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Departments : Point of Law

Exigent Entry

The U.S. Supreme Court has ruled on imminent destruction of evidence and the “police-created” doctrine.

July 07, 2011  |  by Devallis Rutledge - Also by this author

Kentucky v. King

Police officers in Lexington, Ky., were watching a suspected drug dealer when he disappeared into the breezeway of an apartment building. They heard a door shut, but as they approached, the officers saw that there were two apartments, and they could not tell which one the suspect had entered.

A strong odor of burnt marijuana emanated from one of the apartments, so the officers knocked loudly on that door and announced, "This is the police." Noises inside the apartment led the officers to conclude that occupants were attempting to destroy narcotics, so they forced entry and seized drugs and other evidence in plain view. Occupant Hollis Deshaun King later moved to suppress the evidence when it was offered against him in court.

The trial court denied the suppression motion and ruled that the circumstances encountered by the officers amounted to exigent circumstances due to the threat of the imminent destruction of evidence. However, the Kentucky Supreme Court reversed this ruling and held instead that police could not rely on this particular exigency because once officers knocked at the door and identified themselves, "it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances."

The U.S. Supreme Court reversed. The court pointed out the obvious: "In the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement."

In rejecting the "police-created" doctrine, the Supreme Court said that as long as police have not violated the Fourth Amendment before the exigency arises, there is no ground for denying exigent entry merely because occupants react to a police knock at the door by trying to dispose of the evidence of their wrongdoing.

The court said this:

"Where 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 imminent destruction of evidence is reasonable and thus allowed. When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. Occupants who elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue." (Kentucky v. King)


The Supreme Court said in a footnote that if the officers had demanded entry or had threatened to break down the door before the exigency arose, this exception might not apply. Officers may simply knock and identify themselves without demanding admittance and without any threats. Afterward, if noises indicate evidence is about to be destroyed, officers could then demand entry, threaten to force entry, and make forcible entry if the door is not opened.

When detailing the facts supporting application of this exception, you should describe the nature of the evidence to show that it is of kind that is easily destroyed, should explain why you believed there were occupants inside who could carry out the destruction, and should give reasons for believing that those occupants were aware of police presence and were about to destroy the evidence.

For purposes of the federal exclusionary rule, it is not necessary to say why a search warrant was not sought. "There are many entirely proper reasons why police may not want to seek a search warrant. Faulting the police for failing to apply for a search warrant imposes a duty that is nowhere to be found in the Constitution." (Kentucky v. King)

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 12 books, including "Investigative Constitutional Law."

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