Kentucky v. King (2011)

563 U.S. _____ (2011)
Oral arguments are available at:

Vote: 8 (Alito, Breyer, Kagan, Kennedy, Roberts, Scalia, Sotomayor, Thomas
1 (Ginsburg)

Opinion of the Court: Alito
Dissenting opinion: Ginsburg


On October 13, 2005, Lexington, Kentucky police conducted a sting operation in which undercover officers or informants purchased illegal drugs from drug dealers. During the operation a trafficker sold cocaine to an informant and then fled running. Officers pursued the man into a breezeway area of an apartment building where the suspect disappeared from sight. There were two apartment units in that location, but police had no reason to believe that either was more likely than the other to be hiding the suspect.

Then the officers noticed a strong smell of marijuana coming from one of the two apartments and also heard something moving in that apartment. They reasoned that the apartment from which the aroma came was likely the place where the drug dealer had hidden. The officers knocked on the apartment door as loudly as they could and announced that they were from the police department. When no one answered the knock and the officers heard more movement in the apartment, the officers feared that evidence was being destroyed. They then announced that they were entering the apartment and kicked in the door. Inside they found Hollis Deshaun King, his girlfriend, and a guest who was smoking marijuana. They also found in plain view marijuana and powder cocaine. In a subsequent search, police also discovered crack cocaine, cash, and drug paraphernalia. (Police eventually entered the other apartment and found the suspected drug dealer who was the initial target of their investigation.)

King was charged with several drug-related offenses. He filed a motion to suppress the evidence, contending that the officers violated his Fourth Amendment rights by breaking down his door and searching the apartment without a search warrant. The state in response argued that the police were not required to obtain a search warrant because they had to act quickly to prevent the possible destruction of evidence. The trial court and the Kentucky Court of Appeals ruled in favor of the police, but the Kentucky Supreme Court reversed, finding that the police could not use the exigent circumstance exception relating to the destruction of evidence when they themselves created the exigency (that is, any attempt to destroy evidence was caused by the police knocking on the apartment door).



It is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. In this case, we consider whether this rule applies when police, by knocking on the door of a residence and announcing their presence, cause the occupants to attempt to destroy evidence. The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies. . . .

Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured. “It is a ‘basic principle of Fourth Amendment law,’” we have often said, “‘that searches and seizures inside a home without a warrant are presumptively unreasonable.’” Brigham City v. Stuart(2006). But we have also recognized that this presumption may be overcome in some circumstances because “[t]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City; see also Michigan v. Fisher (2009). Accordingly, the warrant requirement is subject to certain reasonable exceptions.

One well-recognized exception applies when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona (1978); see also Payton [v. New York] (1980).

This Court has identified several exigencies that may justify a warrantless search of a home. Under the “emergency aid” exception, for example, “officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. See United States v. Santana (1976). And—what is relevant here—the need “to prevent the imminent destruction of evidence” has long been recognized as a sufficient justification for a warrantless search. Brigham City; see also Georgia v. Randolph (2006); Minnesota v. Olson (1990).

Over the years, lower courts have developed an exception to the exigent circumstances rule, the so-called “police-created exigency” doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was “created” or “manufactured” by the conduct of the police. . . .

Despite the welter of tests devised by the lower courts, the answer to the question presented in this case follows directly and clearly from the principle that permits warrantless searches in the first place. As previously noted, warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. 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.

We have taken a similar approach in other cases involving warrantless searches. For example, we have held that law enforcement officers may seize evidence in plain view, provided that they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made. See Horton v. California (1990). . . . Instead, the Fourth Amendment requires only that the steps preceding the seizure be lawful. . . .

For these reasons, we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. This holding provides ample protection for the privacy rights that the Amendment protects.

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. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. . . . And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.

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 ensue.

We now apply our interpretation of the police-created exigency doctrine to the facts of this case.

We need not decide whether exigent circumstances existed in this case. Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency. The trial court and the Kentucky Court of Appeals found that there was a real exigency in this case, but the Kentucky Supreme Court expressed doubt on this issue, observing that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” The Kentucky Supreme Court “assum[ed] for the purpose of argument that exigent circumstances existed,” and it held that the police had impermissibly manufactured the exigency.

. . . 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.

In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Officer Cobb testified without contradiction that the officers “banged on the door as loud as [they] could” and announced either “‘Police, police, police’” or “‘This is the police.’” This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence that might show that the officers either violated the Fourth Amendment or threatened to do so (for example, by announcing that they would break down the door if the occupants did not open the door voluntarily). . . .

. . . Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.

The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.



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.

The Fourth Amendment guarantees to the people “[t]he right … to be secure in their … houses … against unreasonable searches and seizures.” Warrants to search, the Amendment further instructs, shall issue only upon a showing of “probable cause” to believe criminal activity is afoot. These complementary provisions are designed to ensure that police will seek the authorization of a neutral magistrate before undertaking a search or seizure. Exceptions to the warrant requirement, this Court has explained, must be “few in number and carefully delineated,” if the main rule is to remain hardy. United States v. United States Dist. Court for Eastern Dist. of Mich. (1972).

This case involves a principal exception to the warrant requirement, the exception applicable in “exigent circumstances.” “[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 (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.

Two pillars of our Fourth Amendment jurisprudence should have controlled the Court’s ruling: First, “whenever practical, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure,” Terry v. Ohio(1968); second, unwarranted “searches and seizures inside a home” bear heightened scrutiny, Payton v. New York (1980). The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Johnson v. United States(1948). The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v. Arizona(1978). “[T]he police bear a heavy burden,” the Court has cautioned, “when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin (1984).

That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. . . . Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

In no quarter does the Fourth Amendment apply with greater force than in our homes, our most private space which, for centuries, has been regarded as “‘entitled to special protection.’” Georgia v. Randolph (2006). Home intrusions, the Court has said, are indeed “the chief evil against which … the Fourth Amendment is directed.” Payton. 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 activity? . . .

Under an appropriately reined-in “emergency” or “exigent circumstances” exception, the result in this case should not be in doubt. The target of the investigation’s entry into the building, and the smell of marijuana seeping under the apartment door into the hallway, the Kentucky Supreme Court rightly determined, gave the police “probable cause … sufficient … to obtain a warrant to search the … apartment.” As that court observed, nothing made it impracticable for the police to post officers on the premises while proceeding to obtain a warrant authorizing their entry. Before this Court, Kentucky does not urge otherwise.

In Johnson, the Court confronted this scenario: standing outside a hotel room, the police smelled burning opium and heard “some shuffling or noise” coming from the room. Could the police enter the room without a warrant? The Court answered no. Explaining why, the Court said:

“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 policeman. . . .

“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 required.”

I agree, and would not allow an expedient knock to override the warrant requirement. Instead, I would accord that core requirement of the Fourth Amendment full respect. . . . There is every reason to conclude that securing a warrant was entirely feasible in this case, and no reason to contract the Fourth Amendment’s dominion.