Brent Tunis

On April 19, 2010 the Commonwealth of Kentucky filed a petition of writ for certiorari in the case of King v. Commonwealth, 302 S.W. 3d 649 (Ky. 2010). It is of particular importance that the Supreme Court accepts this petition because the Court has yet to address if and under what conditions may law enforcement officials rely on police-created exigent circumstances to justify a warrantless entry of a home.


In King, detectives knocked on the door of an apartment where they smelled marijuana coming from and announced it was the police; at that point, they heard shuffling and believed the people in side were trying to destroy the drugs. The detectives then forcibly entered the apartment without a warrant to prevent evidence from being destroyed, based on the doctrine of exigent circumstances, and arrested the Defendant.


On review, the Supreme Court of Kentucky held that the detectives were the ones who had created the exigent circumstances. Neither the Defendant, nor anyone else he was with, knew that the detectives were outside and had any reason to destroy the drugs until the officers knocked and announced their presence. Indeed, the detectives could have easily obtained a warrant instead. After determining that the police created the exigency, the question still remained whether or not the warrantless entry was constitutional under the Fourth Amendment.


The federal courts are split on this issue, with almost every circuit applying a different standard. The Second Circuit most drastically differs from the other circuits in that it allows for warrantless entry if the police simply “act[] in an entirely lawful manner,” without taking into account the reasonableness or intent of officers. The court in King adopted a two-part test in which a “bad faith intent” by officers or the use of tactics that were reasonably foreseeable to create the exigent circumstances would make entry unconstitutional.


However, without clear guidance from the Supreme Court, constitutional law will continue to be applied unevenly by lower courts on this issue. This is particularly worrisome because drug investigations frequently implicate exigent circumstances. Drugs are often easily disposed of, which forces officers to be aggressive in making arrests and obtaining evidence of drugs before they are destroyed. Nonetheless, there is a big difference between a standard that forces officers to be reasonable and have good intentions when they invade the privacy of one’s home without a warrant, and a standard that does not. The Fourth Amendment must give all Americans equal protection from warrantless search and seizures. Therefore, this disparity between the circuits and uncertainty in the law should no longer be tolerated. With around 15% of all arrests in this country being drug-related (http://www.cesar.umd.edu/cesar/county/statewide/UCR_State_Percentages.pdf), it is essential that the Supreme Court provide clear guidance for both the courts and law enforcement officials.