By Pettry, Michael T.
The FBI Law Enforcement Bulletin , Vol. 81, No. 3
On a daily basis, law enforcement officers face situations requiring them to make split-second decisions under tense, uncertain, and often chaotic circumstances. Fortunately, courts, recognizing the realities of modern policing, have provided officers with the legal guidance they need to deal with myriad situations and also have ensured the protection of individual liberties. However, one issue that lacks a clear consensus is when and under what circumstances police are permitted to rely upon the exigent circumstances exception to the Fourth Amendment's warrant requirement when their actions may have caused the exigency.
In its 2010 term, the Supreme Court in Kentucky v. King addressed this issue and in doing so provided law enforcement officers with clear guidance as to how they properly can handle some of the most important issues they confront every day.(1) This article will examine the legal issues implicated by the holding in King, lower courts' previous treatment of this issue, and an explanation of the legal standard the Court set forth for officers confronted with situations requiring immediate entry into areas protected by the Fourth Amendment.
The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable 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."(2) Thus, the text of the amendment offers two distinct requirements regarding searches: 1) they must be reasonable and 2) a warrant may not be issued unless probable cause is established and the scope of the search is specified with particularity. Although the amendment does not specifically state when and under what circumstances a warrant must be obtained, the Supreme Court has indicated that "searches and seizures inside a home without a warrant are presumptively unreasonable." (3)
Exigent Circumstances Exception
In spite of the presumption that a police officer's entry into a home without a warrant is unlawful, both state and federal courts have carved out a number of exceptions to this general rule. Included among the judicially recognized exceptions to the Fourth Amendment's warrant requirement is the exigent circumstances exception. The U.S. Court of Appeals for the First Circuit in United States v. Rengifo indicated that "[e]xigent circumstances occur when a reasonable officer could believe that to delay acting to obtain a warrant would, in ail likelihood, permanently frustrate an important police objective, such as to prevent the destruction of evidence relating to criminal activity or to secure an arrest before a suspect can commit further serious harm."(4)
Police-Created Exigency Doctrine
Although the Supreme Court recently had provided clear guidance to law enforcement officers regarding the circumstances under which they could make a warrant less entry of a dwelling to render emergency aid, it had yet to address the specific issue of whether the exigent circumstances exception to the Fourth Amendment's warrant requirement applies when police officers' actions cause the exigency.(5) Under this so-called police-created exigency doctrine, a number of lower courts had held that officers could not rely upon this exception if they had created the very exigency which they sought to use to justify acting without a warrant.(6) Other courts did not find a Fourth Amendment violation simply on the grounds that officers created the exigency.(7)
Given the context in which the issue may arise, this left law enforcement in a difficult predicament given the unsettled nature of the law. The Supreme Court's decision in King provides welcome clarification of the circumstances under which law enforcement is permitted to rely upon the exigent circumstances exception. …