Monday’s decision in Kentucky v. King is an interesting example of how the Supreme Court translates constitutional principles into rules.

The issue in King was the test for identifying “police-created” exigent circumstances. The Supreme Court has long recognized that the police can make warrantless searches and seizures when justified by some emergency — so-called “exigent circumstances.” Lower courts have also developed an exception to reliance on exigent circumstances: The police can’t create exigent circumstances and then rely on the exigent circumstances they have created in order to justify a warrantless search.

To see why this exception exists, imagine the police are outside a home of a person whom they suspect has drugs inside. The police ordinarily need a warrant to enter the home. If the police decide to light the home on fire, however, they can manufacture an exigency: The fire will mean that they have an emergency justifying a warrantless entry, both to save the person inside and to seize the drugs (so they are not burned up by the fire and the evidence is lost). If the police can create an emergency in this way, the police can circumvent the warrant requirement by just creating the exigency and then searching without a warrant.

The tricky issue with police-created exigent circumstances is drawing the right line. How do you distinguish police-created exigent circumstances from suspect-created exigent circumstances? On one hand, you don’t want to make it easy for the police to circumvent the warrant requirement. On the other hand, you don’t want the police to be unable to rely on genuine exigencies created by their innocuous conduct. The question is, what test can achieve both goals at once?

One possible test was to focus on the officer’s bad faith: Did the officers intend to circumvent the warrant requirement? That wouldn’t work, the Court concluded, for all the reasons that the Court traditionally avoids resting Fourth Amendment tests on subjective motives: "[E]ven handed law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.”

How about a “reasonable foreseeability” test, which would look to whether a reasonable officer would foresee that his conduct would create exigent circumstances? That would be too unpredictable, the Court held, because officers can’t know how people might react to them.

How about a rule that the police can’t do anything to create exigent circumstances if they have time to get a warrant and enough cause to get a warrant? No, that’s too restrictive: “There are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired.”

Maybe a rule that the police can’t take investigative steps that seem to be inappropriate or just go too far in context? No, that’s too uncertain: “This approach fails to provide clear guidance for law enforcement officers and authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies.”

How about a rule that the police can’t "engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable”? That’s too hard to apply, the Court concludes. How are the police supposed to know exactly what kind of conduct would lead a reasonable person to conclude that entry is imminent?

Instead the Court opts for the following rule: the police can rely on exigent circumstances as long as they did not “engag[e] or threaten[] to engage in conduct that violates the Fourth Amendment.” Under this test, the police can go up to a house or apartment and knock and announce their presence, just as any private citizen can do. If a suspect inside reacts by starting to destroy evidence, and the police outside hear it, that sound of destroying evidence is not a police-created exigency. On the other hand, the police can’t threaten to break in if the person won’t open the door: Breaking in would be a Fourth Amendment violation, so they can’t create exigent circumstances by threatening to break in. In the Court’s view, that’s the best test that balances the competing concerns.

I assume the Court’s rule would also deal with the example above about lighting the house on fire to create an exigency. Destroying property is generally a seizure of that property, Brown v. Muhlenberg Tp., 269 F.3d 205 (3d Cir. 2001), so the police could not destroy property to create exigent circumstances. The lighting of the house on fire would be a police-created exigency under the King rule.

The Court’s test doesn’t answer every question. For example, imagine the police come to a home, knock on the door, and say, “This is the police! Open up!” The statement to “open up” is not a direct threat — the police didn’t say, “open up or else we will do X” — but it is a form of an order. A police order to take certain conduct may or may not count as a “seizure” of the person who is commanded to take the step. The cases on that are actually quite unclear. See, e.g., Stephen Henderson, ‘Move on’ Orders as Fourth Amendment Seizures, 2008 BYU L. Rev. 1. And even then, the seizure doesn’t occur until the person actually complies with the order. See California v. Hodari D, 499 U.S. 621 (1991). So can the police yell to “open up”? It’s not clear.

Although the application of King in all cases isn’t entirely certain, the Court’s method for choosing a rule is notable.   The Court’s opinion tries to work through the various possible tests to find a balanced and workable test to distinguish police-created from suspect-created exigencies.

Posted in Kentucky v. King, Analysis, Featured

Recommended Citation: Orin Kerr, Choosing the rule for police-created exigencies in Kentucky v. King, SCOTUSblog (May. 17, 2011, 7:52 PM), http://www.scotusblog.com/2011/05/the-fourth-amendment-and-pragmatic-rulemaking/