The Constitution protects each of us from unreasonable searches and seizures. Police officers may not enter our homes without a warrant issued by a neutral magistrate on a showing of probable cause. This procedural safeguard may be overlooked, however, when exigent circumstances arise and make a warrantless search reasonable. Exigent circumstances include emergency, hot pursuit, and destruction of evidence. An exception to the exigent circumstances rule precludes its use to justify a warrantless search when the officers themselves created the exigency.
While courts agree that police-created exigencies do not fall within the exigent circumstances rule, lower federal and state courts have developed a number of tests to determine in what circumstances and in what sense police impermissibly create an exigency. Some factors the courts consider include the subjective intentions of the officers, the opportunity to obtain a warrant, the reasonableness of the investigative tactics, whether police actions violated any laws, and the degree to which it was foreseeable that their actions would create an exigency.
The Supreme Court settled a circuit split on exigent circumstances cases in Kentucky v. King, holding that “the exigent circumstances rule applies when the police do not gain entry to the premises by means of an actual or threatened violation of the Fourth Amendment.” This decision will significantly impact claims brought under the Federal Constitution. The King test makes it more difficult for courts to invalidate those warrantless searches justified by the exigent circumstances rule. Fewer searches will be found unreasonable in post-hoc evaluations. Police in the field will have the discretion to enter a home without a warrant whenever they suspect that evidence is being destroyed, regardless of whether their conduct effectively led to the exigency, unless they violated the Fourth Amendment before the exigency arose.
This Note will focus on the proper test for determining when law enforcement agents impermissibly create exigent circumstances.
