Kentucky v. King , 131 S. Ct. 1849 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KENTUCKY v. KING
CERTIORARI TO THE SUPREME COURT OF KENTUCKY
No. 09–1272. Argued January 12, 2011—Decided May 16, 2011
Police officers in Lexington, Kentucky, followed a suspected drug dealer
to an apartment complex. They smelled marijuana outside an
apartment door, knocked loudly, and announced their presence. As
soon as the officers began knocking, they heard noises coming from
the apartment; the officers believed that these noises were consistent
with the destruction of evidence. The officers announced their intent
to enter the apartment, kicked in the door, and found respondent and
others. They saw drugs in plain view during a protective sweep of
the apartment and found additional evidence during a subsequent
search. The Circuit Court denied respondent’s motion to suppress
the evidence, holding that exigent circumstances—the need to pre
vent destruction of evidence—justified the warrantless entry. Re
spondent entered a conditional guilty plea, reserving his right to ap
peal the suppression ruling, and the Kentucky Court of Appeals
affirmed. The Supreme Court of Kentucky reversed. The court as
sumed that exigent circumstances existed, but it nonetheless invali
dated the search. The exigent circumstances rule did not apply, the
court held, because the police should have foreseen that their conduct
would prompt the occupants to attempt to destroy evidence.
Held:
1. The exigent circumstances rule applies when the police do not
create the exigency by engaging or threatening to engage in conduct
that violates the Fourth Amendment. Pp. 5–16.
(a) The Fourth Amendment expressly imposes two requirements:
All searches and seizures must be reasonable; and a warrant may not
be issued unless probable cause is properly established and the scope
of the authorized search is set out with particularity. Although
“ ‘searches and seizures inside a home without a warrant are pre
sumptively unreasonable,’ ” Brigham City v. Stuart, 547 U.S. 398,
2 KENTUCKY v. KING
Syllabus
403, this presumption may be overcome when “ ‘the exigencies of the
situation’ make the needs of law enforcement so compelling that [a]
warrantless search is objectively reasonable under the Fourth
Amendment,” Mincey v. Arizona, 437 U.S. 385, 394. One such exi
gency is the need “to prevent the imminent destruction of evidence.”
Brigham City, supra, at 403. Pp. 5–6.
(b) Under the “police-created exigency” doctrine, which lower
courts have developed as an exception to the exigent circumstances
rule, exigent circumstances do not justify a warrantless search when
the exigency was “created” or “manufactured” by the conduct of the
police. The lower courts have not agreed, however, on the test for de
termining when police impermissibly create an exigency. Pp. 7–8.
(c) The proper test follows from the principle that permits war
rantless searches: warrantless searches are allowed when the cir
cumstances make it reasonable, within the meaning of the Fourth
Amendment, to dispense with the warrant requirement. Thus, a
warrantless entry based on exigent circumstances is reasonable when
the police did not create the exigency by engaging or threatening to
engage in conduct violating the Fourth Amendment. A similar ap
proach has been taken in other cases involving warrantless searches.
For example, officers may seize evidence in plain view if they have
not violated the Fourth Amendment in arriving at the spot from
which the observation of the evidence is made, see Horton v. Califor
nia, 496 U.S. 128, 136–140; and they may seek consent-based en
counters if they are lawfully present in the place where the consen
sual encounter occurs, see INS v. Delgado, 466 U.S. 210, 217, n. 5.
Pp. 8–10.
(d) Some courts, including the Kentucky Supreme Court, have
imposed additional requirements—asking whether officers “ ‘deliber
ately created the exigent circumstances with the bad faith intent to
avoid the warrant requirement,’ ” 302 S.W.3d 649, 656 (case below);
reasoning that police may not rely on an exigency if “ ‘it was reasona
bly foreseeable that [their] investigative tactics . . . would create the
exigent circumstances,’ ”ibid.; faulting officers for knocking on a door
when they had sufficient evidence to seek a warrant but did not do
so; and finding that officers created or manufactured an exigency
when their investigation was contrary to standard or good law en
forcement practices. Such requirements are unsound and are thus
rejected. Pp. 10–14.
(e) Respondent contends that an exigency is impermissibly cre
ated when officers engage in conduct that would cause a reasonable
person to believe that entry was imminent and inevitable, but that
approach is also flawed. The ability of officers to respond to an exi
gency cannot turn on such subtleties as the officers’ tone of voice in
Cite as: 563 U. S. ____ (2011) 3
Syllabus
announcing their presence and the forcefulness of their knocks. A
forceful knock may be necessary to alert the occupants that someone
is at the door, and unless officers identify themselves loudly enough,
occupants may not know who is at their doorstep. Respondent’s test
would make it extremely difficult for officers to know how loudly they
may announce their presence or how forcefully they may knock with
out running afoul of the police-created exigency rule. And in most
cases, it would be nearly impossible for a court to determine whether
that threshold had been passed. Pp. 14–15.
2. Assuming that an exigency existed here, there is no evidence
that the officers either violated the Fourth Amendment or threatened
to do so prior to the point when they entered the apartment. Pp. 16–
19.
(a) Any question about whether an exigency existed here is bet
ter addressed by the Kentucky Supreme Court on remand. P. 17.
(b) Assuming an exigency did exist, the officers’ conduct—
banging on the door and announcing their presence—was entirely
consistent with the Fourth Amendment. Respondent has pointed to
no evidence supporting his argument that the officers made any sort
of “demand” to enter the apartment, much less a demand that
amounts to a threat to violate the Fourth Amendment. If there is
contradictory evidence that has not been brought to this Court’s at
tention, the state court may elect to address that matter on remand.
Finally, the record makes clear that the officers’ announcement that
they were going to enter the apartment was made after the exigency
arose. Pp. 17–19.
302 S.W.3d 649, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined. GINSBURG, J., filed a dissenting opinion.
Cite as: 563 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1272
_________________
KENTUCKY, PETITIONER v. HOLLIS DESHAUN KING
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
KENTUCKY
[May 16, 2011]
JUSTICE ALITO delivered the opinion of the Court.
It is well established that “exigent circumstances,”
including the need to prevent the destruction of evidence,
permit police officers to conduct an otherwise permissible
search without first obtaining a warrant. In this case, we
consider whether this rule applies when police, by knock­
ing on the door of a residence and announcing their pres­
ence, cause the occupants to attempt to destroy evidence.
The Kentucky Supreme Court held that the exigent cir­
cumstances rule does not apply in the case at hand be­
cause the police should have foreseen that their conduct
would prompt the occupants to attempt to destroy evi­
dence. We reject this interpretation of the exigent circum­
stances rule. The conduct of the police prior to their entry
into the apartment was entirely lawful. They did not
violate the Fourth Amendment or threaten to do so. In
such a situation, the exigent circumstances rule applies.
I
A
This case concerns the search of an apartment in Lex­
ington, Kentucky. Police officers set up a controlled buy of
crack cocaine outside an apartment complex. Undercover
2 KENTUCKY v. KING
Opinion of the Court
Officer Gibbons watched the deal take place from an un­
marked car in a nearby parking lot. After the deal oc­
curred, Gibbons radioed uniformed officers to move in on
the suspect. He told the officers that the suspect was
moving quickly toward the breezeway of an apartment
building, and he urged them to “hurry up and get there”
before the suspect entered an apartment. App. 20.
In response to the radio alert, the uniformed officers
drove into the nearby parking lot, left their vehicles, and
ran to the breezeway. Just as they entered the breezeway,
they heard a door shut and detected a very strong odor of
burnt marijuana. At the end of the breezeway, the officers
saw two apartments, one on the left and one on the right,
and they did not know which apartment the suspect had
entered. Gibbons had radioed that the suspect was run­
ning into the apartment on the right, but the officers did
not hear this statement because they had already left
their vehicles. Because they smelled marijuana smoke
emanating from the apartment on the left, they ap­
proached the door of that apartment.
Officer Steven Cobb, one of the uniformed officers who
approached the door, testified that the officers banged on
the left apartment door “as loud as [they] could” and an­
nounced, “ ‘This is the police’ ” or “ ‘Police, police, police.’ ”
Id., at 22–23. Cobb said that “[a]s soon as [the officers]
started banging on the door,” they “could hear people
inside moving,” and “[i]t sounded as [though] things were
being moved inside the apartment.” Id., at 24. These
noises, Cobb testified, led the officers to believe that drug­
related evidence was about to be destroyed.
At that point, the officers announced that they “were
going to make entry inside the apartment.” Ibid. Cobb
then kicked in the door, the officers entered the apart­
ment, and they found three people in the front room:
respondent Hollis King, respondent’s girlfriend, and a
Cite as: 563 U. S. ____ (2011) 3
Opinion of the Court
guest who was smoking marijuana.1 The officers per­
formed a protective sweep of the apartment during which
they saw marijuana and powder cocaine in plain view. In
a subsequent search, they also discovered crack cocaine,
cash, and drug paraphernalia.
Police eventually entered the apartment on the right.
Inside, they found the suspected drug dealer who was the
initial target of their investigation.
B
In the Fayette County Circuit Court, a grand jury
charged respondent with trafficking in marijuana, first­
degree trafficking in a controlled substance, and second­
degree persistent felony offender status. Respondent filed
a motion to suppress the evidence from the warrantless
search, but the Circuit Court denied the motion. The
Circuit Court concluded that the officers had probable
cause to investigate the marijuana odor and that the
officers “properly conducted [the investigation] by initially
knocking on the door of the apartment unit and awaiting
the response or consensual entry.” App. to Pet. for Cert.
9a. Exigent circumstances justified the warrantless entry,
the court held, because “there was no response at all to the
knocking,” and because “Officer Cobb heard movement in
the apartment which he reasonably concluded were per­
sons in the act of destroying evidence, particularly narcot­
ics because of the smell.” Ibid. Respondent then entered a
conditional guilty plea, reserving his right to appeal the
denial of his suppression motion. The court sentenced
respondent to 11 years’ imprisonment.
The Kentucky Court of Appeals affirmed. It held that
——————
1 Respondent’s girlfriend leased the apartment, but respondent stayed
there part of the time, and his child lived there. Based on these facts,
Kentucky conceded in state court that respondent has Fourth Amend­
ment standing to challenge the search. See App. to Pet. for Cert. 7a;
see also 302 S.W.3d 649, 652 (Ky. 2010).
4 KENTUCKY v. KING
Opinion of the Court
exigent circumstances justified the warrantless entry
because the police reasonably believed that evidence
would be destroyed. The police did not impermissibly
create the exigency, the court explained, because they did
not deliberately evade the warrant requirement.
The Supreme Court of Kentucky reversed. 302 S.W.3d
649 (2010). As a preliminary matter, the court observed
that there was “certainly some question as to whether the
sound of persons moving [inside the apartment] was suffi­
cient to establish that evidence was being destroyed.” Id.,
at 655. But the court did not answer that question. In­
stead, it “assume[d] for the purpose of argument that
exigent circumstances existed.” Ibid.
To determine whether police impermissibly created the
exigency, the Supreme Court of Kentucky announced a
two-part test. First, the court held, police cannot “deliber­
ately creat[e] the exigent circumstances with the bad faith
intent to avoid the warrant requirement.” Id., at 656
(internal quotation marks omitted). Second, even absent
bad faith, the court concluded, police may not rely on
exigent circumstances if “it was reasonably foreseeable
that the investigative tactics employed by the police would
create the exigent circumstances.” Ibid. (internal quota­
tion marks omitted). Although the court found no evi­
dence of bad faith, it held that exigent circumstances could
not justify the search because it was reasonably foresee­
able that the occupants would destroy evidence when the
police knocked on the door and announced their presence.
Ibid.
We granted certiorari. 561 U. S. ___ (2010).2
——————
2 After we granted certiorari, respondent filed a motion to dismiss the
petition as improvidently granted, which we denied. 562 U. S. ___
(2010). Respondent’s principal argument was that the case was moot
because, after the Kentucky Supreme Court reversed his conviction, the
Circuit Court dismissed the charges against him. Respondent’s argu­
ment is foreclosed by United States v. Villamonte-Marquez, 462 U. S.
Cite as: 563 U. S. ____ (2011) 5
Opinion of the Court
II
A
The Fourth Amendment provides:
“The right of the people to be secure in their per­
sons, houses, papers, and effects, against unreason­
able searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.”
The text of the Amendment thus expressly imposes two
requirements. First, all searches and seizures must be
reasonable. Second, a warrant may not be issued unless
probable cause is properly established and the scope of the
authorized search is set out with particularity. See Payton
v. New York, 445 U.S. 573, 584 (1980).
Although the text of the Fourth Amendment does not
specify when a search warrant must be obtained, this
Court has inferred that a warrant must generally be
secured. “It is a ‘basic principle of Fourth Amendment
law,’ ” we have often said, “ ‘that searches and seizures
inside a home without a warrant are presumptively un­
reasonable.’ ” Brigham City v. Stuart, 547 U.S. 398, 403
(2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559
(2004)). But we have also recognized that this presump­
tion may be overcome in some circumstances because
“[t]he ultimate touchstone of the Fourth Amendment is
‘reasonableness.’ ” Brigham City, supra, at 403; see also
——————
579, 581, n. 2 (1983). As we explained in Villamonte-Marquez, our
reversal of the Kentucky Supreme Court’s decision “would reinstate the
judgment of conviction and the sentence entered” by the Circuit Court.
Ibid. The absence of an indictment does not change matters. See
ibid. (“Upon respondents’ conviction and sentence, the indictment that
was returned against them was merged into their convictions and
sentences”).
6 KENTUCKY v. KING
Opinion of the Court
Michigan v. Fisher, 558 U. S. ___, ___ (2009) (per curiam)
(slip op., at 2). Accordingly, the warrant requirement is
subject to certain reasonable exceptions. Brigham City,
supra, at 403.
One well-recognized exception applies when “ ‘the exi­
gencies of the situation’ make the needs of law en­
forcement so compelling that [a] warrantless search is
objectively reasonable under the Fourth Amendment.”
Mincey v. Arizona, 437 U.S. 385, 394 (1978); see also
Payton, supra, at 590 (“[T]he Fourth Amendment has
drawn a firm line at the entrance to the house. Absent
exigent circumstances, that threshold may not reasonably
be crossed without a warrant”).
This Court has identified several exigencies that may
justify a warrantless search of a home. See Brigham City,
547 U.S., at 403. Under the “emergency aid” exception,
for example, “officers may enter a home without a warrant
to render emergency assistance to an injured occupant or
to protect an occupant from imminent injury.” Ibid.; see
also, e.g., Fisher, supra, at ___ (slip op., at 5) (upholding
warrantless home entry based on emergency aid excep­
tion). Police officers may enter premises without a war­
rant when they are in hot pursuit of a fleeing suspect. See
United States v. Santana, 427 U.S. 38, 42–43 (1976).
And—what is relevant here—the need “to prevent the
imminent destruction of evidence” has long been recog­
nized as a sufficient justification for a warrantless search.
Brigham City, supra, at 403; see also Georgia v. Randolph,
547 U.S. 103, 116, n. 6 (2006); Minnesota v. Olson, 495
U.S. 91, 100 (1990).3
——————
3 Preventing the destruction of evidence may also justify dispensing
with Fourth Amendment requirements in other contexts. See, e.g.,
Richards v. Wisconsin, 520 U.S. 385, 395–396 (1997) (failure to comply
with the knock-and-announce requirement was justified because “the
circumstances . . . show[ed] that the officers had a reasonable suspicion
that [a suspect] might destroy evidence if given further opportunity to
Cite as: 563 U. S. ____ (2011)
7
Opinion of the Court
B
Over the years, lower courts have developed an excep­
tion to the exigent circumstances rule, the so-called “po­
lice-created exigency” doctrine. Under this doctrine, police
may not rely on the need to prevent destruction of evi­
dence when that exigency was “created” or “manufactured”
by the conduct of the police. See, e.g., United States v.
Chambers, 395 F.3d 563, 566 (CA6 2005) (“[F]or a war­
rantless search to stand, law enforcement officers must be
responding to an unanticipated exigency rather than
simply creating the exigency for themselves”); United
States v. Gould, 364 F.3d 578, 590 (CA5 2004) (en banc)
(“[A]lthough exigent circumstances may justify a war­
rantless probable cause entry into the home, they will not
do so if the exigent circumstances were manufactured by
the agents” (internal quotation marks omitted)).
In applying this exception for the “creation” or “manu­
facturing” of an exigency by the police, courts require
something more than mere proof that fear of detection by
the police caused the destruction of evidence. An addi­
tional showing is obviously needed because, as the Eighth
Circuit has recognized, “in some sense the police always
create the exigent circumstances.” United States v. Duchi,
906 F.2d 1278, 1284 (CA8 1990). That is to say, 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. Destruction of evidence issues
probably occur most frequently in drug cases because
drugs may be easily destroyed by flushing them down a
——————
do so”); Schmerber v. California, 384 U.S. 757, 770–771 (1966) (war­
rantless testing for blood-alcohol content was justified based on poten­
tial destruction of evidence); cf. United States v. Banks, 540 U.S. 31,
37–40 (2003) (15 to 20 seconds was a reasonable time for officers to wait
after knocking and announcing their presence where there was a risk
that suspect would dispose of cocaine).
8 KENTUCKY v. KING
Opinion of the Court
toilet or rinsing them down a drain. 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 con­
duct causes the exigency would unreasonably shrink the
reach of this well-established exception to the warrant
requirement.
Presumably for the purpose of avoiding such a result,
the lower courts have held that the police-created exigency
doctrine requires more than simple causation, but the
lower courts have not agreed on the test to be applied.
Indeed, the petition in this case maintains that “[t]here
are currently five different tests being used by the United
States Courts of Appeals,” Pet. for Cert. 11, and that some
state courts have crafted additional tests, id., at 19–20.
III
A
Despite the welter of tests devised by the lower courts,
the answer to the question presented in this case follows
directly and clearly from the principle that permits war­
rantless searches in the first place. As previously noted,
warrantless searches are allowed when the circumstances
make it reasonable, within the meaning of the Fourth
Amendment, to dispense with the warrant requirement.
Therefore, the answer to the question before us is that the
exigent circumstances rule justifies a warrantless search
when the conduct of the police preceding the exigency is
reasonable in the same sense. Where, as here, 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 destruction of evidence is
reasonable and thus allowed.4
——————
4 There is a strong argument to be made that, at least in most circum­
Cite as: 563 U. S. ____ (2011) 9
Opinion of the Court
We have taken a similar approach in other cases involv­
ing warrantless searches. For example, we have held that
law enforcement officers may seize evidence in plain view,
provided that they have not violated the Fourth Amend­
ment in arriving at the spot from which the observation of
the evidence is made. See Horton v. California, 496 U.S.
128, 136–140 (1990). As we put it in Horton, “[i]t is . . . an
essential predicate to any valid warrantless seizure of
incriminating evidence that the officer did not violate the
Fourth Amendment in arriving at the place from which
the evidence could be plainly viewed.” Id., at 136. So long
as this prerequisite is satisfied, however, it does not mat­
ter that the officer who makes the observation may have
gone to the spot from which the evidence was seen with
the hope of being able to view and seize the evidence. See
id., at 138 (“The fact that an officer is interested in an
item of evidence and fully expects to find it in the course of
a search should not invalidate its seizure”). Instead, the
Fourth Amendment requires only that the steps preceding
the seizure be lawful. See id., at 136–137.
Similarly, officers may seek consent-based encounters if
they are lawfully present in the place where the consen­
sual encounter occurs. See INS v. Delgado, 466 U.S.
210, 217, n. 5 (1984) (noting that officers who entered
into consent-based encounters with employees in a factory
building were “lawfully present [in the factory] pursuant
to consent or a warrant”). If consent is freely given, it
makes no difference that an officer may have approached
the person with the hope or expectation of obtaining con­
sent. See id., at 216 (“While most citizens will respond to
a police request, the fact that people do so, and do so
——————
stances, the exigent circumstances rule should not apply where the
police, without a warrant or any legally sound basis for a warrantless
entry, threaten that they will enter without permission unless admit­
ted. In this case, however, no such actual threat was made, and there­
fore we have no need to reach that question.
10 KENTUCKY v. KING
Opinion of the Court
without being told they are free not to respond, hardly
eliminates the consensual nature of the response”).
B
Some lower courts have adopted a rule that is similar to
the one that we recognize today. See United States v.
MacDonald, 916 F.2d 766, 772 (CA2 1990) (en banc) (law
enforcement officers “do not impermissibly create exigent
circumstances” when they “act in an entirely lawful man­
ner”); State v. Robinson, 2010 WI 80, ¶32, 327 Wis. 2d 302,
326–328, 786 N.W.2d 463, 475–476 (2010). But others,
including the Kentucky Supreme Court, have imposed
additional requirements that are unsound and that we
now reject.
Bad faith. Some courts, including the Kentucky Su­
preme Court, ask whether law enforcement officers “ ‘de­
liberately created the exigent circumstances with the bad
faith intent to avoid the warrant requirement.’ ” 302 S.W.
3d, at 656 (quoting Gould, 364 F.3d, at 590); see also, e.g.,
Chambers, 395 F.3d, at 566; United States v. Socey, 846
F.2d 1439, 1448 (CADC 1988); United States v. Rengifo,
858 F.2d 800, 804 (CA1 1988).
This approach is fundamentally inconsistent with our
Fourth Amendment jurisprudence. “Our cases have re­
peatedly rejected” a subjective approach, asking only
whether “the circumstances, viewed objectively, justify the
action.” ’Brigham City, 547 U.S., at 404 (alteration and
internal quotation marks omitted); see also Fisher, 558
U. S., at ___ (slip op., at 3–5). Indeed, we have never held,
outside limited contexts such as an “inventory search or
administrative inspection . . . , that an officer’s motive
invalidates objectively justifiable behavior under the
Fourth Amendment.” Whren v. United States, 517 U.S.
806, 812 (1996); see also Brigham City, supra, at 405.
The reasons for looking to objective factors, rather than
subjective intent, are clear. Legal tests based on reason­
Cite as: 563 U. S. ____ (2011) 11
Opinion of the Court
ableness are generally objective, and this Court has long
taken the view that “evenhanded law enforcement is best
achieved by the application of objective standards of con­
duct, rather than standards that depend upon the subjec­
tive state of mind of the officer.” Horton, supra, at 138.
Reasonable foreseeability. Some courts, again including
the Kentucky Supreme Court, hold that police may not
rely on an exigency if “ ‘it was reasonably foreseeable that
the investigative tactics employed by the police would
create the exigent circumstances.’ ” 302 S.W. 3d, at 656
(quoting Mann v. State, 357 Ark. 159, 172, 161 S.W.3d
826, 834 (2004)); see also, e.g., United States v. Mowatt,
513 F.3d 395, 402 (CA4 2008). Courts applying this
test have invalidated warrantless home searches on the
ground that it was reasonably foreseeable that police
officers, by knocking on the door and announcing their
presence, would lead a drug suspect to destroy evidence.
See, e.g., id., at 402–403; 302 S.W. 3d, at 656.
Contrary to this reasoning, however, we have rejected
the notion that police may seize evidence without a war­
rant only when they come across the evidence by happen­
stance. In Horton, as noted, we held that the police may
seize evidence in plain view even though the officers may
be “interested in an item of evidence and fully expec[t] to
find it in the course of a search.” 496 U.S., at 138.
Adoption of a reasonable foreseeability test would also
introduce an unacceptable degree of unpredictability. For
example, whenever law enforcement officers knock on the
door of premises occupied by a person who may be in­
volved in the drug trade, there is some possibility that the
occupants may possess drugs and may seek to destroy
them. Under a reasonable foreseeability test, it would be
necessary to quantify the degree of predictability that
must be reached before the police-created exigency doc­
trine comes into play.
A simple example illustrates the difficulties that such
12 KENTUCKY v. KING
Opinion of the Court
an approach would produce. Suppose that the officers in
the present case did not smell marijuana smoke and thus
knew only that there was a 50% chance that the fleeing
suspect had entered the apartment on the left rather than
the apartment on the right. Under those circumstances,
would it have been reasonably foreseeable that the occu­
pants of the apartment on the left would seek to destroy
evidence upon learning that the police were at the door?
Or suppose that the officers knew only that the suspect
had disappeared into one of the apartments on a floor with
3, 5, 10, or even 20 units? If the police chose a door at
random and knocked for the purpose of asking the occu­
pants if they knew a person who fit the description of the
suspect, would it have been reasonably foreseeable that
the occupants would seek to destroy evidence?
We have noted that “[t]he calculus of reasonableness
must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circum­
stances that are tense, uncertain, and rapidly evolving.”
Graham v. Connor, 490 U.S. 386, 396–397 (1989). The
reasonable foreseeability test would create unacceptable
and unwarranted difficulties for law enforcement officers
who must make quick decisions in the field, as well as for
judges who would be required to determine after the fact
whether the destruction of evidence in response to a knock
on the door was reasonably foreseeable based on what the
officers knew at the time.
Probable cause and time to secure a warrant. Some
courts, in applying the police-created exigency doctrine,
fault law enforcement officers if, after acquiring evidence
that is sufficient to establish probable cause to search
particular premises, the officers do not seek a warrant but
instead knock on the door and seek either to speak with an
occupant or to obtain consent to search. See, e.g., Cham
bers, supra, at 569 (citing “[t]he failure to seek a warrant
in the face of plentiful probable cause” as a factor indicat­
Cite as: 563 U. S. ____ (2011) 13
Opinion of the Court
ing that the police deliberately created the exigency).
This approach unjustifiably interferes with legitimate
law enforcement strategies. There are many entirely
proper reasons why police may not want to seek a search
warrant as soon as the bare minimum of evidence needed
to establish probable cause is acquired. Without attempt­
ing to provide a comprehensive list of these reasons, we
note a few.
First, the police may wish to speak with the occupants of
a dwelling before deciding whether it is worthwhile to seek
authorization for a search. They may think that a short
and simple conversation may obviate the need to apply for
and execute a warrant. See Schneckloth v. Bustamonte,
412 U.S. 218, 228 (1973). Second, the police may want to
ask an occupant of the premises for consent to search
because doing so is simpler, faster, and less burdensome
than applying for a warrant. A consensual search also
“may result in considerably less inconvenience” and em­
barrassment to the occupants than a search conducted
pursuant to a warrant. Ibid. Third, law enforcement
officers may wish to obtain more evidence before submit­
ting what might otherwise be considered a marginal war­
rant application. Fourth, prosecutors may wish to wait
until they acquire evidence that can justify a search that
is broader in scope than the search that a judicial officer is
likely to authorize based on the evidence then available.
And finally, in many cases, law enforcement may not want
to execute a search that will disclose the existence of an
investigation because doing so may interfere with the
acquisition of additional evidence against those already
under suspicion or evidence about additional but as yet
unknown participants in a criminal scheme.
We have said that “[l]aw enforcement officers are under
no constitutional duty to call a halt to criminal investiga­
tion the moment they have the minimum evidence to
establish probable cause.” Hoffa v. United States, 385
14 KENTUCKY v. KING
Opinion of the Court
U. S. 293, 310 (1966). Faulting the police for failing to
apply for a search warrant at the earliest possible time
after obtaining probable cause imposes a duty that is
nowhere to be found in the Constitution.
Standard or good investigative tactics. Finally, some
lower court cases suggest that law enforcement officers
may be found to have created or manufactured an exi­
gency if the court concludes that the course of their inves­
tigation was “contrary to standard or good law enforce­
ment practices (or to the policies or practices of their
jurisdictions).” Gould, 364 F.3d, at 591. This approach
fails to provide clear guidance for law enforcement officers
and authorizes courts to make judgments on matters that
are the province of those who are responsible for federal
and state law enforcement agencies.
C
Respondent argues for a rule that differs from those
discussed above, but his rule is also flawed. Respondent
contends that law enforcement officers impermissibly
create an exigency when they “engage in conduct that
would cause a reasonable person to believe that entry is
imminent and inevitable.” Brief for Respondent 24. In
respondent’s view, relevant factors include the officers’
tone of voice in announcing their presence and the force­
fulness of their knocks. But the ability of law enforcement
officers to respond to an exigency cannot turn on such
subtleties.
Police officers may have a very good reason to announce
their presence loudly and to knock on the door with some
force. A forceful knock may be necessary to alert the
occupants that someone is at the door. Cf. United States v.
Banks, 540 U.S. 31, 33 (2003) (Police “rapped hard
enough on the door to be heard by officers at the back
door” and announced their presence, but defendant “was
in the shower and testified that he heard nothing”). Fur­
Cite as: 563 U. S. ____ (2011) 15
Opinion of the Court
thermore, unless police officers identify themselves loudly
enough, occupants may not know who is at their doorstep.
Officers are permitted—indeed, encouraged—to identify
themselves to citizens, and “in many circumstances this
is cause for assurance, not discomfort.” United States v.
Drayton, 536 U.S. 194, 204 (2002). Citizens who are
startled by an unexpected knock on the door or by the
sight of unknown persons in plain clothes on their door­
step may be relieved to learn that these persons are police
officers. Others may appreciate the opportunity to make
an informed decision about whether to answer the door to
the police.
If respondent’s test were adopted, it would be extremely
difficult for police officers to know how loudly they may
announce their presence or how forcefully they may knock
on a door without running afoul of the police-created
exigency rule. And in most cases, it would be nearly im­
possible for a court to determine whether that threshold
had been passed. The Fourth Amendment does not re­
quire the nebulous and impractical test that respondent
proposes.5
——————
5 Contrary to respondent’s argument, see Brief for Respondent 13–18,
Johnson v. United States, 333 U.S. 10 (1948), does not require affir­
mance in this case. In Johnson, officers noticed the smell of burning
opium emanating from a hotel room. They then knocked on the door
and demanded entry. Upon seeing that Johnson was the only occupant
of the room, they placed her under arrest, searched the room, and
discovered opium and drug paraphernalia. Id., at 11.
Defending the legality of the search, the Government attempted to
justify the warrantless search of the room as a valid search incident to
a lawful arrest. See Brief for United States in Johnson v. United States,
O. T. 1947, No. 329, pp. 13, 16, 36. The Government did not contend
that the officers entered the room in order to prevent the destruction of
evidence. Although the officers said that they heard a “ ‘shuffling’ ”
noise inside the room after they knocked on the door, 333 U.S., at 12,
the Government did not claim that this particular noise was a noise
that would have led a reasonable officer to think that evidence was
about to be destroyed. Thus, Johnson is simply not a case about
16 KENTUCKY v. KING
Opinion of the Court
D
For these reasons, we conclude that the exigent circum­
stances rule applies when the police do not gain entry to
premises by means of an actual or threatened violation of
the Fourth Amendment. This holding provides ample
protection for the privacy rights that the Amendment
protects.
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. And whether the person who
knocks on the door and requests the opportunity to speak
is a police officer or a private citizen, the occupant has no
obligation to open the door or to speak. Cf. Florida v.
Royer, 460 U.S. 491, 497–498 (1983). (“[H]e may decline
to listen to the questions at all and may go on his way”).
When the police knock on a door but the occupants choose
not to respond or to speak, “the investigation will have
reached a conspicuously low point,” and the occupants
“will have the kind of warning that even the most elabo­
rate security system cannot provide.” Chambers, 395
F.3d, at 577 (Sutton, J., dissenting). And even if an occu­
pant chooses to open the door and speak with the officers,
the occupant need not allow the officers to enter the prem­
ises and may refuse to answer any questions at any time.
Occupants who choose not to stand on their constitu­
tional rights but instead elect to attempt to destroy evi­
dence have only themselves to blame for the warrantless
exigent-circumstances search that may ensue.
——————
exigent circumstances. See id., at 14–15 (noting that if “exceptional
circumstances” existed—for example, if a “suspect was fleeing or likely
to take flight” or if “evidence or contraband was threatened with
removal or destruction”—then “it may be contended that a magistrate’s
warrant for search may be dispensed with”).
Cite as: 563 U. S. ____ (2011) 17
Opinion of the Court
IV
We now apply our interpretation of the police-created
exigency doctrine to the facts of this case.
A
We need not decide whether exigent circumstances
existed in this case. Any warrantless entry based on
exigent circumstances must, of course, be supported by a
genuine exigency. See Brigham City, 547 U.S., at 406.
The trial court and the Kentucky Court of Appeals found
that there was a real exigency in this case, but the Ken­
tucky Supreme Court expressed doubt on this issue, ob­
serving that there was “certainly some question as to
whether the sound of persons moving [inside the apart­
ment] was sufficient to establish that evidence was being
destroyed.” 302 S.W. 3d, at 655. The Kentucky Supreme
Court “assum[ed] for the purpose of argument that exigent
circumstances existed,” ibid., and it held that the police
had impermissibly manufactured the exigency.
We, too, assume for purposes of argument that an exi­
gency existed. We decide only the question on which the
Kentucky Supreme Court ruled and on which we granted
certiorari: Under what circumstances do police impermis­
sibly create an exigency? Any question about whether an
exigency actually existed is better addressed by the Ken­
tucky Supreme Court on remand. See Kirk v. Louisiana,
536 U.S. 635, 638 (2002) (per curiam) (reversing state­
court judgment that exigent circumstances were not re­
quired for warrantless home entry and remanding for
state court to determine whether exigent circumstances
were present).
B
In this case, we see no evidence that the officers either
violated the Fourth Amendment or threatened to do so
prior to the point when they entered the apartment.
18 KENTUCKY v. KING
Opinion of the Court
Officer Cobb testified without contradiction that the offi­
cers “banged on the door as loud as [they] could” and
announced either “ ‘Police, police, police’ ” or “ ‘This is the
police.’ ” App. 22–23. This conduct was entirely consistent
with the Fourth Amendment, and we are aware of no
other evidence that might show that the officers either
violated the Fourth Amendment or threatened to do so (for
example, by announcing that they would break down the
door if the occupants did not open the door voluntarily).
Respondent argues that the officers “demanded” entry to
the apartment, but he has not pointed to any evidence in
the record that supports this assertion. He relies on a
passing statement made by the trial court in its opinion
denying respondent’s motion to suppress. See App. to Pet.
for Cert. 3a–4a. In recounting the events that preceded
the search, the judge wrote that the officers “banged on
the door of the apartment on the back left of the breeze­
way identifying themselves as police officers and demand
ing that the door be opened by the persons inside.” Ibid.
(emphasis added and deleted). However, at a later point
in this opinion, the judge stated that the officers “initially
knock[ed] on the door of the apartment unit and await[ed]
the response or consensual entry.” Id., at 9a. This later
statement is consistent with the testimony at the suppres­
sion hearing and with the findings of the state appellate
courts. See 302 S.W. 3d, at 651 (The officers “knocked
loudly on the back left apartment door and announced
‘police’ ”); App. to Pet. for Cert. 14a (The officers “knock[ed]
on the door and announc[ed] themselves as police”); App.
22–24. There is no evidence of a “demand” of any sort,
much less a demand that amounts to a threat to violate
the Fourth Amendment. If there is contradictory evidence
that has not been brought to our attention, the state court
may elect to address that matter on remand.
Finally, respondent claims that the officers “explained to
[the occupants that the officers] were going to make entry
Cite as: 563 U. S. ____ (2011) 19
Opinion of the Court
inside the apartment,” id., at 24, but the record is clear
that the officers did not make this statement until after
the exigency arose. As Officer Cobb testified, the officers
“knew that there was possibly something that was going to
be destroyed inside the apartment,” and “[a]t that point,
. . . [they] explained . . . [that they] were going to make
entry.” Ibid. (emphasis added). Given that this an­
nouncement was made after the exigency arose, it could
not have created the exigency.
* * *
Like the court below, we assume for purposes of argu­
ment that an exigency existed. Because the officers in this
case did not violate or threaten to violate the Fourth
Amendment prior to the exigency, we hold that the exi­
gency justified the warrantless search of the apartment.
The judgment of the Kentucky Supreme Court is re­
versed, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
Cite as: 563 U. S. ____ (2011) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–1272
_________________
KENTUCKY, PETITIONER v. HOLLIS DESHAUN KING
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
KENTUCKY
[May 16, 2011]
JUSTICE GINSBURG, dissenting.
The Court today arms the police with a way routinely to
dishonor the Fourth Amendment’s warrant requirement in
drug cases. In lieu of presenting their evidence to a neu
tral magistrate, police officers may now knock, listen, then
break the door down, nevermind that they had ample time
to obtain a warrant. I dissent from the Court’s reduction
of the Fourth Amendment’s force.
The Fourth Amendment guarantees to the people “[t]he
right . . . to be secure in their . . . houses . . . against un
reasonable searches and seizures.” Warrants to search,
the Amendment further instructs, shall issue only upon a
showing of “probable cause” to believe criminal activity is
afoot. These complementary provisions are designed to
ensure that police will seek the authorization of a neutral
magistrate before undertaking a search or seizure. Excep
tions to the warrant requirement, this Court has ex
plained, must be “few in number and carefully delineated,”
if the main rule is to remain hardy. United States v.
United States Dist. Court for Eastern Dist. of Mich., 407
U.S. 297, 318 (1972); see Kyllo v. United States, 533 U.S.
27, 31 (2001).
This case involves a principal exception to the warrant
requirement, the exception applicable in “exigent circum
stances.” See ante, at 6–7. “[C]arefully delineated,” the
exception should govern only in genuine emergency situa
2 KENTUCKY v. KING
GINSBURG, J., dissenting
tions. Circumstances qualify as “exigent” when there is an
imminent risk of death or serious injury, or danger that
evidence will be immediately destroyed, or that a suspect
will escape. Brigham City v. Stuart, 547 U.S. 398, 403
(2006). The question presented: May police, who could
pause to gain the approval of a neutral magistrate, dis
pense with the need to get a warrant by themselves creat
ing exigent circumstances? I would answer no, as did the
Kentucky Supreme Court. The urgency must exist, I
would rule, when the police come on the scene, not subse
quent to their arrival, prompted by their own conduct.
I
Two pillars of our Fourth Amendment jurisprudence
should have controlled the Court’s ruling: First, “whenever
practical, [the police must] obtain advance judicial ap
proval of searches and seizures through the warrant pro
cedure,” Terry v. Ohio, 392 U.S. 1, 20 (1968); second,
unwarranted “searches and seizures inside a home” bear
heightened scrutiny, Payton v. New York, 445 U.S. 573,
586 (1980). The warrant requirement, Justice Jackson
observed, ranks among the “fundamental distinctions
between our form of government, where officers are un-
der the law, and the police-state where they are the law.”
Johnson v. United States, 333 U.S. 10, 17 (1948). The
Court has accordingly declared warrantless searches, in
the main, “per se unreasonable.” Mincey v. Arizona, 437
U.S. 385, 390 (1978); see also Groh v. Ramirez, 540 U.S.
551, 559 (2004). “[T]he police bear a heavy burden,” the
Court has cautioned, “when attempting to demonstrate an
urgent need that might justify warrantless searches.”
Welsh v. Wisconsin, 466 U.S. 740, 749–750 (1984).
That heavy burden has not been carried here. There
was little risk that drug-related evidence would have been
destroyed had the police delayed the search pending
a magistrate’s authorization. As the Court recognizes,
Cite as: 563 U. S. ____ (2011) 3
GINSBURG, J., dissenting
“[p]ersons in possession of valuable drugs are unlikely to
destroy them unless they fear discovery by the police.”
Ante, at 8. Nothing in the record shows that, prior to the
knock at the apartment door, the occupants were appre
hensive about police proximity.
In no quarter does the Fourth Amendment apply with
greater force than in our homes, our most private space
which, for centuries, has been regarded as “ ‘entitled to
special protection.’ ” Georgia v. Randolph, 547 U.S. 103,
115, and n. 4 (2006); Minnesota v. Carter, 525 U.S. 83, 99
(1998) (KENNEDY, J., concurring). Home intrusions, the
Court has said, are indeed “the chief evil against which . . .
the Fourth Amendment is directed.” Payton, 445 U.S., at
585 (internal quotation marks omitted); see Silverman v.
United States, 365 U.S. 505, 511 (1961) (“At [the Fourth
Amendment’s] very core stands the right of a man to
retreat to his own home and there be free from unreason
able governmental intrusion.”). “ ‘[S]earches and seizures
inside a home without a warrant are [therefore] presump
tively unreasonable.’ ” Brigham City, 547 U.S., at 403
(quoting Groh, 540 U.S., at 559). How “secure” do our
homes remain if police, armed with no warrant, can pound
on doors at will and, on hearing sounds indicative of
things moving, forcibly enter and search for evidence of
unlawful activity?
II
As above noted, to justify the police activity in this case,
Kentucky invoked the once-guarded exception for emer
gencies “in which the delay necessary to obtain a warrant
. . . threaten[s] ‘the destruction of evidence.’ ” Schmerber
v. California, 384 U.S. 757, 770 (1966) (quoting Preston v.
United States, 376 U.S. 364, 367 (1964)). To fit within
this exception, “police action literally must be [taken] ‘now
or never’ to preserve the evidence of the crime.” Roaden v.
Kentucky, 413 U.S. 496, 505 (1973).
4 KENTUCKY v. KING
GINSBURG, J., dissenting
The existence of a genuine emergency depends not only
on the state of necessity at the time of the warrantless
search; it depends, first and foremost, on “actions taken
by the police preceding the warrantless search.” United
States v. Coles, 437 F.3d 361, 367 (CA3 2006). See also
United States v. Chambers, 395 F.3d 563, 565 (CA6 2005)
(“[O]fficers must seek a warrant based on probable cause
when they believe in advance they will find contraband or
evidence of a crime.”). “[W]asting a clear opportunity to
obtain a warrant,” therefore, “disentitles the officer from
relying on subsequent exigent circumstances.” S. Saltz
burg & D. Capra, American Criminal Procedure 376 (8th
ed. 2007).
Under an appropriately reined-in “emergency” or “exi
gent circumstances” exception, the result in this case
should not be in doubt. The target of the investigation’s
entry into the building, and the smell of marijuana seep
ing under the apartment door into the hallway, the Ken
tucky Supreme Court rightly determined, gave the police
“probable cause . . . sufficient . . . to obtain a warrant to
search the . . . apartment.” 302 S.W.3d 649, 653 (2010).
As that court observed, nothing made it impracticable for
the police to post officers on the premises while proceeding
to obtain a warrant authorizing their entry. Id., at
654. Before this Court, Kentucky does not urge otherwise.
See Brief for Petitioner 35, n. 13 (asserting “[i]t should be
of no importance whether police could have obtained a
warrant”).
In Johnson, the Court confronted this scenario: standing
outside a hotel room, the police smelled burning opium
and heard “some shuffling or noise” coming from the room.
333 U.S., at 12 (internal quotation marks omitted). Could
the police enter the room without a warrant? The Court
answered no. Explaining why, the Court said:
“The right of officers to thrust themselves into a home
Cite as: 563 U. S. ____ (2011) 5
GINSBURG, J., dissenting
is . . . a grave concern, not only to the individual but to
a society which chooses to dwell in reasonable security
and freedom from surveillance. When the right of
privacy must reasonably yield to the right of search is,
as a rule, to be decided by a judicial officer, not a
policeman . . . .
. . . . .
“If the officers in this case were excused from the
constitutional duty of presenting their evidence to a
magistrate, it is difficult to think of [any] case in
which [a warrant] should be required.” Id., at 14–15.
I agree, and would not allow an expedient knock to over
ride the warrant requirement.* Instead, I would accord
that core requirement of the Fourth Amendment full
respect. When possible, “a warrant must generally be
secured,” the Court acknowledges. Ante, at 5. There is
every reason to conclude that securing a warrant was
entirely feasible in this case, and no reason to contract the
Fourth Amendment’s dominion.
——————
* The Court in Johnson was informed that “when [the officer]
knocked on [Johnson’s] door the ‘first thing that naturally struck [her]’
was to conceal the opium and the equipment for smoking it.” See Brief
for United States in Johnson v. United States, O. T. 1947, No. 329,
p. 17, n. 6. Had the Government in Johnson urged that the “shuffling
or noise” indicated evidence was at risk, would the result have
changed? Justice Jackson’s recognition of the primacy of the warrant
requirement suggests not. But see ante, at 15, n. 5 (distinguishing
Johnson on the ground that the Government did not contend “that
the officers entered the room in order to prevent the destruction of
evidence”).