On January 12, 2011, the United States Supreme Court will hear oral arguments in the case of Kentucky v. King. This case addresses the issue of what test should courts apply when police conduct creates the exigent circumstances relied on as the exception to the warrant requirement. The briefs in the case can be found on the Scotus blog. Additionally, there is an excellent commentary of Orin Kerr. Click here to read the article of Orin Kerr. The United States Supreme Court is reviewing a decision of the Kentucky Supreme Court, which can be read by clicking on this link.

I will be attending the oral arguments in this case as I am being sworn in as an attorney to practice before the United States Supreme Court. As a Massachusetts criminal attorney, it will be a great honor to be in attendance for such an important oral argument that impacts criminal law. I will posted my impressions of the argument on this blog.

In the King case, an undercover police officer bought drugs from a suspect in an apartment hallway. The suspect went into an apartment; however, there were two apartments and the officers did not know which one the suspect entered. The facts of the case indicate there were two apartments one on the left and the other the right of the hallway. From the left apartment, the police smelled marijuana, knocked on the door of the left apartment, announced their presence and entered the apartment without a warrant. While waiting outside, the police heard movement in the apartment and believe that evidence was being destroyed and as a result the police enter the apartment and seize narcotics.

The defendant contends that the police did not knock but demanded to be let in to the apartment. It will be interesting to see how the court addresses the factual dispute as to what occurred during the oral argument. The United States Supreme Court grant Certiorari in the case only to address the issue of what test to apply when police conduct creates the exigent circumstances.

The defendant in King argued that the neither the odor of marijuana nor people moving around inside the apartment created exigent circumstances. As to the creation of exigent circumstances based on noise from within the apartment, the defendant argued that when the police bang on the door it is natural that there will be nose from within the apartment. Accordingly, the police cannot be allowed to enter without a warrant when the police conduct of banging on the door created the exigent circumstances.

The State argued that the court should adopt a lawfulness test used by the Second Circuit Court of Appeals that would hold that as long as the police act lawfully their conduct cannot be seen as creating an exigent circumstance. This is where the factual dispute regarding how the police announced their presence becomes an issue. The State of Kentucky contends that the police knocked and announced their presence and accordingly acted lawfully. The defendant asserts that the police banged on the door, demanding entry and accordingly acted coercive and threatening to enter the apartment.

The defendant argued that probable cause to believe that criminal activity is occurring in a residence is not enough to establish exigent circumstances under the United States Supreme Court’s decision in Johnson v. United States, 333 U.S. 10 (1948). The defendant claimed that under Johnson the odor of burnt marijuana could not justify the exigent circumstances. Additionally, the defendant argued that people moving around cannot be equated to destruction of evidence. The defendant’s brief rightly points out that if movement within the home can justify a warrantless entry than the court would be allowing for a serious deprivation of an individual’s right to privacy within the home.

The defendant proposed the following test be adopted by the court: that police improperly create an exigent circumstance when they engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable. In King, the defendant claimed that by the officer’s action of banging on the door, the officer created the exigency of people moving around, as the occupant of the home would have reasonably thought that entry of the police was inevitable.

As a Massachusetts criminal lawyer, the outcome of this case will have a significant impact in criminal cases, including drug and Massachusetts gun offenses. It seems surprising that the court granted Certiorari in this case as the facts appear to be in dispute making it more difficult for the court to use this case to define the exigent circumstance exception to the warrant requirement. I expect the court will use the case to announce the rule to be applied and believe that the rule suggested by the defense attorney is more consistent with the intent of the Fourth Amendment.