knock and talk. Fifth and last, the Court addressed a citizen's constitutional right to not answer the door when the police call. Specifically, the majority concluded that when police, unarmed with a warrant, knock on a person's door, they are doing nothing differently than a salesperson or other citizen may do on a daily basis. Indeed, per her constitutional right, the occupant of the home need not even answer the door, neither to speak to the police, nor to allow them inside the home. However, when occupants “chose not to stand on their constitutional rights [to not answer the door to police] but instead elect to attempt to destroy evidence [they] have only themselves to blame for the warrantless exigent-circumstances search that may

      The holding. Having abolished the police-created exigency doctrine, the Court established the new test for the exigent circumstances exceptions as: “[T]he exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth

      Applying this simplified reasonability test to the facts of the case, the Court held that there was no evidence that the police acted unreasonably and did not violate or threaten to violate the Fourth Amendment prior to their warrantless entry. In fact, the only instance the High Court gave when police could violate the Fourth Amendment in this situation was if the police had announced they would break down the door if King had not opened it. While the police did announce their intentions to enter the King residence, they did so after they heard noises indicating the destruction of evidence (the exigent Thus the Court concluded, as the exigency arose prior to the police announcing their intention to break the door to enter, the announcement could not and did not create the exigency.

      2. The Dissent

      Justice Ginsberg was the only Justice who dissented. In opposing the majority's view, she detailed the need for the police-created exigency doctrine as a check upon law enforcement. In her most powerful and ominous statement, Ginsberg appears to chastise the majority by stating:

       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 [sic] that they had ample time to obtain a warrant.
      First, Ginsberg disagrees that the majority's contention that the abolition of the police-created exigency doctrine “provides ample protection for the privacy rights that the Amendment Rather, she contends, “how “secure' do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful

      Second, Justice Ginsberg disagrees with the majority's view that the police did not create the exigency in the King case but were reacting to its creation by the defendant. She finds, “The existence of a genuine emergency depends not only on the state of necessity at the time of the warrantless search; it depends, first and foremost, on ‘actions taken by the police preceding the warrantless search.”’ In other words, if the police believe they are to find drugs or other evidence of a crime, they must apply for a warrant.“‘Wasting a clear opportunity to obtain a warrant,’ therefore, ‘disentitles the [police] officer from relying on subsequent exigent circumstances.”’ Subsequently, Ginsberg concurs with the Kentucky Supreme Court that the suspect's entry into the breezeway and the smell of marijuana seeping under the door were probable cause for a search warrant, and “nothing made it impractical for the police to post officers on the premises while proceeding to obtain a warrant authorizing their

      Third and last, the Learned Justice finds that the Court clearly departs from United States v. Johnson where the Court held that the smell of burning opium emanating from a hotel room justified probable cause for a warrant but did not justify a warrantless entry. In its explanation in Johnson, the Court declares:

       “The right of officers to thrust themselves into a home is a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a
             ....

       “If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of [any] case in which [a warrant] should be


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IV. Conclusion

      The United States Supreme Court in its decision in Kentucky v. King denounced and dismissed the police-created exigency doctrine previously endorsed by the United States Courts of Appeals. In dismissing the doctrine, the Court issued a holding in-line with its previous decisions finding little to no error in the actions of law enforcement officials. Further, it seems the Court has expanded the level of deference afforded to police in light of Fourth Amendment restrictions previously strictly upheld by the Court.

      Having analyzed various aspects of the effects of the Kentucky v. King decision upon the Fourth Amendment's prohibitions upon police, it seems that the next stage of evolution in law enforcement resembles the postulated DOPE taskforce. In this new era, police will conduct random raids upon housing complexes in areas plagued with high levels of drug trafficking. Freed from the former restrictions of the police-created exigency doctrine, these raids will focus on detecting drug use and exploiting the destruction-of-evidence exigent circumstance exception to the warrant requirement.

      Of the above postulated scenarios that might occur in a DOPE raid, one is particularly troubling, e.g., should the occupant acknowledge the officers but assert his or her right to refuse the officers' demand to open the door and further demand that the officers return with a warrant. In that scenario, it seems that the police might still enter should they believe the destruction of evidence is occurring. The majority in King seems to think this scenario is unfounded, as it forewarned, “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may Yet, what the majority fails to acknowledge is that even where the occupant invokes the Fourth Amendment, its opinion seems to allow the Amendment's protections to be overridden, if not nullified, by an illegal act within the home. That very notion seems to create a paradox: On one hand, the Fourth Amendment protects illegal acts from being discovered within the home. Yet, on the other hand, it is nullified (without the need for a warrant or visible evidence to legitimate probable cause) by those acts.

      In addition, these DOPE taskforces seem to have a particularly disparate impact upon low-income African-American and minority residents as they account for nearly seventy percent of persons living in government-subsidized urban housing While the reason for the taskforces would be to subvert the proliferation of drug use in high-crime areas, it will undoubtedly have a disproportionate racial impact upon the citizenry. While this discriminatory impact may invoke strict scrutiny application pursuant to the Civil Rights Act of 1964, it seems that states could easily bypass those restrictions by forgoing statutory measures in favor of discretionary law enforcement tactics.

      Regardless, one must not conclude that law enforcement officers will act to subvert the warrant requirement in every instance of a warrantless knock on the door. However, one may view the King decision as neutering the Fourth Amendment to the point that, should police deem it reasonable, they may completely ignore the required neutral magistrate.

      In the end, it remains to be seen how Kentucky v. King will affect warrantless home entries by police in criminal cases. Will the Court continue to give ever-increasing deference to law enforcement, or will it begin to strengthen the Amendment's protections of the citizenry against the state? Only time will tell. Yet, this author believes that with the rate at which the federal and state governments are able to monitor both the private and public lives of the citizenry, it is unlikely that “Big Brother” will be sent to his room anytime soon.

V. Recent Developments: King on Remand to the Kentucky Supreme Court

      On April 26, 2012, the Kentucky Supreme Court heard Kentucky v. King on remand. In a 5-2 decisions, the court confirmed the reversal of the Kentucky Court of Appeals, confirmed that King's conviction stands vacated, and remanded the case to the state district court. First, the court affirmed its previous holding that there was no “hot pursuit” in this case as the suspects were unaware that the police were following them. Second, because the “police were not in hot pursuit of a fleeing suspect [the court's analysis focused on the] imminent destruction of evidence and the totality of the circumstances from the time [the] police smelled marijuana emanating from the back left

      In its decision, the High Court of Kentucky concluded that the prosecution failed to show an exigency existed because the police officers' testimony failed to indicate what specific sounds which were indicative of the destruction of evidence. Specifically, the court stated:

       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.

      Nevertheless, the decision is quite interesting in that the Kentucky Supreme Court held (in-line with the United States Supreme Court) that the police did not create the exigency by violating or threatening to violate the Fourth Amendment. Yet, the court also held that the police failed to articulate that they possessed the requisite probable cause for an exigent circumstance. In other words, even though the police didn't threaten to break down the door (apparently), their subjective belief that the destruction of evidence was ensuing was not enough to create an exigent circumstance. Specifically, the Court stated:

       “[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]” Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to. [sic] defeat the presumption of an unreasonable search and seizure.

      Therefore, while some of the fears that police have been armed with a new way to routinely violate the Fourth Amendment's protection of the home have been relaxed by the Kentucky Supreme Court's decision, many fears remain. Specifically, this author fears that police may simply more assertively articulate the specifics of their beliefs that destruction of evidence is ensuing in order to justify the existence of an exigent circumstance. In the end, only time will tell whether the judiciaries of the several states will fall in-line with Kentucky, or whether they will allow the police to subvert the warrant requirement without the check of the once touted police-created exigency doctrine.

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