Exigent Circumstances

by Charles Gillingham

The United States Supreme Court recently addressed an issue under the exigent circumstance doctrine. When is a warrantless entry to prevent the destruction of evidence unlawful when the officers created the exigency?

Kentucky v. King

Officers were conducting a crack cocaine buy at an apartment complex in Lexington. The UC bought crack cocaine from a suspect. The suspect hurried toward one of the buildings in the complex. The officers got to that location a short time after and saw two apartments. The suspect had to have gone into one of the two apartments. The officers smelled a strong odor of marijuana coming from one of the apartments and decided to go to that door. As it turns out, the suspect went to the other apartment.


The officers went to the door that had the odor of marijuana coming from it and banged on the door. They announced their presence as police officers and as is often the case, heard movement inside the apartment that sounded like the occupants were going to destroy the drugs. The officers then told the occupants they were going to enter and kicked the door.


Three people were detained as the officers conducted a protective sweep. Marijuana and some cocaine was recovered. King was charged with possession of narcotics. A motion to suppress the evidence was heard and the evidence was suppressed.


In Kentucky, as in California, the court held that an exigent circumstance entry is legal provided that the officers do not create their own exigency. Creating the exigency by the police was generally defined as the officers having probable cause to believe there was evidence present, announced presence, and the officer knew or reasonably should have known that the announcement would lead the suspects to destroy the evidence.

The Kentucky court suppressed the evidence even though the officers had a reason to believe the suspects were going to destroy evidence. The Kentucky Court held that the occupants were only attempting to flush the dope because the officers went to the door and announced their presence.


The U.S. Supreme Court reversed and set forth a new rule. The USSC held that an exigent circumstance entry is unlawful only when the officers threaten or announce their intent to enter and that entry would violate the Fourth Amendment.

The USSC narrowed the rule of police creating their own exigency. Merely knocking and announcing your presence is not a threat of an unlawful entry. If officers merely knock and announce their presence and the people inside a residence begin destroying evidence, an exigent circumstance entry will be lawful.


Chuck Gillingham is a veteran prosecutor. He is also an instructor for the California District Attorneys' Association and for Santa Clara University School of Law. Please consult with your own legal counsel for precise guidance before applying any of the techniques or suggestions in this article