CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, February 20, 2014

Stamm on Evidence Destruction after Kentucky v. King

Claire Stamm has posted Defining the Destruction of Evidence Exigency Exception: Why Courts Should Adopt a Strict Probable Cause Standard in the Wake of Kentucky v. King (Mississippi Law Journal, Vol. 82, No. 7, 2013) on SSRN. Here is the abstract:

The Fourth Amendment exigency exception allows law enforcement to enter a building without a warrant due to an exigent circumstance. Exigent circumstances range from threats to public safety to the destruction of evidence. Post Kentucky v. King, courts can no longer consider the subjective intent of the officer to create or not create an exigency. Therefore, courts need a clear way to define a destruction of evidence exigency. This comment presents a double probable clause test to objectively and effectively define a destruction of evidence exigency. Since a destruction of evidence exigency falls under the broader category of an evidence gathering exigency, it does not offer a threat to public safety. Therefore, the quantum of suspicion for a destruction of evidence exigency should be higher to ensure the protection and privacy of the innocent and to ensure no abuse of the exigency. 

The new test requires probable cause that drugs are present and probable cause plus articulable facts that drugs are in imminent danger of destruction.

The test also requires a sweep and seizure of the premises while officers obtain a warrant. The seizure eliminates the exigency and is also the least intrusive and simplest response to the imminent destruction of drugs. This new approach to the destruction of drugs exigency exception stays within the jurisprudence of the Fourth Amendment, presents the well-established and widely used standard of probable cause, ensures concord among different jurisdictions, and ensures the protection and privacy of the innocent.

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