Supreme Court Review: Fourth Amendment, Part One — Kentucky v. King

In preparation for a talk I’m giving next month, I am reviewing all of the Supreme Court’s criminal cases from last term.  I’ll share my thoughts in a series of posts over the next couple of weeks.  I begin here with the Court’s two major Fourth Amendment cases: Kentucky v. King, 131 S. Ct. 1849 (2011), and Davis v. United States, 131 S. Ct. 2419 (2011).

For better or worse, both decisions showcase the strongly pro-police position of the current Court.  Both decisions accord a great deal of weight to the convenience of law enforcement officers and reflect a strong bias against suppressing evidence and thereby letting a guilty defendant walk free.  Although this has been the Court’s dominant sensibility for years, I think it noteworthy that neither King nor Davis was a 5-4 or even a 6-3 decision.  It appears that the addition to Justices Kagan and Sotomayor may have actually shifted the Court further to the right on Fourth Amendment issues.

It may be telling that both decisions are written by Justice Alito, who has struck me in a variety of contexts as the most reflexively antidefendant justice on the Court today — the real heir of Chief Justice Rehnquist in this regard.  If Alito is now the Court’s voice on Fourth Amendment issues, then we can expect significant further erosion of Fourth Amendment rights in the years to come.

Justice Ginsburg seems to be on the opposite end of the spectrum.  Only she dissented in both cases.  With Justices Souter and Stevens gone, is Ginsburg the last Fourth Amendment hawk left on the Court?

King: The first of the two cases (and the subject of the remainder of this post) broadens the exigent circumstances exception to the general rule against warrantless searches of the home.


Here’s what happened. Smelling marijuana smoke emanating from an apartment, police knocked on the door and announced their presence.  From inside, they heard sounds of movement that led them to believe that evidence was about to be destroyed.  After kicking in the door, they found marijuana and cocaine in plain view.  After King’s conviction on drug charges, the Supreme Court of Kentucky held that the search did not fall within the exigent circumstances exception because the police themselves had created the exigency; if the police had not pounded on the door, then there would have been no risk of the drugs being flushed down the toilet.

The U.S. Supreme Court reversed, holding, “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”  (slip. op. at 8)  This holding, according to the Court, “follows clearly and directly” from the basic reasonableness standard that controls Fourth Amendment analysis.  (8)  It is reasonable for police to knock on the door when they have reason to believe there are drugs inside, and also reasonable then to kick the door in when there are sounds of movement inside.

But why is this reasonable?  Because, the Court reasoned, “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.”  (16)  The occupants may then either remain silent or answer the door and refuse entry to the police.  However, occupants who “elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.”  (16)  So, there is an assumption of culpability on the part of the occupants that ultimately seems to drive the analysis.

The Court doesn’t seem to recognize a fourth possibility when police come knocking besides remaining silent, answering the door, and destroying evidence: there are any number of reasons why the occupants might make sounds inside for innocent reasons — children might be playing; fearing an armed police intrustion, occupants might be taking cover; an infirm occupant might be moving slowly to open the door; occupants might be in the middle of rearranging the furniture when police come to call; and on and on.  Any sound is likely to be construed by police as the destruction of evidence.  In King itself, for instance, here is how the police justified the inference that evidence was being destroyed: they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.”  (2)  Again, those sounds are equally consistent with any number of perfectly innocent actions.

So, the Court is really saying this: “If you hear the police knock and announce their presence, then you must either drop everything and answer the door right away or remain perfectly silent until the police leave.  Otherwise, you are blameworthy and deserve to have your door kicked in.”  Reasonable?

If your answer is yes, does that answer depend on your living in the right neighborhood and having the right skin color, sex, and age such that your contacts with police are normally positive and respectful?  Remember you don’t have the luxury to hesitate or weigh your options when the police show up — if you wait too long, you are apt to have the door kicked in before you can answer it.

What about the culpability of the police?  Having probable cause, aren’t the police blameworthy when they fail to get a warrant before trying to enter the home?  No, said the Court:

There are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired. Without attempting to provide a comprehensive list of these reasons, we note a few.

First, the police may wish to speak with the occupants ofa dwelling before deciding whether it is worthwhile to seek authorization for a search. They may think that a short and simple conversation may obviate the need to apply for and execute a warrant. See Schneckloth v. Bustamonte, 412 U. S. 218, 228 (1973). Second, the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant. A consensual search also “may result in considerably less inconvenience” and embarrassment to the occupants than a search conducted pursuant to a warrant. Ibid. Third, law enforcement officers may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application. Fourth, prosecutors may wish to wait until they acquire evidence that can justify a search that is broader in scope than the search that a judicial officer is likely to authorize based on the evidence then available. And finally, in many cases, law enforcement may not wantto 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 scheme.  (13)

In essence, all of this is to say that police who create an exigency by knocking on the door are not blameworthy because they are motivated by their own convenience.  But surely police convenience cannot put the matter to rest.  It may be highly convenient to beat a confession out of a suspect, but we would never say that officers were blameless for doing so.

Shouldn’t the ideal be for police officers to err on the side of caution when it comes to things like kicking in doors and invading the private spaces of the home?  Have we become so captivated by the thrill of the police raid — depicted so often in such heroic ways on TV — that we cannot recognize the force of the constitutionally protected interest in the privacy of our homes?  The warrant requirement puts a brake on precipitous police action, preventing police from kicking in doors based on snap judgments potentially made in highly emotionally charged settings (like the setting in King, in which police were in hot pursuit of a suspect and, in a sense, kicked in the wrong door — the suspect they were seeking was not inside).

If we are willing to take seriously the idea that police officers ought to err on the side of caution and obtain a warrant in the absence of a true emergency, then we might be able to see culpability on the part of officers who choose to provoke an emergency rather obtain a warrant.  And if there is culpability on the part of the officer, how can we say it is necessarily any less than the culpability of the citizen who fails to respond promptly when officers knock on the door?

In the end, I’m not sure the blame game gets us anywhere.  It is hard to avoid making culpability judgments when assessing reasonability, though.  In this regard, manifestly guilty defendants seeking to suppress otherwise reliable evidence are hardly likely to get any benefit of the doubt.  I wonder how different Fourth Amendment law would look if its content were driven not by the litigation of suppression motions in criminal cases, but by the litigation of civil claims brought by innocent plaintiffs who were subjected to fruitless searches and seizures.  (Note, for instance, the study discussed here, which indicates that more than 90 percent of traffic-stop searches fail to uncover incriminating evidence.)  For every guilty defendant subjected to a constitutionally dubious intrusion, there may be many innocent citizens who suffer from similar invasions of privacy.  These innocents seem entirely absent from the Court’s consideration.

But the world of innocence-driven Fourth Amendment law is not our own.  And when we assume that the victims of police intrusions are bad guys, then the culpability of officers who choose not to go to the trouble of obtaining a warrant will seem relatively small or nonexistent.

King suggests only one limitation on the ability of police to proceed without a warrant and try to create an exigency:

There is a strong argument to be made that, at least in most circumstances, the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted.  (8 n.4)

I take it that this qualification reflects a concession that the police would be quite culpable if they threatened entry without a legally sound basis.  Yet, isn’t there always an implicit threat of forced entry whenever police pound on the door and announce their presence.  Here’s what the police did in King:

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud as [they] could” and announced, “‘This is the police’” or “‘Police, police, police.’”  (2)

If police announced their presence so forcefully at my front door, I think my assumption would be that the police were coming in, with or without my cooperation.  And I imagine it is precisely the officers’ intent in such situations to minimize the extent to which occupants feels that they have a choice about letting the officers in.

This line of thinking seems to be what King had in mind, arguing for this rule: “Respondent contends that law enforcement officers impermissibly create an exigency when they ‘engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.’”  But the Court shot down the proposed rule as impractical:

If respondent’s test were adopted, it would be extremely difficult for police officers to know how loudly they may announce their presence or how forcefully they may knock on a door without running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that thresholdhad been passed. The Fourth Amendment does not require the nebulous and impractical test that respondent proposes.  (14)

This reasoning seems to foreclose any possibility of developing a theory of implied threats.  Are police free to make as forceful and coercive a showing at the door as they wish, as long as they do not actually say the words “we are coming in?”