Nick Nighswander – May Police Rely on Exigent Circumstances to Make a Warrantless Search?





In 2011 the United States Supreme Court reversed the Kentucky Supreme Court in the case of Kentucky v. King, 131 S. Ct. 1849 (2011), rev’g King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010), which was the subject of one of our letters to you last year. The U.S. Supreme Court held that police may rely on exigent circumstances so long as “the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment . . . .” Kentucky v. King, 131 S. Ct. at 1858. The Kentucky Supreme Court re-considered the case on remand in its decision of April 26, 2012.


Lexington Police were chasing a suspected drug dealer into an apartment complex after observing a buy set up by a confidential informant. The police lost sight of the suspect when he entered the complex and thought the suspect had run into King’s apartment by hearing a door slam shut but did not see him enter King’s apartment.


Outside of King’s apartment, one of the police officers testified he detected a strong odor of marijuana coming from inside the apartment, which he also thought was the one he heard the door slam shut for. The officer then announced his presence “This is the Police”. Then upon hearing things being moved in the apartment, the police thought evidence was being destroyed and forcibly entered the apartment without a search warrant and found drugs and drug paraphernalia. King and the other occupants were then charged criminally.


King moved to suppress the search in the trial court. The motion was overruled on the basis that exigent circumstances existed for the police to justify their warrantless search under the Fourth Amendment to the U.S. Constitution. King appealed and the Kentucky Court of Appeals affirmed the trial court. The Kentucky Supreme Court granted discretionary review.

The Kentucky Supreme Court reversed in King I and granted the suppression motion and reasoned exigent circumstances no longer existed under the Fourth Amendment when the police announced their presence and any such exigency was police created. Thus, a warrant was needed by the police to search the apartment.


Kentucky then moved the U.S. Supreme Court to review the case. The U.S. Supreme Court agreed to hear the case on the issue of when does lawful police action impermissibly create an exigent circumstance which prevents a warrantless entry. The U.S. Supreme Court reversed and remanded the case back to the Kentucky Supreme Court on the basis that police may rely on exigent circumstances as long as they did not create the exigent circumstances. Kentucky v. King, 131 S.Ct. at 1858.


On remand, the Kentucky Supreme Court was to address whether an exigency actually existed for the police to enter King’s apartment without a warrant. The Kentucky Supreme Court in King II ruled that using an objective analysis of the record under the Fourth Amendment’s reasonableness standard the state could not show that exigent circumstances existed to justify a warrantless entry of King’s apartment by the police. The suppression of the drugs and drug paraphernalia found by the police was again upheld.


A full text of the Kentucky Supreme Court’s opinion can be found at:

This opinion is not yet final and cannot be cited as authority until then.

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