Photo: LaMar Norman.
The general rule for police entry into private premises is that a search or arrest warrant is required. Warrantless entries are limited to those authorized by consent, probation or parole search conditions, or "exigent circumstances" involving some sort of emergency requiring immediate action. (Payton v. New York) One category of exigency that may justify warrantless entry is the need to prevent the imminent destruction of evidence. (Welsh v. Wisconsin) Permissible entry under this particular exigency was affirmed in a 1963 decision of the U.S. Supreme Court, and was the subject of another decision in 2011.
Ker v. California
Narcotics investigators were following several marijuana dealers and saw them meet for a possible exchange, after which they drove away separately. Officers followed suspect George Ker's car but lost him during counter-surveillance maneuvers, so they drove directly to his residence, where they saw his car parked outside. Believing that Ker was now alerted to their suspicions and might try to dispose of marijuana before they could obtain a search warrant and return, officers made entry and seized contraband, which Ker later sought to suppress.
The U.S. Supreme Court ruled that police entry to prevent the imminent destruction of evidence is reasonable under the Fourth Amendment where officers reasonably suspect that destructible evidence is inside premises and that occupants of the premises are likely to remove or destroy the evidence if immediate entry is not made.
The court said this:
"Suspects have no constitutional right to destroy or dispose of evidence. In addition to the officers' belief that Ker was in possession of narcotics, which could be quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police. Time clearly was of the essence. The officers had reason to act quickly because of Ker's furtive conduct and the likelihood that the marijuana would be distributed or hidden before a warrant could be obtained. We therefore hold that under the particular circumstances of this case, the officers' method of entry was not unreasonable under the standards of the Fourth Amendment." (Ker v. California)
Lower Courts and the "Police-Created" Doctrine
In the years since the 1963 ruling in Ker, many state and federal appellate courts have created an exception to the rule that the risk of imminent destruction of evidence justifies warrantless entry. These courts have said that when police, by their own conduct, create the risk of destruction of evidence, the exception does not apply. Courts have referred to this as a "do-it-yourself exigency," or as a "manufactured" or "police-created" exigency, under which warrantless entry would not be allowable.
For example, in People v. Shuey, the California Supreme Court adopted the "police-created" doctrine and ruled that if police alert occupants to their presence and give the occupants the incentive to destroy evidence, officers may not rely on the exigency they themselves created, in order to "circumvent" the warrant requirement. Similar rulings have been adopted in other states and in several circuits of the U.S. Court of Appeals. (U.S. v. Coles, 3rd Circuit; U.S. v. Mowatt, 4th Circuit; U.S. v. Gould, 5th Circuit; U.S. v. Chambers, 6th Circuit.) This restrictive "police-created" doctrine has now been rejected by the U.S. Supreme Court.