In Kentucky v. King, 09-1272, police were pursuing a fleeing felon when he ducked into an apartment building. Not knowing exactly where the pursued was hiding, officers decided to pound on the door from which a distinct waft of marijuana was escaping. After they pounded three times the officers heard what they believed were sounds consistent with the destruction of evidence. Upon entering and conducting a protective search, the officers spotted large quantities of marijuana and cocaine in plain view. All occupants of the apartment were placed under arrest.
The Kentucky Supreme Court reversed an appellate court’s denial of a motion to suppress. The state argued that both “hot pursuit” and “exigent circumstances” justified the warrantless intrusion. The state court disagreed. Although asked to address both issues, the Supreme Court will only hear arguments regarding warrantless entry into a home under exigent circumstances created by the police.
Cert was granted due to the significant split in authority among the Circuit Courts. In United States v. McDonald, 916 F 2d 766, an En Banc panel of the Second Circuit Court of Appeals adopted a rule that simply asks whether police have acted in a lawful manner, without regard to their subjective intentions. “Thus assuming arguendo that there were no exigent circumstances before the knock, the agents’ conduct did not impermissibly create the circumstances occurring thereafter. “id., at 771.
Other Circuits have taken a much more in depth look into both the motives of the officers and the expected reasonable responses by occupants. The First and Seventh Circuits look only to see whether law enforcement was unreasonable in its delay in obtaining a warrant. The Sixth, Ninth, Tenth, Eleventh and D.C. Circuits, will only suppress evidence when the unreasonable delay is coupled with deliberate conduct in an attempt to evade the warrant requirement.
The Third and Fifth Circuits have adopted a two part test. The first inquiry involves bad faith. If it is found that police have acted deliberately and with bad faith in creating an exigency to evade the warrant requirement the motion to suppress will be granted. Even if bad faith is not found, however, the court must inquire further. The second prong examines the reasonableness of the officers’ actions. Inquiry into whether the exigency existed prior to police activity and whether the investigative tactics triggered the exigency are factors the court will examine.
The Fourth and Eighth Circuits look to the foreseeability of results of the police actions. Here, suppression will be granted if the police impermissibly create the exigency at issue because the exigency was a reasonably foreseeable result of the officers’ actions.
When prosecuting a motion to suppress, defense attorneys often attempt to show that police possess little if any incriminating information regarding their client. In this area, however, the defendant is better served if law enforcement has significant information tying the defendant to criminal activity. If it can be shown that rather than taking the time to procure a warrant, the agents have acted in a manner which creates an exigent circumstance, the motion will prevail under the test set forth in the Third, Fourth, Fifth and Eighth Circuits. Let’s hope when Kentucky v. King is decided it is the test from one of these Circuits which becomes the law of the land.