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Warrantless entry upheld

Police can enter a home without a warrant under the exigent circumstances exception, even though they created the emergency themselves, provided they did not cause the exigency by threatening to violate the Fourth Amendment.

In so holding, the U.S. Supreme Court on May 16 adopted a rule largely consistent with that of the Wisconsin Supreme Court in State v. Robinson, 2010 WI 80, 786 N.W.2d 463.

The court even wrote, “Some lower courts have adopted a rule that is similar to the one that we recognize today,” citing the Robinson opinion.

Arguably, however, the U.S. Supreme Court opinion effectively overrules Robinson.

The U.S. Supreme Court’s opinion in Kentucky v. King contains an exception if the police engaged, or threatened to engage, in conduct that violates the Fourth Amendment.

But in the Robinson case, the officers did not merely knock and announce themselves; they also said, “You need to open the door.”

Such a statement could be construed as an implicit threat to unlawfully enter if the occupant refuses to permit entry. If so, then the entry in Robinson would be unlawful under the rule adopted in King.

In the King case, police officers in Lexington, Ky. followed a suspected drug dealer to an apartment. They smelled marijuana outside the door, knocked loudly and announced their presence.

Hearing sounds consistent with the destruction of evidence, the officers then kicked down the door and entered the apartment without a warrant.

King was convicted in state court of marijuana trafficking, but the Kentucky Supreme Court reversed, finding that the police created the exigent circumstances — imminent destruction of evidence — by their own actions.

The U.S. Supreme Court reversed the Kentucky high court, in an opinion by Justice Samuel Alito. Justice Ruth Bader Ginsburg dissented.

The majority noted that, in a sense, all exigent circumstances are police-created, because people are unlikely to destroy valuables, such as illegal drugs, unless they fear discovery by the police.

The court therefore created a distinction based on whether the conduct of the police precipitating the exigency was reasonable.

Alito wrote for the court, “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.”

Alito explained that, by knocking on the door without a warrant, the officers did nothing unlawful, and that the occupants have the right not to permit entry.

But Alito concluded, “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.”

Applying the standard to the facts, the court concluded that the officers acted reasonably, and did not threaten to violate the Fourth Amendment, because they only knocked and identified themselves as police.

In the absence of evidence that the officers demanded that the door be opened, or that they announced they would break the door down if it were not opened, the court held the warrantless entry constitutional.

Analysis

Although the court adopted reasoning that it says is similar to that adopted by the Wisconsin Supreme Court in Robinson, there is a significant difference in the two holdings. The Robinson opinion makes no reference to whether police threatened to violate the Fourth Amendment.

The facts in Robinson are similar.

Police suspected Robinson of selling marijuana out of his apartment, but did not have an arrest or search warrant. The officers knocked on the door, and identified themselves as police. They then added, “You need to open the door.”

When the officers heard footsteps running from the door, they feared the destruction of evidence, and forcibly entered the apartment.

The Wisconsin Supreme Court held the entry was lawful, employing reasoning similar to that of the U.S. Supreme Court.

The court concluded that, by knocking and announcing themselves, “the officers were conducting themselves in an utterly appropriate and lawful manner … Simply because Robinson chose to respond to the officers’ lawful conduct by running from the door, thereby leading the officers to believe that he would destroy evidence, does not mean that we ought to overlook the exigent circumstances.” Robinson, 786 N.W.2d at 475-476.

However, the officers in Robinson did not merely knock and announce themselves, as the Kentucky officers did. They added “You need to open the door” — the significance of which the Wisconsin Supreme Court did not address.

A reasonable person in the apartment dweller’s position would likely interpret this statement as a threat to forcibly enter if the door is not opened voluntarily, in violation of the Fourth Amendment.

The U.S. Supreme Court wrote in King, “There is no evidence of a ‘demand’ of any sort, much less a demand that amounts to a threat to violate the Fourth Amendment.”

The same cannot be said of the police conduct in Robinson.

What the Court Held

Case: Kentucky v. King, No. 09-1272

Issue: Is a warrantless entry justified by the exigent circumstances rule, even if the police created the exigency?

Holding: Yes. Unless the police threatened to violate the Fourth Amendment, police may enter to prevent the destruction of evidence.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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