Kentucky v. King Re-Visited: Common Sense Prevails

Last May, I wrote about the SCOTUS decision in Kentucky v. King. Needless to say, I wasn’t impressed. Here’s how I described it then: “… the nation’s highest court ruled overwhelmingly that a warrantless search can be justified by smelling marijuana and hearing unspecified noises which might be interpreted to suggest the destruction of evidence, even in the obvious absence of any attempt to do that.”

Well, not being a lawyer, I got it wrong. Not in the sense that the Supreme Court didn’t issue a very strange ruling, but, as Orin Kerr writes (and wrote) on the Volokh Conspiracy site, the Court didn’t hold that the search was actually legal, that “exigent circumstances” necessarily existed. Rather:

The Court did not consider whether the warrantless entry was constitutional. Instead, the limited cert grant addressed only a small piece of the puzzle: The Court only considered the right test for police-created exigent circumstances — the part to be subtracted from the totality of the circumstances — and then remanded the case back to the Kenucky courts. . . . [T]he Court’s conclusion was that all the facts could be considered — the usual “exigent circumstances rule” applies — without subtracting out the evidence of noises inside the home. . . .

Importantly, though, the Court did not hold that the warrantless entry was justified — much less that warrantless entries are generally justified — in such circumstances. The Court only held that the usual exigent circumstances rule applies: That is, whether or not there were exigent circumstances, the Kentucky courts should have considered the totality of the circumstances instead of subtracting out the reaction inside the house to the officers’ knocking and announcing their presence.

I take solace in two things: that actual legal experts misread the ruling the same way I did, and that the SCOTUS ruling wasn’t as daft as I had hitherto believed. The US Supreme Court didn’t reverse the finding of the Supreme Court of Kentucky, in other words, but rather remanded the case with the instruction to consider the totality of the evidence.

The Kentucky Court did, and—praise be to whomever it is you praise, Gentle Reader—they ruled last week that the police entry into the Lexington apartment of Hollis King in October of 2005 was indeed unconstitutional. I would have thought that was utterly obvious, but the SCOTUS didn’t simply say that in their ruling, so it was up to Kentucky to say so again:

Consistent with the instructions on remand from the United States Supreme Court, this Court concludes that exigent circumstances did not exist when police made a warrantless entry of the apartment occupied by Appellant King. Therefore, the denial of King's motion to suppress evidence is reversed, and King's judgment of conviction stands vacated.

The case was remanded back to the county court where, one suspects, the suppression of the evidence acquired by an illegal search will lead to charges being dropped.

What I find most interesting about the Kentucky ruling is that, however much I may have screwed up the legalisms last spring, I was able to see the central point of the case. Here’s me then:

Notice that the cops can’t remember exactly what they said, but they remember that it was loud (because it has to be to fulfill one set of guidelines), and they definitely didn’t, for example, use the words “Open up,” because that would be unconstitutional. Uh huh.

The response to this conversation-opener was apparently “people inside moving.” OMG, NO! They might, of course, been moving toward the door to open it….

And here’s the Kentucky Supreme Court’s decision:

During the suppression hearing, Officer Cobb repeatedly referred to the “possible” destruction of evidence. He stated that he heard people moving inside the apartment, and that this was “the same kind of movements we’ve heard inside” when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

Well, duh. The point here is not that I’m some marvel of perspicacity. Indeed, quite the opposite. I’m just a reasonably intelligent layman, capable of detecting obvious bullshit. The cops’ testimony never passed the sniff test, and the Kentucky Court knew it, even if SCOTUS tried their best to ignore that fact.

The Kentucky court’s ruling re-affirms the notion that exigency has to be both real and demonstrable: “Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.” It’s pretty clear that Mr. King isn’t someone I’d want for a neighbor, but it’s even clearer that the police over-stepped their authority and then lied about it. The majority of the Kentucky court saw through that charade. And that is a good thing.