Thursday, February 16, 2012
Grant T. Herrin has posted Fear and Loathing in the American Home: Police-Created Exigency Doctrine No Longer a Check on Police Power Under Fourth Amendment on SSRN. Here is the abstract:
The Court’s decision in Kentucky v. King, 131 S. Ct. 1849, was many years in the making, necessitated by a need to resolve an increasing discrepancy between various state high courts and the U.S. Courts of Appeals. Specifically, the courts have disagreed in their application of the “police-created exigency doctrine” as an override of the exigent circumstances exceptions to warrantless searches and seizures. While the Supreme Court’s holding in King that “warrantless entry to prevent the destruction of evidence is allowed where police do not create the exigency through actual or threatened Fourth Amendment violation” seems at first comforting and even logical, its implications are anything but reassuring. Indeed, the authority of the police (now given more freedom from the Fourth Amendment) conjures images of Nazi storm troopers breaking down the doors of downtrodden citizens of the police-state. In fact, the Court’s extension of discretion to individual police officers contracts the authority, and even the necessity, of a neutral magistrate to the extent that warrants are not even required if the officer so reasons at the time of his entry. That is not an issue as long as the police acted “reasonably” up to the point they broke down your door.