Kentucky V. King: Warrantless Entry into Residence Reasonable When Exigent Circumstances Exist That Were Not Created By Police
By: Houston Criminal Lawyer John Floyd and Billy Sinclair
The Fourth Amendment to the United States Constitution has historically protected Americans from unreasonable searches and seizures by law enforcement officials. The Fourth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. The Fourth Amendment has two long recognized clauses: First, the prohibition against unreasonable searches and seizures; and, second, the requirement that probable cause be established before a search warrant is issued. There are “exigent circumstances” to these two constitutional requirements which allows law enforcement officials to conduct warrantless searches when 1) there is possible imminent destruction of evidence; 2) a real threat to the safety of the general public or law enforcement officials exist; 3) the police are in “hot pursuit” of a suspect; or 4) there is a likelihood that a suspect will flee before law enforcement can obtain a warrant.
The U.S. Supreme Court, in Kentucky v. King (May 16, 2011), recently expanded what has been called the “police-created exigency” doctrine in warrantless “kick down the door” searches of a residence. While the warrantless search of a home without a warrant has been traditionally viewed as presumptively unreasonable, law enforcement officials have been allowed to bypass this constitutional impediment when the “exigencies of the situation” make it reasonable to conduct a warrantless search of a suspect’s home. Over the years a number of state and federal courts formulated a rule that the police may not rely upon “exigent circumstances” to justify warrantless searches when the “exigency” was created or manufactured by the police. The Fifth Circuit Court of Appeals, in United States v. Gould (en banc), put it this way: “[A]lthough exigent circumstances may justify a warrantless probable cause entry into a home, they will not do so if the exigent circumstances were manufactured by the agents.”
The Kentucky Supreme Court, in King v. Kentucky (Feb. 11, 2010), followed the lead of the Fifth Circuit, and other federal circuits, when it reversed the drug conviction of Hollis King. The Lexington police conducted a “controlled buy” of crack cocaine outside of an apartment complex. The drug dealer/target of their investigation engaged in a sell of the drug which was witnessed by an undercover agent. Once the transaction was over and while the drug dealer was moving quickly toward the breezeway of the apartment, the undercover agent instructed uniformed officers to “hurry up and get there” before the dealer entered the apartment complex. Just as the uniformed officers arrived at the breezeway, they heard an apartment door shut and “detected a very strong odor of burnt marijuana.” The uniformed officers were looking at two apartments—one on the right, the other on the left. They were not sure which one the drug dealer had entered. Because they smelled the burnt marijuana in the apartment on the left, they believed that was the one the suspect had entered.
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