# SCOTUS ruling regarding "exigent circumstances" and searches. **URL:** \ **Category:** Great Debates\ **Created:** [May 18, 2011, 3:31pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330 "2011-05-18T15:31:19Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![carlb](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carlb/32/5930_2.png) [@carlb](https://boards.straightdope.com/u/carlb)\ **Post date:** [May 18, 2011, 3:31pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/1 "2011-05-18T15:31:19Z")
I saw in the news on Monday that the Supreme Court issued its ruling in [Kentucky v. King](http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf), which concerned the issue of a warrantless search due to what the state contended were “exigent circumstances.” As I understand it, the basics went like this: [ul] [li]An undercover police officer witnessed a drug deal, and called uniformed officers to apprehend the dealer, urging them to hurry before he entered an apartment nearby.[/li][li]The uniformed officers arrived too late to witness the suspect entering an apartment, and did not hear a radio call from the first officer directing them to the apartment the suspect entered.[/li][li]The uniformed officers were faced with a choice of two possible apartments the suspect may have entered, and smelled marijuana coming from one of these apartments.[/li][li]The uniformed officers knocked on this apartment door and announced their presence.[/li][li]Upon knocking, the uniformed officers heard noises they believed consistent with removal or destruction of evidence, and so entered the apartment.[/li][li]The uniformed officers found marijuana and cocaine, and arrested the occupants of the apartment, who were charged with various drug-related crimes.[/li][/ul] The suspect that was originally identified as having taken part in a drug deal was actually in the _other_ apartment (the one the uniformed officers did not enter). Defense moved to suppress the evidence from the search, and the Circuit Court denied the motion. The Kentucky Court of Appeals affirmed, but the Kentucky Supreme Court reversed. It then went to SCOTUS. The argument appears to center around the defense’s assertion that the police created the exigent circumstances by knocking and announcing their presence while not in possession of a warrant. If I understand defense’s argument correctly, if the police had sufficient reason to believe that drugs were present, they could have obtained a warrant and returned to “properly” enter the apartment; the idea being that evidence would have still been present, since the defendants would have had no reason to destroy it, since they didn’t know the police were interested in them. By announcing their presence while not in possession of a warrant, they created a scenario in which the defendants might attempt to destroy evidence, and hence created a scenario allowing them to enter without a warrant. When I first read summaries of the ruling, it seemed like a drastic revision of warrantless search rules as I understand them. Having read the details of the arrest, it doesn’t seem quite so egregious, but I still find it bothersome. My (uneducated, non-lawyerly) gut is on the side of the defendant; there seems nothing so immediately dangerous that the police couldn’t have obtained a warrant prior to entering. So, I guess I’m interested in your reactions to this. Attorneys, I’m particularly interested in how this fits with prior case law - is this a radical change in the way such searches are viewed, or is it just a further definition of the circumstances in which they may be conducted, or somewhere in between. It was an 8-1 decision, so it suggests to me that this wasn’t some terribly divisive issue, but I am not familiar enough with reading SCOTUS decisions to be able to tell if this was a very narrowly applicable decision, or if it has long-reaching implications. Any thoughts? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [May 18, 2011, 4:25pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/2 "2011-05-18T16:25:45Z")
I found this paragraph a reasonable summary of what SCOTUS did here: _We, too, assume for purposes of argument that an exigency existed. We decide only the question on which the Kentucky Supreme Court ruled and on which we granted certiorari: Under what circumstances do police impermissibly create an exigency? Any question about whether an exigency actually existed is better addressed by the Kentucky Supreme Court on remand_ The court ruling means that if the circumstances of this case constitute an exigency, then the search was valid under the Fourth Amendment. It leaves it up to the State Court to determine whether there was an actual exigency or not. Mr. King may still walk if the Kentucky Supreme Court decides that the circumstances here do not qualify as an exigency. ---
**Author:** ![buddha\_david](https://avatars.discourse-cdn.com/v4/letter/b/ee7513/32.png) [@buddha\_david](https://boards.straightdope.com/u/buddha_david)\ **Post date:** [May 18, 2011, 5:15pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/3 "2011-05-18T17:15:56Z")
[quote=“carlb, post:1, topic:582330”] [li]The uniformed officers were faced with a choice of two possible apartments the suspect may have entered, _ **and smelled marijuana coming from one of these apartments.** _[/li][/QUOTE] This part sounds like there was enough probable cause for the police to believe a crime was taking place inside the apartment, especially since they were already in pursuit of a known suspect. Being a case of mistaken identity (“Oops, my bad!”) does not change that fact. Sounds cut & dry to me – I’m perplexed as to why the appellate court even bothered to hear this case. 😕 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 18, 2011, 5:29pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/4 "2011-05-18T17:29:48Z")
> [@carlb](#): > > Attorneys, I’m particularly interested in how this fits with prior case law - is this a radical change in the way such searches are viewed, or is it just a further definition of the circumstances in which they may be conducted, or somewhere in between. The only change to case law is that the variety of lower court rules concerning police conduct in creating exigent circumstances are now replaced with a single rule: that the police do not create exigent circumstances when acting lawfully by knocking on the door. They did not, in other words, create the exigent circumstances merely by knocking on the door, an act they are legally able to do without a warrant. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [May 18, 2011, 6:03pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/5 "2011-05-18T18:03:49Z")
I’m curious too? Can cops come in if they smell marijuana or other drugs coming from a residence? I’d kind of assume that would fall under being “in plain sight” even though its obviously not a “sight”. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 18, 2011, 6:10pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/6 "2011-05-18T18:10:25Z")
“…and so entered the apartment…” They “entered”. May I assume this delightful bit of euphemism is approximately similar to “they broke the door down”? Which creates an inherently dangerous circumstance, does it not? Because they smelled burning marijuana? Good Heavens, really? Well, no wonder they felt compelled to “enter”, there was marijuana burning! The law is a wonder, is it not? By careful parsing and looking at the stupid situation from just the right angle, it becomes perfectly sensible. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 18, 2011, 7:15pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/7 "2011-05-18T19:15:10Z")
> [@Simplicio](#): > > I’m curious too? Can cops come in if they smell marijuana or other drugs coming from a residence? I’d kind of assume that would fall under being “in plain sight” even though its obviously not a “sight”. No. Merely smelling marijuana would give rise to probable cause, but not to the exigent circumstances that would permit warrantless entry. If they smell marijuana, they could swear to that fact and get a judge to issue a search warrant, but not simply break in. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 18, 2011, 7:20pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/8 "2011-05-18T19:20:10Z")
It seems like too much of a free pass for officers - “I knocked on the door as loud as I could and identified myself as a police officer. Then I heard what sounded like destruction of evidence and I smelled weed, so I broke in.” It’s not the issue in the case at hand, since I’m fine with the knocking. But just “I thought I smelled weed and heard rustling that sounded like destruction of evidence” is considered exigent circumstances? Weak. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 19, 2011, 1:02am UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/9 "2011-05-19T01:02:52Z")
> [@Bone](#): > > It seems like too much of a free pass for officers - “I knocked on the door as loud as I could and identified myself as a police officer. Then I heard what sounded like destruction of evidence and I smelled weed, so I broke in.” It’s not the issue in the case at hand, since I’m fine with the knocking. But just “I thought I smelled weed and heard rustling that sounded like destruction of evidence” is considered exigent circumstances? Weak. ..along with the sounds of a victim in distress. They should just go for a victim who is in distress while at the same time the victim is destroying evidence and smoking marijuana. Cover all exigent circumstances just so our overlords can break down the door to any private home at their leisure. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 19, 2011, 2:30am UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/10 "2011-05-19T02:30:05Z")
What was the intent of the police when they went up to the apartments? If they went up there with the intent of searching the apartment it was probably unjustified - they had the opportunity of waiting and seeking a warrant. But if they went to the apartment to further an investigation (for which they had reasonable grounds) and upon announcing their presence heard evidence apparently being destroyed, that created exigent circumstances for them to enter the apartment. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 19, 2011, 9:18pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/11 "2011-05-19T21:18:37Z")
What is the sound of evidence being destroyed? If police knock on my door and announce their presence, and I’m in the bathroom dropping off the kids and flush, they can break in w/o a warrant?\* \*I realize this isn’t new as a result of this case. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 19, 2011, 9:44pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/12 "2011-05-19T21:44:45Z")
> [@Little\_Nemo](#): > > What was the intent of the police when they went up to the apartments? If they went up there with the intent of searching the apartment it was probably unjustified - they had the opportunity of waiting and seeking a warrant. But if they went to the apartment to further an investigation (for which they had reasonable grounds) and upon announcing their presence heard evidence apparently being destroyed, that created exigent circumstances for them to enter the apartment. Cop: Could you repeat that, Little Nemo, I want the one that allows me to break down the door without a warrant. The second one, you say? Put me down for that one. ---
**Author:** ![redtail23](https://avatars.discourse-cdn.com/v4/letter/r/3e96dc/32.png) [@redtail23](https://boards.straightdope.com/u/redtail23)\ **Post date:** [May 19, 2011, 9:56pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/13 "2011-05-19T21:56:53Z")
> [@Bricker](#): > > No. Merely smelling marijuana would give rise to probable cause, but not to the exigent circumstances that would permit warrantless entry. If they smell marijuana, they could swear to that fact and get a judge to issue a search warrant, but not simply break in. But by knocking and announcing themselves after they smell something they think may be marijuana, then a warrantless entry is OK. You know, as long as they have some reason (suspicious noise, no noise is also suspicious, whatever) to say that they thought someone might be destroying evidence. Right? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 20, 2011, 1:29pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/14 "2011-05-20T13:29:59Z")
> [@redtail23](#): > > But by knocking and announcing themselves after they smell something they think may be marijuana, then a warrantless entry is OK. You know, as long as they have some reason (suspicious noise, no noise is also suspicious, whatever) to say that they thought someone might be destroying evidence. > > Right? No. Unless the word “whatever” in your post above means something I don’t understand. When they smell marijuana, they have probable cause. To effect a warrantless entry, they need additional evidence that exigent circumstances (such as the destruction of evidence) exist. Noise that is consistent with the destruction of evidence would suffice, but not a case of “no noise is also suspicious.” Noise that included a voice yelling, “If you don’t have a warrant, go away!” would also not suffice. Nor would noise of a ping pong game, a Wii Super Smash Bros match, or a clarinet playing the scales. ---
**Author:** ![not\_what\_you\_d\_expect](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/not_what_you_d_expect/32/3246_2.png) [@not\_what\_you\_d\_expect](https://boards.straightdope.com/u/not_what_you_d_expect)\ **Post date:** [May 20, 2011, 1:43pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/15 "2011-05-20T13:43:46Z")
Do I understand this correctly? If I’m having sex, while burning incense that smells like marijuana and upon a knock on the door, I make noises that sound like I’m destroying evidence, but is actually just my partner and I trying to get decent, the police can go ahead and come on in? If so, then I find this disturbing. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 20, 2011, 1:50pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/16 "2011-05-20T13:50:54Z")
> [@Raginghormonal](#): > > Do I understand this correctly? If I’m having sex, while burning incense that smells like marijuana and upon a knock on the door, I make noises that sound like I’m destroying evidence, but is actually just my partner and I trying to get decent, the police can go ahead and come on in? > If so, then I find this disturbing. I’m trying, and failing, to imagine how noises made getting dressed might sound like destroying evidence. But yes. The threshold for a search has always been “probable cause,” ever since the Fourth Amendment was adopted in 1789. “Probable cause” means just that – it does NOT mean certainty. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [May 20, 2011, 7:38pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/17 "2011-05-20T19:38:22Z")
> [@buddha\_david](#): > > This part sounds like there was enough probable cause for the police to believe a crime was taking place inside the apartment, especially since they were already in pursuit of a known suspect. Being a case of mistaken identity (“Oops, my bad!”) does not change that fact. > > Sounds cut & dry to me – I’m perplexed as to why the appellate court even bothered to hear this case. 😕 Yeah but you’re not allowed to bust down a door because you suspect someone is smoking pot, are you? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 21, 2011, 10:03am UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/18 "2011-05-21T10:03:55Z")
> [@Bricker](#): > > I’m trying, and failing, to imagine how noises made getting dressed might sound like destroying evidence. > > But yes. The threshold for a search has always been “probable cause,” ever since the Fourth Amendment was adopted in 1789. “Probable cause” means just that – it does NOT mean certainty. Is there a list of noises that normally occur in a residence that can be deciphered from outside with any certainty? Noises consistent with destroying evidence (flushing toilet, opening windows, etc) seem to also be consistent with innocuous activity as well. Unless audio recording of such noises is available for examination after the fact, this method for determining exigent circumstances seems like it provides so little safeguard against abuse as to cause more harm than good. I tend to agree with [Josh Blackman’s latest post](http://joshblackman.com/blog/?p=7026) on the subject and question the rationale for including the obtaining of evidence about to be destroyed as an exigent circumstance. The bar to circumventing a fundamental enumerated right should be much higher than the mere collection of evidence. Can you elaborate on the genesis of the “destroying evidence = exigent circumstances” jurisprudence? Does it stem from People vs. Ramey (1976)? (google turns up lots of results surrounding the current case) ---
**Author:** ![Aversin](https://avatars.discourse-cdn.com/v4/letter/a/53a042/32.png) [@Aversin](https://boards.straightdope.com/u/Aversin)\ **Post date:** [May 21, 2011, 12:31pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/19 "2011-05-21T12:31:48Z")
> [@SCOTUS PDF From OP](#): > > Id., at 22–23. Cobb said that “[a]s soon as [the officers] started banging on the door,” they “could hear people inside moving,” and “\*t sounded as [though] things were being moved inside the apartment.” Id., at 24. These noises, Cobb testified, led the officers to believe that drug related evidence was about to be destroyed. So they heard things being moved within the apartment, here is a list of reasonable things it could have been other than the spoliation of evidence. [ol] [li]A loud movie featuring a character moving furniture[/li][li]Actual moving of furniture[/li][li]People wrestling[/li][li]A fold-out couch/bed being put away[/li][li]A fat person walking heavily[/li][li]A house pet knocking things over[/li][li]Someone playing Dance Dance Revolution[/li][li]Someone exercising loudly[/li][li]Someone unpacking/packing[/li][li]A person constructing a new desk[/li][li]Any other number of reasonable legal activities one might happen to be doing when the police show up.[/li][/ol] Unless the linked document is missing some key details(which I doubt) I’d say these cops were in the wrong, and this was a bad call. Justice Ginsburg said it better than I am capable of doing, the following paragraphs I’ve quoted are excerpts from pages 25-27 of the OP’s PDF. > [@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. > > This case involves a principal exception to the warrant requirement, the exception applicable in “exigent circumstances.” See ante, at 6–7. “[C]arefully delineated,” the > exception should govern only in genuine emergency situations. Circumstances qualify as “exigent” when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape. Brigham City v. Stuart, 547 U. S. 398, 403 (2006). The question presented: May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct. > > 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.” United States v. Coles, 437 F. 3d 361, 367 (CA3 2006). See also United States v. Chambers, 395 F. 3d 563, 565 (CA6 2005) (“[O]fficers must seek a warrant based on probable cause when they believe in advance they will find contraband or evidence of a crime.”). “[W]asting a clear opportunity to obtain a warrant,” therefore, “disentitles the officer from relying on subsequent exigent circumstances.” S. Saltz-burg & D. Capra, American Criminal Procedure 376 (8th ed. 2007). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 21, 2011, 4:30pm UTC](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330/20 "2011-05-21T16:30:07Z")
I actually agree with Ginsburg. The world is ending today. 😉 [Next page](https://boards.straightdope.com/t/scotus-ruling-regarding-exigent-circumstances-and-searches/582330.md?page=2)