Interesting Fourth Amendment decision from the Supreme Court this morning, in a case which at first glance didn’t seem all that cert-worthy. The facts are as run-of-the-mill as they come — an undercover buy-and-bust, the dealer ran into a building, arrest team followed in just as one of the doors slammed shut but couldn’t tell which of 2 apartments the guy went into, from the hallway they smelled dank weed burning, the smell was stronger by the apartment on the left, the cops banged on the door and announced themselves, the cops heard stuff being moved around inside and figured it was evidence being destroyed, the cops burst in and found significant amounts of pot and cocaine.
The first time we read the facts in this case, we couldn’t help wondering “seriously, what’s the problem here?” We’re well aware that the cops’ story might not be entirely truthful, but on the facts as given there just didn’t seem to be grounds for suppression. The cops are allowed to pursue a suspect into the hallway of an apartment building (here it was a breezeway, arguably even less private). The cops were entitled to bang on the door that smelled of burning marijuana. There’s no Fourth Amendment prohibition against the police banging on your door and shouting “police police police.” On hearing sounds consistent with destruction of evidence, it’s pretty well settled that an exigency now existed. That’s one of the dozen or so exceptions where society’s interest in something (here, preservation of evidence) trumps the right against warrantless searches. So seriously, what was the problem?
The problem was that the police arguably created the exigency themselves. If they hadn’t banged on the door and announced their presence, there wouldn’t have been any evidence-destruction sounds. Can the police manufacture an exception to the warrant requirement, one that would not have existed otherwise, and then rely on that exception to conduct a warrantless search?
Ah, now it gets interesting.
Writing for an 8-1 majority in Kentucky v. King, Justice Alito neatly described the “police-created exigency doctrine” that some courts — though not the Supreme Court — have applied. Though calling it a “doctrine” is pushing it. Those courts do recognize the inherent chutzpah of letting the police create an exigency, and have come up with various rules excluding such evidence, but they do not agree on what the rule ought to be.
When the exigency is destruction of evidence, it’s easy to see the challenge to crafting a workable rule. After all, when the emergency is a fear that evidence is about to be destroyed, that emergency is almost always caused by the police. Few dealers start flushing their stash unless the police are about to discover it. So it’s be absurd to have a flat prohibition on all exigencies that would not exist but for police conduct. So the various lower courts tried to think of what more ought to be required. By Alito’s count, there were five different rules out there.
The Court could easily have just said “there is no police-created exigency doctrine” and permitted the police to take advantage of any exigency, no matter who created it. It wouldn’t be terribly cynical to say that such a decision would have been perfectly in line with the last forty years of Fourth Amendment jurisprudence.
But, notwithstanding the failure of some lower courts to figure this out, the Supreme Court has been lately chipping away at the unfettered exigency excuse — at least that’s how the Supremes themselves see it. Take Brigham City and Fisher, from a couple of years ago. We see these as part of a line of cases which establish the awful rule that pretexts are fine, so long as the pretext genuinely existed. But Alito’s opinion this morning said the important rule is that the exigency must be genuine. So while we are focused on the injustice of permitting pretexts, the Court is focusing on simply requiring that emergencies be real, and not merely plausible.
So looking at it that way, the Court is trying to do the right thing. They’re choosing to ignore the unknowable of what the cop was actually thinking, and instead scrutinizing whether there was some objective and actual justification that happened to exist, regardless. That explains much of their law since Whren.
And looking at it that way, acknowledging a “police-created emergency doctrine” would be the intellectually honest thing to do. If police intentions are irrelevant, so long as a justification objectively existed, then it would be absurd to allow them to create a justification maliciously, secure in the knowledge that their intention is beyond scrutiny.
So the Supremes adopted this new police-created emergency doctrine (so we can dispense with the quotation marks). Having done so, the issue remained to resolve the 5-way split below. Given that police conduct is always going to be a cause of evidence destruction, what more must be shown if a defendant is going to obtain suppression in such a case?
Alito made a very reasonable rule here. Dismissing the suggestions of both sides as too extreme, he simply said there’s only a problem if the police created the exigency by violating the Fourth Amendment, or threatening to do so. (Kentucky’s rule was unwieldy and irrelevant, looking to whether it was reasonably foreseeable to the police that they would have created the emergency, looking to whether there was enough basis to get a warrant, and looking to actual and ideal law-enforcement practices. Whew! And King’s rule would have precluded any entry when a reasonable person would have thought the police were about to enter. Seriously.)
Alito’s rule sounds circular, but it’s actually quite elegant. It sounds like “there’re no Fourth Amendment violation if the police didn’t violate the Fourth Amendment,” but so does the Plain View doctrine. There’s more to it than that. It’s more that “there’s no Fourth Amendment violation if the police hadn’t violated the Fourth Amendment to create the circumstance where this search now took place.”
So just as there’s no problem if the police are lawfully inside your house when they spot your counterfeiting press in the living room, there’s no problem if the police are lawfully banging on your door when they hear you repeatedly using your turbo-flush toilet.
It’s an easy rule to understand, and an easy one for courts to apply. It’s even easy for cops to follow. Not bad.
Justice Ginsburg was the lone dissenter here. She is afraid that, “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.”
The problem with that is, the police could knock and listen anyway. Sure, they could sit on the apartment and make sure nobody leaves while some officers go take a few hours to get a warrant. But there’s no reason why they couldn’t bang on the door and ask permission to come in, either.
And if they do that, and those inside start flushing away, well then the situation has now changed. It’s no different than if they’d put a guard on the apartment while a warrant was sought, and when the tenants realized it they started flushing away. In either situation, a warrantless search is going to be okay.