Justice Holmes famously declared in The Common Law that “the life of the law has not been logic; it has been experience.“ Justice Alito, in his majority opinion in Kentucky v. King would appear to agree with Justice Holmes, with an added proviso. Justice Alito, like Holmes, emphasizes experience. In emphasizing experience, the majority opinion focuses not on the experience of the private individual subject to searches, but on the experience of police who must respond to the myriad factual situations they daily confront without time to engage in fine-grained legal analysis of where the limits of the Fourth Amendment reside. But, in so doing, the opinion jettisons logic altogether, producing a rule at odds with itself, at least when viewed from the perspective of the rights-holder rather than that of the potential rights-violator.
In what follows, I will briefly sketch why.
1. The Court provides the following rule to govern the case: “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.” The alternative rule—the one that I think would be a more reasonable account of Fourth Amendment limitations on state power—is stated and rejected as “unreasonable”: “[A] rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.” If the latter would “unreasonably shrink” an “exception,” already something of an odd construction, then what would count as a violation of the Court’s rule? (And to register the oddity of worrying about shrinking an exception, is not the burden usually on the “exception” to justify its reach, after all the rule is supposed to be the norm, and the exception the abnormal—or is the fact that the Court is worried about protecting the exception against “unreasonable” applications of the rule mean that the rule and exception are now really in an inverse relation?). How would the police ever engage in or threaten to engage in a violation of the Fourth Amendment under circumstances that would lead to a warrantless, forcible entry, especially during a narcotics investigation?
Let’s posit that warrantless, non-exigent, forcible entry after knocking and loudly proclaiming “police, police, police” would count as a violation of the Fourth Amendment. Let’s dispense with another possible scenario: if police failed to knock and announce, with or without a warrant, and forcibly entered, then there would also be a Fourth Amendment violation. But, this situation could not be a police-created exigency since there was no announcement of their presence through which they could be “engaging or threatening to engage” in lawless conduct. This conduct is simply kicking in a door, and therefore another clear Fourth Amendment violation. So knocking and announcing is a necessary condition for police created exigency. But once police presence is announced, especially in a drug case, are there any practical circumstances under the Court’s rule that will count as a Fourth Amendment violation? Is there any circumstance in which the police-created exigency (where exigency need be no more than police fear that “evidence” might be destroyed) will not count as an exigency justifying warrantless entry? The short answer is: No.