KENTUCKY v. KING

Opinion of the Court

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SUPREME COURT OF THE UNITED STATES
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No. 09–1272

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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 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 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 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 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 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. i>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 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 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 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 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

’Brigham City, 547 U. S., at 404 (alteration and action.” 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 ­ 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 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., Chambers, supra, at 569 (citing “[t]he failure to seek a warrant in the face of plentiful probable cause” as a factor indicat ­ 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 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 ­ 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 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. 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. 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 demanding 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 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.

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).

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. 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”).

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 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).

4 There is a strong argument to be made that, at least in most circum­ 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.

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 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”).

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 neutral 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 unreasonable 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. Exceptions to the warrant requirement, this Court has explained, 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 circumstances.” See ante, at 6–7. “[C]arefully delineated,” the exception should govern only in genuine emergency situations. 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, dispense with the need to get a warrant by themselves creating 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 subsequent 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 approval of searches and seizures through the warrant procedure,” 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 under 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, “[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 apprehensive 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 unreasonable governmental intrusion.”). “ ‘[S]earches and seizures inside a home without a warrant are [therefore] presumptively 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 emergencies “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). 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. Saltzburg & D. Capra, American Criminal Procedure 376 (8th ed. 2007).

Under an appropriately reined-in “emergency” or “exigent 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 seeping under the apartment door into the hallway, the Kentucky 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 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 override 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”).

Print this transcript Transcript: 

ORAL ARGUMENT OF JOSHUA D. FARLEY ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next this morning in Case 09-1272, Kentucky v. King.

Mr. Farley.

Mr. Farley: Mr. Chief Justice, and may it please the Court:

The issue before you today, of whether or not police can impermissibly create exigent circumstances, arises from the improper suppression of reasonably seized evidence after a reasonable warrantless entry.

The test set forth by the Kentucky Supreme Court is improper for several reasons, the first of which is that this Court has routinely held that the subjective intent of police officers when effecting a warrantless entry is irrelevant.

Justice Ruth Bader Ginsburg: Where did the -- where did the Kentucky Supreme Court -- where did the Kentucky Supreme Court say that it was looking to a subjective state of mind on the part of the police?

Mr. Farley: Well, the Kentucky Supreme Court's first prong of their test, and I believe it's in our petition appendix on page 26 -- I'm sorry.

Their -- their discussion starts on page 44a and carries over to 46A.

The first question of their test is whether or not the officers acted in bad faith in an attempt to purposefully evade the warrant requirements.

Justice Ruth Bader Ginsburg: That didn't -- that didn't apply in this case?

Mr. Farley: That is correct.

The second prong of the Kentucky Supreme Court's test is whether or not the actions of the Respondent in this case or the occupant of the home would have been foreseeable by the police officers before they knocked and announced their presence.

Now, the problem with the foreseeability test--

Justice Ruth Bader Ginsburg: Why is -- why is that subjective?

Why isn't that, wouldn't it be foreseeable to a reasonable police officer similarly situated?

Mr. Farley: --Well, Justice Ginsburg, it -- it isn't directly a subjective inquiry.

However, police officers are trained to expect and foresee illegal activity so that they may carry out the duties of their job in protecting the citizens.

So under a foreseeability test, a police officer will always foresee illegal activity in response to his actions.

Be it walking down the street or knocking on your door, a reasonable officer will always foresee illegal activity, and for that reason, the Kentucky Supreme Court's test is completely unworkable.

Several of the other circuits and the lower courts have adopted tests that also attempt to add an extra exception, an unwarranted closure of the exigent circumstances exception that narrows the use of that exception by police officers.

The test that the Commonwealth would propose is a simple lawfulness test.

Now, under this test, as long as an officer behaves lawfully, there should be no suppression of evidence seized after an otherwise reasonable search--

Chief Justice John G. Roberts: So, you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs, drug transactions.

Every 2 weeks they walk through and knock on every door and wait for evidence of the destruction of -- of -- of drugs.

Is that all right?

Mr. Farley: --Well, there's -- I would say yes, if there is probable cause as well as--

Chief Justice John G. Roberts: Well, the probable cause, of course, comes when they hear the, you know, flushing and, you know, the hiding or whatever behind the door.

Mr. Farley: --Well, I would assert that there are -- there are two separate issues here.

You must have probable cause separate from the existence of exigent circumstances.

In this case there was probable cause due to the smell of marijuana.

Justice Ruth Bader Ginsburg: They go to the apartment building and they sniff at every door, and when they sniff, when a strong smell of marijuana emanates from the door, then they go through this routine, but they do it as a matter of every 2 weeks, as the Chief said, as a routine matter.

They don't just knock on every door, but they knock on the doors where they smell marijuana, and they do that just as a routine, in all the buildings where they suspect there may be drug -- drugs being stashed.

Mr. Farley: Justice Ginsburg, under a simple lawfulness test, since the officers have not violated the Fourth Amendment prior to the exigency arising, there would be no need to suppress any evidence.

That would be perfectly fine for the officers to do that.

It may not be the most--

Justice Sonia Sotomayor: --to the Chief Justice when he said -- and I think this was the Solicitor General's position -- that the police can routinely knock at a door and wait to see if they hear a toilet flushing.

I -- I've taken it out of this case but -- because I don't know what noise means.

But your answer would be yes?

Mr. Farley: --Yes, if -- if probable cause exists.

Justice Sonia Sotomayor: Well, why -- why do you need the probable cause inquiry?

What does it have to do with anything?

Mr. Farley: Well, under the Fourth Amendment for a reasonable warrantless search to occur, a police officer must have--

Justice Sonia Sotomayor: Before they can go in--

Mr. Farley: --Yes.

The police officers must have--

Justice Sonia Sotomayor: --because they have just heard the toilet flushing?

Mr. Farley: --They must have probable cause coupled with exigent circumstances.

Chief Justice John G. Roberts: I'm sorry.

I think I have got two different probable causes that's caused -- causing me some confusion.

I understand their requirement of probable cause, and that they hear sound of evidence being destroyed and therefore enter.

Is that -- or are you talking about the probable cause to think there's something going on in the first place?

Mr. Farley: There are two separate issues here.

They must have probable cause aside from exigent circumstances.

Then they must also have a reasonable--

Justice Anthony Kennedy: To knock on the door?

They must have probable cause to knock on the door?

Mr. Farley: --No, Justice Kennedy.

They can just--

Justice Anthony Kennedy: Take us--

Mr. Farley: --they could knock on the door.

However--

Justice Anthony Kennedy: --Take us through it -- take us through it chronologically.

The policeman is walking through the hallway, he has no probable cause.

He -- he--

Mr. Farley: --He could knock on the door.

Justice Anthony Kennedy: --He smells marijuana--

Mr. Farley: The smell of--

Justice Anthony Kennedy: --then he knocks on the door.

When does the probable cause arise and when must it arise?

Mr. Farley: --Well, the smell of marijuana would give probable cause to obtain a search warrant.

Once he knocks on the door and hears noises consistent with the destruction of physical evidence, then an exigency has arised.

Now the officer has both probable cause and an exigent circumstance--

Justice Elena Kagan: But I don't understand why the smell of marijuana is necessary.

This goes back to what Justice Sotomayor was saying, you don't need probable cause to knock on a door.

Knocking on a door is perfectly lawful.

So, if there's just a lawfulness test, the knock is fine.

And then when you hear whatever it is that you hear that you think creates exigent circumstances, whether it's a toilet flushing or whether it's just noise, that too gives you the ability to go right in.

So -- so if it's just lawfulness, you don't need the marijuana smell even, do you?

Mr. Farley: --Well, I think -- I think we're confused.

In order to enter with exigent circumstances, you must also have separate probable cause, and--

Justice Elena Kagan: Probable cause beyond thinking that the evidence--

Mr. Farley: --Beyond the reasonable belief--

Justice Elena Kagan: --is being destroyed?

Mr. Farley: --Yes.

Correct.

Justice Elena Kagan: Okay.

Mr. Farley: That is correct.

Justice Antonin Scalia: It might just be somebody going to the toilet, right?

Mr. Farley: It could be.

It could be.

It could very well be.

Justice Antonin Scalia: So, you have to suspect that the reason the toilet is flushing is somebody is trying to get rid of evidence.

And in order for that to be the case, you have to have smelled marijuana?

Mr. Farley: Yes, Justice Scalia, you're absolutely correct.

Chief Justice John G. Roberts: So there's only one probable cause, right?

Mr. Farley: Yes.

Chief Justice John G. Roberts: Okay.

Mr. Farley: Yes.

The exigent circumstances is a reasonable belief based upon the totality of the surrounding circumstances.

Here, given that the officers had a reasonable belief that they were chasing a fleeing felon, they had a reasonable belief that this was the doorway he had entered, then you couple that with the noises that they heard, they testified were based on their training--

Justice Ruth Bader Ginsburg: And may we just--

Mr. Farley: --and experience.

Justice Ruth Bader Ginsburg: --Mr. Farley, may we just go back over -- you're putting in the fleeing felon, but as far as I understand from this record, it was never shown that the dealer that the police were following was aware that he was following and that he was fleeing from them.

I mean, this is the -- it's not part of the question you presented, because we've granted only on the exigent circumstances, but I didn't think that there was -- the dealer wasn't called and he wasn't asked did you even know that the police were following you?

Mr. Farley: That -- that's correct, Justice Ginsburg.

However -- and -- we cannot divorce the officers' chase of this suspect, regardless of whether he knew of their hot pursuit or not, we cannot divorce those facts from what the officers knew when they knocked on the door.

Chief Justice John G. Roberts: Sure, you can.

There's nothing illegal about walking down the hall and knocking on somebody's door; and if as a police officer you say, but I smell marijuana, and then you hear the flushing, then there's probable cause.

You don't need any business about the dealer and the breezeway and all that at all.

Mr. Farley: Certainly.

Certainly, Mr. Chief Justice.

You're absolutely correct.

I was -- I was just speaking in terms of this case, saying that there were -- there was ample evidence that exigent circumstances existed here, coupled with the probable cause.

Justice Sonia Sotomayor: And in your view--

Justice Ruth Bader Ginsburg: Question -- may I ask a question that goes back to what you said?

You have clarified very nicely that there has to be probable cause to think that there's something wrong going on in the -- the apartment; and you said that is, at that point when they -- the marijuana strong smell comes from the door, at that point police could go and get a warrant.

Then they don't have to, because then they knocked on the door.

We start out with a strong presumption that the Fourth Amendment requires a warrant, a strong preference for getting the warrant.

So why in this situation wouldn't the first response of the police be, instead of knocking -- because once they knock they alert the people in there -- let's get a warrant; we'll come back?

Mr. Farley: Well, the officers testified under these circumstances that they believed that they were in hot pursuit of this felon.

So at the time they were at the door they believed he had entered this apartment and was aware of their presence and was destroying evidence of his deal of crack cocaine, so this is an evolving--

Justice Sonia Sotomayor: --Counsel, why was -- how does this holding by us not become a simple warrantless entry in any drug case, meaning police knock on the door, suspect doesn't answer it, gets up and moves to their bedroom?

Because there's no noise that was described by this police officer.

It was simply not answering the door and moving.

So if that's all it takes, any police officer will come in and say: In my experience, most drug dealers destroy the evidence when we knock.

Mr. Farley: --Well--

Justice Sonia Sotomayor: Aren't we just doing away with Johnson?

And aren't we just simply saying they can just walk in whenever they smell marijuana, whenever they think there's drugs on the other side?

Why do we even bother giving them a -- a warrant?

Mr. Farley: --Well, I would disagree with you.

I think that when determining whether an exigent circumstance exists, you look at the totality of the circumstances.

So -- and there would be a myriad of cases in which a court would determine that, simply based upon the testimony or the noises that were heard, with no surrounding circumstances, that exigent circumstances may not have existed.

Justice Antonin Scalia: What if -- what if the defendants here had not flushed the evidence down but had answered the door and said, "Yes"?

Would the policeman have been able to do anything just because they had smelled marijuana?

Mr. Farley: They could have sought a consensual encounter with the occupant--

Justice Antonin Scalia: Oh, yes, but they say: Oh, heck, no, you can't come in; do you have a warrant?

Mr. Farley: --Then the officers would not have been able to force entry.

Justice Antonin Scalia: So basically the -- the police were taking advantage of the stupidity of the criminals, is that right?

That's terrible, that's not fair, is it?

Mr. Farley: Well, I don't if I -- I don't know that I would phrase it -- there is no -- there is not a requirement to inform an occupant of a right to denial.

However, the officers could not have forced their way into the home.

That would have made this a case like Johnson.

Justice Sonia Sotomayor: What if the officers had simply knocked, said we're going to kick the door in if you don't open it?

Mr. Farley: I believe that's still fine under a lawfulness test, unless the occupant of the home submits to that show of authority and comes to the door and allows entry.

Now, if--

Justice Antonin Scalia: Well, after -- after they've heard the movement inside or the flushing or whatever, you can't just kick it in because you've smelled marijuana.

Can you do it, because you -- you knock on the door because you smell marijuana, nobody answers, and you kick the door in?

Mr. Farley: --Well, I believe that the noises that they heard were consistent with destruction of physical evidence based upon--

Justice Antonin Scalia: Yes, but without that noise.

Just--

Mr. Farley: --No, no.

Justice Antonin Scalia: --No, of course not.

Mr. Farley: So no, no, of course not.

They would have to obtain a warrant at that point.

If the person came to the door and denied them consent, they would have to obtain a warrant.

If the person did not come to the door and made -- no exigency arose, then the officers would still have to go and obtain a warrant.

Justice Anthony Kennedy: But this may be a bit rudimentary, but can you tell me why isn't the evidence isn't always being destroyed when the marijuana is being smoked?

Isn't it being burnt up?

[Laughter]

Mr. Farley: I -- Justice Kennedy, I -- I would tend to -- I would tend to agree with you.

However, I know this Court in Johnson stated that the smell of burning opium was not the destruction of evidence, and the only thing they could have obtained would have been the fumes or the vapors.

I tend to agree -- disagree with that personally.

However, from a legal viewpoint.

The simple smell of burning marijuana is not--

Justice Anthony Kennedy: So the distinction is being destroyed as opposed to being consumed?

Mr. Farley: --Correct, that is -- that is correct.

Justice Ruth Bader Ginsburg: How is it -- you mention Johnson.

Mr. Farley: Yes.

Justice Ruth Bader Ginsburg: And I think the other side says it was the same thing except it was a hotel room instead of an apartment building.

The police smell, in that case it was -- what was it?

Mr. Farley: Well, what occurred in Johnson, I believe, is -- is completely different than what occurred here.

What occurred in Johnson was the officers forced their way into the occupant's apartment -- the occupant's hotel room, and then said: Consider yourself under--

Justice Ruth Bader Ginsburg: Didn't they smell marijuana or opium or something?

Mr. Farley: --Well, they did, and they knocked on the door, and she came to the door and they -- they forced their way in.

There was no -- there was no "let us in", there was no demand for entry, there was no even ask for consent to enter.

They then said: Consider yourself under arrest.

They searched, and then held her under arrest based upon the evidence that they obtained.

Justice Ruth Bader Ginsburg: You left out one thing.

I thought they heard rustling noises before they attempted to get into the apartment -- into the hotel room.

There was something about noises.

Mr. Farley: Well, I believe they heard sounds when they knocked on the door.

But she actually came to the door and the officers forced entry.

Here we don't have that.

We have no forced entry.

These are two different circumstances.

Johnson, an exigency did not exist.

Here an exigency does exist.

If there are no further questions, I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, Mr. Farley.

Mr. Farley: Thank you.

Chief Justice John G. Roberts: Ms. O'Connell.

ORAL ARGUMENT OF ANN O'CONNELL, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Ms O'Connell: Mr. Chief Justice, and may it please the Court:

If police officers act lawfully in conducting their investigation, they may respond to any exigencies that arise.

It is up to police officers to determine how they will collect evidence in any given case as long as they stay within the confines of the Fourth Amendment.

Although securing a warrant--

Justice Sonia Sotomayor: Could you -- does a ruling in this case that any lawful conduct by the police mean that the police knock, somebody gets up on the other side and walks through a closed door, and closes a door in the back, and police say in my experience it's -- it's consistent with the destruction of property that drug dealers will go into a closed room to get rid of it.

Is that enough?

Ms O'Connell: --I don't think so, Justice Sotomayor.

I think that in any case--

Justice Antonin Scalia: Why -- why not?

I mean people -- you know, when there's a knock on -- on the door, is the normal human reaction to walk into the other room and shut the door?

Ms O'Connell: --Well, a person might not--

Justice Antonin Scalia: That's peculiar behavior, isn't it?

Ms O'Connell: --A person doesn't have to answer the door.

A person might come to the door, they might also ignore whose ever at the door.

Both of those options are fine.

Justice Antonin Scalia: Is that a common experience, that you knock on a door and all you hear is somebody walking out of the room and shutting a door?

Ms O'Connell: I mean, I -- I guess that a person is entitled to do that.

Justice Antonin Scalia: I don't recall it ever happening to me, but maybe -- maybe I'm a likable fellow and people open the door.

[Laughter]

Ms O'Connell: I mean, I think that that -- that's certainly a lawful option that somebody has when the police officers knock at their door.

And certainly in this case--

Justice Antonin Scalia: They could say: Go away.

They could do a lot of stuff.

But walk in the other room and shut the door?

Ms O'Connell: --That's--

Justice Antonin Scalia: Strange.

Ms O'Connell: --I guess some people might do that if they don't want to give consent to police entry.

I think that in order to go in based on an exigent circumstance the police would have to be able to articulate to a court that they objectively, reasonably believed that there was destruction of evidence occurring inside.

Justice Ruth Bader Ginsburg: And what was that here?

Because it is kind of vague.

They heard movement.

What kind -- what kind of movement?

It said nothing about a toilet flushing--

Ms O'Connell: Justice Ginsburg, it's our position that the Court should assume that there was an exigency in this case.

In the Respondent's brief in opposition, he argued that there was insufficient evidence of exigency.

The Court nonetheless granted cert on the question of whether a police-created exigency would be okay under the Fourth Amendment.

The Solicitor General believes that the Court should assume there was an exigency, and if it agrees with Kentucky on the question presented and then reverses, it should remand to the Kentucky Supreme Court for a determination of whether an exigency existed.

The trial court in this case certainly found that the movement inside of the apartment was enough for the officer to reasonably conclude that somebody inside was destroying evidence.

The Kentucky Supreme Court assumed that that was so in order to reach the question presented in this case that the Court granted cert on.

Justice Elena Kagan: Ms. O'Connell, if I could ask you about the government's proposed standard: You say that as long as each step in the police conduct is lawful, that's sufficient, and each step would -- the way the Fourth Amendment works, each step, we're asking, essentially, whether each step is reasonable.

What some courts have done in addition to that -- and this was not the approach of the court below -- but what some courts have done is to say, we also ask a more holistic reasonableness question.

We say: Is the whole process by which the police operated with respect to this person reasonable?

So, for example, we might say, you know: Was there time to get a warrant or did it look like the police were just -- they preferred not to have to deal with a magistrate?

So what's wrong with that sort of standard?

In addition to asking whether each step is reasonable, to say: Look, is the whole pattern here of what the police did to come up with this evidence reasonable?

Ms O'Connell: I think the problem with that test, Justice Kagan, is that police officers have options of how they can conduct searches and seizures.

Getting a warrant is one way that they could do that.

Getting consent to conduct a search or a seizure is another way.

There's no justification in this Court's precedents for requiring police officers to choose one of those options over another if both options are lawful.

In this case, the police officers knocked on the door, not sure which apartment the person that they were pursuing fled into, in order to determine whether that was the correct apartment.

There's no reason why they needed to get a warrant before knocking on the door and seeking cooperation of the people inside.

Justice Anthony Kennedy: Is it your position that the police can do anything that's lawful, even if the purpose of doing so is to create exigent circumstances?

Ms O'Connell: Yes, I think that under this Court -- the way that this Court has interpreted Fourth Amendment warrant exceptions, as long as there is no violation of the Fourth Amendment, that is okay.

The police officers can rely on any ensuing exigency.

Justice Anthony Kennedy: The -- the question presented in the blue brief used the word "impermissible", and we're talking about unlawful.

I take it that there is a difference in those, or no difference?

Ms O'Connell: Well, yes, there is a difference.

I think that that comes up in Respondent's argument that if there was an impermissible demand for entry -- for example, if the police officer said, I have a warrant, let me in, even though he didn't, as in Bumper v. North Carolina -- that that could still be okay under a lawfulness test as long as the suspect reacted by destroying evidence instead of by coming to the door like in Bumper or Johnson and going about with--

Justice Stephen G. Breyer: What are the objections to adding in the alternative, "or in bad faith"?

Ms O'Connell: --Justice Breyer, the objection to that is simply that in all cases that are founded upon probable cause that are not programmatic searches that are conducted without any individualized suspicion, this Court has repeatedly rejected prongs of a Fourth Amendment test that -- that rely on the subjective--

Justice Stephen G. Breyer: Objectively?

I mean, what we're trying to rule out is they -- they hitch -- they get this bright idea, the police: We'll go knock on every door.

So what about that, objectively determined bad faith.

Ms O'Connell: --I'm sorry, I don't--

Justice Stephen G. Breyer: My point is a solely unlawfulness test would allow the police to get into the habit of just knocking at every door, but if you say that also, it has to survive a bad faith test, where bad faith is objectively, not subjectively, determined, then you will rule out the possibility of the police hatching -- which I don't know if they would, but hatching such a plan.

Ms O'Connell: --I guess that it's not totally clear what bad faith would mean in this context.

Justice Stephen G. Breyer: Well, there are circuits who have adopted a bad faith test in the alternative with other things than the word "unlawful".

The Second Circuit uses only the word "unlawful", and I thought we took this case to iron out that discrepancy.

And if we did, I would like to know your objection to ironing it out by taking the Second Circuit test but adding on an objectively determined bad faith rule.

Ms O'Connell: Justice Breyer, I don't -- I don't know what it means to act in bad faith in a case like this as a police officer.

Justice Samuel Alito: Maybe it could mean having no reason for knocking on the door other than to create exigent circumstances.

Ms O'Connell: Well, Justice Alito, I think that it would be difficult to determine objectively whether that was the case.

Certainly--

Justice Stephen G. Breyer: Well, the police say, oh, I don't want to get a warrant.

It's such a bore.

We have other things to do.

I have a great idea; let's knock at the door, and then as soon as he starts moving around, I know what he's going to the -- going into the bathroom means, and we'll hear that, and we'll be able to get in.

Hey, great idea.

Okay.

Now suppose that's the record.

Ms O'Connell: --I think that there's already a significant risk built into the Fourth Amendment that police officers, if they knock on the door and they don't hear somebody destroying evidence inside, they're going to have to leave and get a warrant.

I think that's enough of a--

Justice Antonin Scalia: You don't know that they're destroying evidence unless you have reason to believe that there is contraband inside.

I mean, the -- the hypothetical is an unrealistic one.

They knock on the door and somebody moves inside, that doesn't give them any--

Justice Stephen G. Breyer: No, I mean to add: And in fact, there's probable cause.

Justice Antonin Scalia: --Okay.

Justice Stephen G. Breyer: In addition, he smelled the marijuana.

I just was trying to stick to the relevant points.

Justice Antonin Scalia: Well, that's a different hypothetical.

There's a hypothetical in which--

Justice Stephen G. Breyer: All right.

I add that to the hypothetical.

Justice Antonin Scalia: --they knock on every door under which they smell marijuana.

Justice Stephen G. Breyer: Correct.

That's what I mean, and I don't always spell it out.

Justice Antonin Scalia: Perfectly okay.

Ms O'Connell: --Right, and I think that there's -- the Court shouldn't be concerned, and certainly shouldn't be concerned enough to adopt a bad faith or a subjective motivation prong to a test that it creates--

Justice Sonia Sotomayor: But what makes that different than knocking on the door and saying, open the door or I'm going to kick it in?

You're saying that's lawful because until the person submits, you're suggesting there's no coercion in that whatsoever.

Ms O'Connell: --That's true, and, Justice Sotomayor, to be clear--

Justice Sonia Sotomayor: So why wouldn't that objectively be bad faith if what we find out is they now have a tactic which is they go through this building and every time they smell marijuana, hash, or -- I don't know if crack cocaine smells or not when they're smoking it, but whenever they smell something, they just do that.

Ms O'Connell: --I think the fact that if the person actually does what the police officer says and answers the door will mean that the evidence would be excluded as a coerced consent search is enough of a deterrent to that sort of conduct.

Justice Sonia Sotomayor: So there's no bad faith measure whatsoever in your--

Ms O'Connell: I don't think it's necessary.

Justice Sonia Sotomayor: --analysis, and lawfulness is defined by actual physical seizure.

So if we have cases that suggest something else, a command to submit, your argument would be lost, correct?

Ms O'Connell: I think that's right, if the person submits to the command.

Chief Justice John G. Roberts: Thank you, Ms. O'Connell.

Ms. Drake.

ORAL ARGUMENT OF JAMESA J. DRAKE ON BEHALF OF THE RESPONDENT

Ms Drake: Mr. Chief Justice, and may it please the Court:

The odor of burnt marijuana, coupled with Officer Cobb's cursory and equivocal testimony about the sounds of movement he couldn't discern exactly and that his training and experience led him only possibly to conclude was consistent with the destruction of evidence, is insufficient to establish exigent circumstances.

Chief Justice John G. Roberts: Well, you're--

Justice Antonin Scalia: I'm sorry.

Chief Justice John G. Roberts: --You're describing what you think the evidence was to support exigency, and the suggestion we have heard on the other side is that that's an issue that can be addressed on remand once we, according to the other side, correct the State court's error in that this -- you -- the police cannot create exigent circumstances.

So I -- I don't know that it's terribly relevant what the underlying facts about what they heard was.

That will be relevant depending, or not, depending on what our opinion says.

Ms Drake: It's relevant because it goes to whether exigent circumstances existed.

And as to the question of whether a remand would be appropriate in this case, the question of whether exigent circumstances existed is logically antecedent in any created exigency case.

Chief Justice John G. Roberts: No, it's -- it's not at all.

The court said: I don't care whether exigent circumstances existed; you cannot create exigent circumstances; so I don't care whether they were or not.

The legal standard is antecedent to the application of the facts.

Ms Drake: There's no point in delving into whether an exigency was created by the police if there is no exigency to begin with.

Justice Anthony Kennedy: Well, I -- I think the Court is interested in taking the case on the question whether or not the police may create exigent circumstances and use those exigent circumstances to enter.

Now, whether or not there were exigent circumstances here because of the sound is -- is it seems to me a subsidiary question.

Ms Drake: The other problem with remanding this case for further determination on this issue is, as this Court is aware, the procedural posture of this case is troubling.

The case has already been dismissed.

There is no potential for further proceedings here.

There is no--

Chief Justice John G. Roberts: Oh, sure, there is.

It was dismissed because the State Supreme Court held you can't bring this evidence in.

If we say, oh, yes, you can, then the issue comes live again.

Ms Drake: --That conclusion is dependent on the notion that in an indictment it's merged with the judgment such that a decision in the Commonwealth's favor in this case would vacate the decision of the Kentucky Supreme Court, which in turn vacates the underlying suppression order.

But there is no authority for the notion that an indictment and a judgment merge as a matter of Kentucky law, and so a decision--

Chief Justice John G. Roberts: This is the argument you presented to us in the letter, right?

Ms Drake: --Yes, Your Honor.

Chief Justice John G. Roberts: And, yet, we nonetheless decided to have argument?

Ms Drake: Yes, Your Honor.

Chief Justice John G. Roberts: So maybe it would be -- it's your case, but maybe it would be best to move on to the legal issue.

Ms Drake: If we move to the question of whether the police have created exigent circumstances, it's important that we're all operating on the same understanding of the facts in this case.

This case does not involve a simple knock at the door, and -- and -- and the distinction is important.

In this case, at 9:50 p.m., the officers banged on the door as loudly as they could.

Justice Sonia Sotomayor: Did the trial court make those findings?

I know that you said it in your brief, and I thought I read the trial court record.

I know they knocked loudly.

Ms Drake: Yes.

Justice Sonia Sotomayor: But what else did they do?

Ms Drake: Yes.

And this is located at the appendix to the petition in the bottom of page 3a carrying on to 4a.

The trial court found: Detective Maynard, who was accompanying Officer Cobb in the breezeway attempting to locate and arrest the suspect in question, banged on the door of the apartment on the back left of the breezeway, identifying themselves as police officers and demanding that the door be opened by persons inside.

Officer Cobb testified at the suppression hearing, and this is at page 22 of the joint appendix: Detective Maynard made contact with the door, announced our presence, banged on the door as loud as we could, announced: "Police, police, police".

This is not the case where--

Chief Justice John G. Roberts: Where's -- no "open up".

I thought you said earlier they said "open up"?

Ms Drake: --Yes.

Then Officer Cobb later goes on to explain, and this is on page 24 of the joint appendix: Detective Maynard with Sergeant Simmons we explained to them, referring to the occupants of the apartment, we were going to make entry inside the apartment.

Chief Justice John G. Roberts: Is that after -- after the exigent circumstances or the alleged exigent circumstances were presented?

That's after they heard what they thought, and I know you disagree, was the destruction of evidence?

Ms Drake: It's -- it's unclear from the trial court's factual finding what the order of events was.

The trial court found, banged on the door of the apartment, identified themselves as police officers, and--

Justice Antonin Scalia: Loudly.

Is any of that unlawful?

Is -- is -- is knocking loudly on the door unlawful?

Ms Drake: --It's unreasonable conduct.

Justice Antonin Scalia: Is it -- if it unlawful?

Is -- is saying "Open up, police", is that unlawful?

Ms Drake: Well, it's certainly not unlawful in the sense that it violates any provision of the penal code.

But this is a Fourth Amendment case, so the question is whether it's reasonable.

Justice Antonin Scalia: Miss Drake, the problem I have is there are a lot of constraints on -- on law enforcement, and the one thing that -- that it has going for it is that criminals are stupid.

[Laughter]

And we had a case some years ago in which the issue was whether the Washington police could enter buses arriving from -- from the south and -- and randomly ask passengers, do you mind if we look in your luggage?

And the -- the -- the mules who were carrying marijuana were stupid enough to say: Oh, of course, just to show that they had nothing to fear.

And an enormous number of arrests were -- were effected in that fashion.

We didn't say that's not fair because you're taking advantage of the -- of the ignorance of these -- these poor criminals.

We said that's perfectly okay.

And it seems to me the same thing is going on here.

These people could have answered the door.

There's a policeman knocking on the door.

All he's saying is open the door, open the door, say, yes, what do you want?

Say, you know, blah, blah, blah.

They say, well, get a warrant.

Shut the door.

They didn't do that.

But everything done was perfectly lawful.

It's unfair to the criminal?

Is that -- is that the problem?

I really don't understand the problem.

Ms Drake: I have two responses to Your Honor's question.

The first is that -- and along with this notion that criminals are stupid and so that's why we get all these criminal cases, there is no difference between what happened in this case and how an innocent person would respond.

Recall Officer Cobb's testimony is simply that after banging he heard movement.

Any innocent person at 10:00 at night would have to move in order--

Justice Samuel Alito: Could I ask you this?

It might -- it might make a difference to me whether the police demanded entry prior to the time when the alleged exigent circumstances arose.

And the only testimony on this point that I am aware of is on pages 22 and 23 of the appendix when police banged on the door as loud as they could and announced police, police, police, and then Detective Maynard banged on the door and said this is the police.

Now, is there any -- anything more in the record?

Any evidence that they, prior to the time when they heard what they allegedly heard, they said open the door?

Ms Drake: --The portion of the Joint Appendix that I quoted to the Court, we explained to them we were going to make entry, appears on page 24.

Justice Samuel Alito: Right.

Ms Drake: So, if Your Honor keeps reading--

Justice Samuel Alito: It starts -- it says we knew that there was possibly something that was going to be destroyed inside the apartment.

At that point Detective Maynard -- this is after they heard the sounds, after they claim to have heard the sounds.

Ms Drake: --Yes.

Officer Cobb's testimony suggests that the demand came after they heard the sound of movement.

The finding by the trial court, however, is that this was all happening simultaneously and in very quick fashion.

Justice Samuel Alito: Is there any -- is there any evidence of that?

Did anybody else testify to what happened?

Ms Drake: No, Your Honor.

Officer Cobb's testimony was -- was all the Commonwealth offered.

But the chronology of the demand is not dispositive in this case because the demand itself is not dispositive.

The demand removes any doubt that the officers were not seeking a consensual encounter, but you still have the behavior of banging on the door.

Justice Samuel Alito: Well, does it -- does it turn on how loudly they knocked?

If they just knock on the door and say this is the police, is -- is that -- is there anything wrong with that?

Ms Drake: It -- it -- it depends entirely on whether a reasonable person would interpret that behavior as the officer conveying the impression that entry was imminent and inevitable, and this feeds back to Justice Scalia's question which is, well, what -- what is unreasonable about what the officers did here?

Justice Samuel Alito: What was there here to make a reasonable person believe that -- that entry was imminent and inevitable, if -- if all that's done is a knock on the door and they say police, police, police, this is the police?

Maybe it turns on how loudly they spoke or how loudly they -- they knocked, is that the point?

Ms Drake: That is the point.

Those are all relevant criteria because in every Fourth Amendment case we're considering the totality of the circumstances.

Chief Justice John G. Roberts: It seems to me that you're trying to change the case.

I mean, this is not a case where they come in and, in effect, demand entry.

My understanding is that the issue in the case is whether or not after a request for entry, they can then base probable cause and dispensing with the warrant based on what they hear from behind the door.

Now, I know you think whatever they hear is perfectly innocent; but the issue is whenever they knock on the door, "police", or "can we come in" or whatever, and then they hear that -- the activity behind the door, they have reason and can -- can enter.

Now, what you're -- it seems to me what you're arguing is well, they did something else.

They banged on the door, they yelled police; it wasn't simply knocking on the door and seeking entry.

And you may be right, again, on the facts, but it seems to me that's for -- for later on.

I want to know what your position is on whether they can assume, at least for me, they knock and say can we come in or knock and say police, no demand to get in.

Ms Drake: If I understand Your Honor's question, the officers are engaging in what we would call a true knock and talk.

They're seeking -- they're on -- the scenario is such that no one would doubt they're attempting a consensual encounter.

Our position is because that behavior is reasonable, it is not made unreasonable by the fact that evidence may be destroyed, and so suppression would not be the remedy.

But again--

Justice Stephen G. Breyer: So you agree that -- that the court below is wrong because what they say as I read it is irrespective of how reasonably the police behave, if it is reasonably foreseeable that their tactic will create exigent circumstances -- and I would think it's reasonably foreseeable when you knock on the door very politely and say "the police" that somebody might shout out "hide the pot", all right?

That if that's reasonable foreseeable, says the court, then that violates the Fourth Amendment.

But we have the Second Circuit that says as long as the police behaved unlawfully -- it -- lawfully, lawfully, it does not violate the Fourth Amendment; and we have the First Circuit that has some kind of bad faith test plus an unreasonable or improper test; and we have the Fourth and Eighth circuits that yet have some different kind of test.

And one of the things I would be interested in hearing your view on at some point is just what the Chief Justice said; that assuming from your point of view this is a hypothetical case, nonetheless we would like your view on which of those tests or some other test is the appropriate test and why.

That was the question he started with, and Justice Kennedy started with, and I also would be interested in your view on that.

Ms Drake: --The appropriate test is the test that we propose.

Under our test, the police act unreasonably when they convey the impression to an -- to a reasonable person that entry is imminent and inevitable.

Our test follows directly from the Fourth Amendment requirement that people in their homes deserve precision.

By conveying the impression that entry is imminent and inevitable, the police are -- and they don't have judicial authority for doing that; that is, there's no warrant -- they are engaging in behavior that would confuse an ordinary citizen and make him or her uncertain about whether the assertion of right to privacy and security in the home--

Justice Elena Kagan: Well, Ms. Drake if that's the case, in some way you're agreeing with the government.

You, too, are saying that -- that there's a lawfulness test.

You're just disagree about what's lawful.

Ms Drake: --And to the extent that lawful is defined as a synonym for unreasonable, and to the extent that there does not need to be a completed antecedent Fourth Amendment violation, we would agree.

There is area of agreement between the Commonwealth and I and it is on the issue of this knock and talk.

Of course, police officers need to have the investigative tool of a knock and talk.

There's nothing wrong with an officer attempting to gain consensual entry; and our position is that that's not made unreasonable by factors outside the officer's control, no matter how foreseeable.

Justice Samuel Alito: So what took this outside of the category of the ordinary knock and talk?

Ms Drake: This is not a knock and a -- knock and talk case, this is a knock and announce case or a knock and demand case, which is how the trial court characterized it.

And the staff--

Justice Samuel Alito: Well, I don't know about the labels, but what did they -- what did the police do that went beyond would be permitted under your understanding of a pure knock and talk?

It's -- it's the volume of the -- the knocking?

Ms Drake: --Yes, it's the -- it's the banging, not knocking.

It's announcement.

Justice Samuel Alito: Banging, not knocking?

Ms Drake: Banging, not a soft -- not the knock that you would expect a reasonable person to engage in, in the ordinary discourse with another person, or that you would expect from an officer attempting to gain consensual--

Justice Antonin Scalia: But I -- you -- you -- you might have considerable support on the Court for the proposition that if the exigent circumstance is created by unlawful activity by the police, which would include conveying the impression that they are about to kick the door in, then -- then you have a different case.

But -- but I thought the case we had before us is what if the police officers are behaving perfectly lawfully and they're not threatening to kick down the door, and they smelled the marijuana and then they hear the motion inside, does that justify their going in?

And that's what I thought we took the case for, and that's a different question.

You're trying to -- you're trying to make the police officers' actions unlawful, and I will stipulate that if their actions were unlawful you have a different case, and probably the evidence would have to be suppressed, but I didn't think we were here to decide that, whether they knocked too loud, whether they threatened to kick in the door.

The opinion below says if they created the exigent circumstances whether they did so lawfully or unlawfully, they cannot go in -- and that's, that's the issue.

Ms Drake: --What the officers did in this case is the functional equivalent of saying we're going to kick in the door.

Now, I wouldn't go that -- that far, but it -- it's the functional equivalent of a knock and announce, which is exactly the behavior the police engage in when they are executing a warrant; and it is that behavior that conveys the impression that an occupant has no authority to keep the officers at arm's length.

Justice Antonin Scalia: That wasn't the basis for the decision below, though.

The court below didn't say these police officers were behaving as though they had a warrant and were about to kick in the door.

The opinion below just said, yes, there were exigent circumstances, but they were the result of the police knocking on the door and saying we're the police.

Ms Drake: I don't disagree that the lower courts did not analyze the problem in this fashion, did not analyze the question in this fashion, but it's a legal question that calls for an examination of how a reasonable person would interpret the behavior, and so--

Justice Sonia Sotomayor: But what does that have to do with the -- the police officers' lawfulness?

Now, I -- I grant you that attempting -- that there is something troubling about the police attempting to coerce entry as opposed to requesting entry; but as my colleagues have pointed out, it's not clear from this record which of the two the police did, in a loud voice or not.

You're saying just a loud knock, a scream, "Police", that that would be coercive?

That's how I'm reading you.

Ms Drake: --I--

Justice Sonia Sotomayor: Or -- or are you going further and trying to say that as a matter of fact the testimony's critically clear that they knocked loudly, said "Police", and said let us in or we're going to bust it?

Ms Drake: --The factual record is clear.

The -- Officer Cobb testified he banged as loud as possible.

This is -- this not the normal knock that an officer engages in when he's seeking consensual -- consent, you know, consent to search, and this is at 10:00 at night.

He's saying we announced, police, police, police, exclamation point; that -- that's how it appears in the record.

Again--

Chief Justice John G. Roberts: So just assume for -- for my sake that the police comes to the door.

It's not 10:00 at night, it's you know, 6:00 at night, knocks quietly on the door, and says we're the police, can we talk?

And then there was the smell of marijuana.

And then he hears the sounds that do convey to a reasonable police officer that evidence is being destroyed.

At that point can they enter without a warrant?

Ms Drake: --Yes.

Chief Justice John G. Roberts: Okay.

Justice Stephen G. Breyer: But you said -- just add on to that.

Look, the question presented that they raised which of the five tests currently being used by the U.S. court of appeals is proper?

Now, you've said something about your view on that, but I would like you to say anything else you would like to say about that: Which of the five tests or some sixth test if you like, and you tell me the words that you like us to use when we answer that question.

Ms Drake: I would like this Court to adopt the test that we have proposed.

Justice Stephen G. Breyer: Which is?

Ms Drake: Which is that an officer acts unreasonably when he or she conveys the impression that entry into a home is imminent and--

Justice Stephen G. Breyer: No, no, no.

But the test you're using there, the key word there is unreasonable.

Ms Drake: --Yes, Your Honor.

Justice Stephen G. Breyer: Okay, and the reason you choose the word "unreasonable" rather than the Second Circuit's test of "unlawful" is?

Ms Drake: Because, frankly, I'm not sure what that means, and I think that's become clear in the context of this briefing.

Does unlawful mean the police have had to violate a provision of the penal code?

Does unlawful mean, as the Commonwealth is contending, that there has to be a completed Fourth Amendment violation?

Chief Justice John G. Roberts: You know -- you don't know what -- you don't know what unlawful means, but you know what unreasonable means?

Ms Drake: Yes.

Unreasonable is the touchstone of every you know, Fourth Amendment case, and so we're saying there does not have to be an antecedent completed Fourth Amendment violation.

The question is, as is the case in every Fourth Amendment case, did the officers act--

Justice Antonin Scalia: Do you have any doubt that it's unlawful for a police officer to threaten to burst into a home?

Ms Drake: --No, Your Honor.

Justice Antonin Scalia: So why do you need unreasonable?

If, indeed, there -- there was a threat of imminent entry, we're going to bust down the -- if that was the threat, then it's unlawful, surely.

Ms Drake: Yes, and that's why my answer to Justice Kagan's question was to the extent that unlawful and unreasonable are synonyms, we would agree.

Now, if the Court is not terribly -- does not find our test convincing, the next-best test, we believe, is a foreseeability test.

Justice Ruth Bader Ginsburg: If your test is something novel -- Justice Breyer mentioned there are some five tests in the different circuits, and the foreseeability test is the one that the Kentucky Supreme Court used, but is your -- does your test coincide with the tests of any other circuits or is it different?

Ms Drake: Our test is a novel test.

It has not been, to my knowledge, considered by any of the other circuits.

Justice Stephen G. Breyer: Your test, it's -- it's not wild.

It just says unreasonable in the Fourth Amendment.

Probably when they act lawfully, they are acting reasonably and not unreasonably, but it could be sometimes they're not.

That's your view?

Ms Drake: That's correct, and by the way--

Justice Stephen G. Breyer: No test.

All right.

Ms Drake: --We're not saying that -- we're essentially saying the police shouldn't act as though they have a warrant when they don't have one, which is exactly what they did in this case, and that proposition is not new.

In Bumper, this Court made clear that if the police act as though they have a warrant when they don't have one, any consent would be coerced.

So reviewing courts are already making these determinations about how loud was the knock and how aggressive was the demand, simply in another context.

By the other -- on the other hand, police officers are already receiving the same instruction that they would need in order to apply our rule, which is, don't act as though you have a warrant.

Don't engage in the functional equivalent of a knock and announce if you do not have prior judicial authority.

And what is appealing about our test, unlike the foreseeability test, which we believe it's a refinement of, is it allows for conduct by the police that's reasonable at its inception to remain reasonable regardless of the suspect's response, no matter how foreseeable.

Chief Justice John G. Roberts: What is -- what is an example of conduct that you would consider unreasonable resulting in suppression of the evidence that would not be unlawful?

Ms Drake: Well, it's very hard.

It's very hard to conceive of where the daylight would be--

Chief Justice John G. Roberts: Right.

Ms Drake: --between those terms, reasonable and unlawful, so long as unlawful doesn't mean violation of a penal code provision and so long as it doesn't mean, as the Commonwealth is suggesting, that there has to be -- that the defendant would have to first demonstrate that the police were seized in order to be able to convincingly argue that the search was unreasonable.

Chief Justice John G. Roberts: So you can't -- can't give me one example of some conduct that's unreasonable under your test that would not be unlawful?

Ms Drake: I can't -- I can't think of one, Your Honor.

Justice Antonin Scalia: The problem is that as reasonable as the test is, it's not the test that was used by the Court below, and you want us to affirm the decision below, which simply said if the exigent circumstances are -- are the consequence of the police action, whatever the police action was -- lawful, reasonable, whatever -- the evidence has to be excluded.

Now, how can we affirm that decision as you want us to do, even -- even applying your test?

Ms Drake: Well, the factual record in this case is fully developed, and how a reasonable person would interpret the scenario is a mixed question of law and fact, which -- this Court would review the decision of the Kentucky Supreme Court in that regard de novo anyway.

In that regard, it's no different than any other case that makes its way to this Court where this Court is asked to review the record, make a determination of how an ordinary person would interpret the officers' conduct.

It is simply unreasonable and unlawful for purposes of the Fourth Amendment for an officer to convey the impression that he has the authority of a warrant when he doesn't have one.

And when that prompts, as it obviously would, an occupant of a home to move, and then that movement is used as evidence that exigent circumstances exist and warrantless search is justified, if this Court were to, you know, adopt the framework the Commonwealth is arguing for, the exception to the warrant requirement would be the rule.

So we would ask this Court to affirm the decision of the Kentucky Supreme Court.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Farley, you have four minutes remaining.

REBUTTAL ARGUMENT OF JOSHUA D. FARLEY ON BEHALF OF THE PETITIONER

Mr. Farley: My time is short, so I would like to just make a few quick points.

I believe Mr. Chief Justice and Justice Kennedy were absolutely, absolutely correct.

The question before this Court is: Can lawful police action impermissibly create exigent circumstances?

And the answer to that question is no.

There is never a circumstance in which lawful police behavior under a Fourth Amendment analysis can impermissibly create an exigency.

I would point the Court to Hodari D., which I believe Justice Scalia wrote for the Court, that we should not punish police officers for attempted Fourth Amendment violations or Fourth Amendment violations that do not reach fruition, because it does not serve the point of the exclusionary rule.

Justice Elena Kagan: Mr. Farley, one of the points of the Fourth Amendment is to ensure that when people search your home, they have a warrant, and of course there are exceptions to that.

But if there is one place where the warrant requirement has real force, it's in the home.

And I think that the concern here, and you have some strong arguments on your side, but the concern here is that your test is going to enable the police to penetrate the home, to search the home, without a warrant, without going to see a magistrate, in a very wide variety of cases, that all the police really have to say is: We saw pot, we heard noise.

Or: We think there was some criminal activity going on for whatever reason and we heard noise.

How do you prevent that from happening?

How do you prevent your test from essentially eviscerating the warrant requirement in the context of the one place that the Fourth Amendment was most concerned about?

Mr. Farley: Well, Justice Kagan, I would disagree with you.

I don't think that it would.

I believe that what the Commonwealth is asking for is no more or no less than reviewing courts have done for generations.

You look to determine whether there was a Fourth Amendment violation, whether there was an unlawful entry, whether there was an unlawful seizure, or whether there was a coercion that then they gained consent for entry.

If those things occurred, they are clearly Fourth Amendment violations.

There should be a suppression of the evidence.

The exigent circumstances--

Justice Antonin Scalia: It wouldn't technically be a Fourth Amendment violation, would it, if the police gave the impression that they had a warrant and were about to kick in the door?

Is that a Fourth Amendment violation in and of itself?

Mr. Farley: --I don't believe so.

Justice Antonin Scalia: So your -- the -- the unlawfulness test would not prevent that?

Mr. Farley: No, Justice Scalia, it would not.

Justice Antonin Scalia: It would not?

Oh.

Maybe we have to come up with an unreasonable test, then.

Mr. Farley: I believe under Hodari D., if the officers demand entry and there has been no response to that demand, there has no -- been no completion of the Fourth Amendment violation.

The officers could stand outside the door--

Justice Antonin Scalia: Well, it'd be okay for officers to do that?

Pretend they have a warrant?

Open the door or we'll kick it in.

That's perfectly okay?

Mr. Farley: --I believe that there are -- there are large restrictions and prohibitions to that, that officers are well aware of, because if the person does answer the door, the officers know, well, everything is going to be suppressed.

Or it's--

Justice Antonin Scalia: Why, you say that what they've done is not lawful.

Why would it be suppressed?

Mr. Farley: --Well, if they demand entry and entry is given, that is then a Fourth Amendment violation, because they've demanded entry without a warrant.

And in that case, suppression -- once they have entry, the evidence would be suppressed.

Chief Justice John G. Roberts: They can't gain entry by deception.

They can't knock on the door and say, pizza, right?

Mr. Farley: No.

Chief Justice John G. Roberts: No?

No?

Okay.

Mr. Farley: We would just assert that under the lawfulness test, we aren't asking for anything more or less than this Court has done or other reviewing courts have done for generations, and this is a simple Fourth Amendment analysis.

There was no demand in this case.

This was a simple knock-and-announce case, regardless of the time of day.

There was no coercion.

There was no seizure.

There was no consent given.

Officers should not be held accountable for unlawful reactions by suspects.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

You will have noticed that Justice Kennedy left the bench a few minutes early.

He is going to Tucson to represent the Court as the circuit justice for the Ninth Circuit at the memorial service there.

He will review the tapes and transcripts of the rest of the argument and fully participate in the decision.

This case is submitted.

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Unknown Speaker: Justice Alito has the opinion of the Court this morning in Case 09-1272, Kentucky versus King.

He has asked that I announce it for him.

This case comes to us on the writ of certiorari to the Supreme Court of Kentucky.

In this case, police officers smelled marijuana outside an apartment door, knocked loudly, and announced their presence.

As soon as the officers began knocking, they heard noises that, in their view, indicated that the occupants were destroying drug-related evidence.

The officers entered the apartment without a warrant to prevent the destruction of evidence.

Respondent was convicted of drug-related offenses based on evidence that the officers found inside the apartment.

Now, it is well-established that the rule of exigent circumstances which includes the need to prevent destruction of evidence is an exception to the warrant requirement.

We do not decide whether exigent circumstances actually existed in this case.

We, like the Kentucky Supreme Court, assume that there was an exigency.

The question before us concerns an exception to the exigent circumstances rule that has been developed by lower courts.

Lower courts have held that when police create an exigency, the search is unconstitutional, even though an exigency existed.

This is known as the "police-created exigency" doctrine.

The Kentucky Supreme Court applied the police-created exigency doctrine in this case, overturning respondent's conviction.

Assuming there was an exigency, the Kentucky Supreme Court held that the exigent circumstances rule could not justify the search because the police should have foreseen that their conduct would prompt the occupants to destroy evidence.

In short, the Court held that the police had impermissibly created the exigency.

For the reason stated in our opinion, we reject this interpretation of the exigent circumstances rule.

The conduct of the police, prior to their entry into the apartment, was entirely lawful.

They banged on the door and announced their presence.

They did not violate the Fourth Amendment, nor did they threaten to violate the Fourth Amendment.

Under these circumstances, the officers' warrantless entry to prevent the destruction of evidence was reasonable.

We therefore reverse the judgment of the Kentucky Supreme Court and remand for further proceedings not inconsistent with this opinion.

Justice Ginsburg has filed a dissenting Opinion.