......Just ask defense attorneys

By Valerie Van Brocklin
www.valvanbrocklin.com

In an article titled Training Cops to Lie – PT 1 [web link below, first published on www.officer.com], I intended to begin a series on the legal and ethical parameters of police deception in investigating criminal activity.

In the melee of comments generated by that article, some readers expressed outrage about any police deception. That this would mean the elimination of all undercover activity to investigate drug trafficking, child prostitution or pornography, terrorism, or any other criminal activity engaged in secretly was not discussed by these outraged readers – but other readers noted the point.

One rationale of the outraged readers was that the Criminal Justice System, including trial, is a search for the truth and that any deception employed during that search would subvert the entire process 

Before I can proceed with my intended series some misperceptions might need to be cleared up.

A criminal trial is not about the truth … just ask defense attorneys and the courts.

A web site to help criminal defense attorneys with jury instructions asserts,

“It is important for the jury instructions to assure the jurors understand that. . . the question in a criminal case is not whether the defendant committed the acts of which he is accused. …In other words, the instructions should avoid language that perpetuates the juror’s intuitive inclination to make the trial a search for the truth.” [Web link below.]

The issue, according to defense attorneys, is whether the prosecution has proven the elements of the crime(s) charged beyond a reasonable doubt.

As a former state and federal prosecutor, I do not disagree that is the issue under the current rules of our criminal justice system. And defense attorneys do not want that system to even suggest to jurors that the trial or their job has anything to do with seeking, finding or determining the truth.

Moreover, some courts are agreeing that any suggestion to jurors that a criminal trial is about the truth is improper. [See web link to Second Circuit ruling, which joins other courts.]

A criminal trial is not about the truth … according to the Rules.

A story I heard long enough ago that I can’t attribute it aptly demonstrates one of the dilemmas officers face. It goes like this.

A retired officer is called to testify in a case he’d investigated before he retired. The clerk administers the oath,

“Do you swear to tell the truth, the whole truth and nothing but the truth?”

Standing with his right hand raised in solemn dignity, the officer pauses thoughtfully, then replies,

“No.”

This gets everyone’s attention. The Judge clears her throat and says,

“Excuse me, Officer, perhaps I misunderstood. What did you say?”

The retired officer replies,

“With all due respect, Your Honor, I’ve never been allowed to tell the whole truth in a criminal case before. Have the rules changed?”

The rules haven’t changed. Most officers know that the Rules of Evidence prohibit them from telling the whole truth and if they were to tell the whole truth, even inadvertently, the Judge might declare a mistrial. 

Most police officers also know that they are expected to swear to tell the whole truth anyway. And so we see a reader commenting to Training Cops to Lie – PT 2 [web link below] that every time he or she swears to tell the whole truth, he or she is lying – and the system not only expects but demands this.

What are some of these rules? There’s Federal Evidence Rule 404(b), which most states have adopted in very similar form. It provides that jurors are prohibited from hearing about any other bad acts or conduct of the defendant other than those for which he is on trial. There are exceptions but the prosecutor has to brief the matter beforehand and have the judge rule on it.

This means a jury doesn’t get to know the defendant was out on parole following a kidnapping, torture and rape conviction in a subsequent trial for child sexual abuse.

It also means that if a defense attorney suggests on cross examination that it was unfair of the arresting officer to not allow the defendant to practice the Field Sobriety Tests even once before deciding he’d failed them and putting the defendant in jail given that the officer got to practice administering the tests numerous times before the officer was tested, the officer may not truthfully reply that the defendant practiced at least twice when he was previously arrested and convicted of drunk driving.

Another rule is the exclusionary rule. Established by the Supreme Court in Weeks v. United States [web link below] it was intended to deter police misconduct by holding that evidence seized in violation of the Constitution is inadmissible at trial. The Court subsequently made the rule binding on the states in Mapp v. Ohio [web link below]. 

Deterring police misconduct is a good thing. While some argued there were other means for doing that rather than giving a criminal defendant a windfall of suppressing relevant, truthful incriminating evidence (civil lawsuits, job actions, etc.), the Supreme Court decided such deterrence was worth sacrificing the truth.

In United States v. Leon [web link below], however, the Supreme Court decided the exclusionary rule was being used by defense attorneys in a way the Court never intended after a U.S. District Court suppressed drugs found in Leon’s apartment pursuant to a warrant. Another judge subsequently ruled the issuing magistrate had made an error. There was no suggestion of police misconduct.

The Supreme Court could find little benefit in applying the exclusionary rule where there has been good-faith police reliance on an invalid warrant. "The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." The Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates with whom a higher judge later disagrees.

The good faith exception makes good sense. But, unlike the exclusionary rule, the Supreme Court has not made it applicable to the states.

This means that in states that have not adopted the good faith exception, such as Alaska when this author was a state prosecutor there, police can do everything right in the investigation, obtain a warrant, and, if a trial judge later disagrees with the magistrate’s finding of probable cause, all of the relevant, truthful evidence seized pursuant to that warrant is suppressed.

Permit two points regarding this last suppression of the truth:

• Magistrates and judges are lawyers and you can’t get two lawyers to agree to kill a rat in bath tub. Why do you think the Supreme Court, confronted with the same facts and case law and lots of time and briefings and arguments of counsel, disagrees 5 to 4 on matters that officers may have only moments to decide?
• What police misconduct is deterred in this instance? Obtaining a warrant from a neutral magistrate?

It is not the intent of this article to take issue with defense attorneys and the Rules of the Criminal Justice System and court decisions that insist a criminal trial is not about the truth, although the author encourages readers to do just that. (Okay, I admit taking issue with states not adopting a good faith exception to the exclusionary rule)

Rather, the intent is to disavow misperceptions that a criminal trial in our justice system as it now stands is intended to determine the truth of whether a defendant committed the crimes charged.

Next …

Stay tuned as we return to the legal and ethical parameters of police deception in a future article titled If Courts Clash on Police Deception – What’s a Cop Supposed to Do?  Unlike one reader’s comment to Training Cops to Lie – PT 2 that anything goes on the street as long as you tell the truth in the courtroom, it’s much more complicated. Officers need to understand the ethical and legal parameters and the possible attendant consequences to using deception to investigate criminal activity.

What is considered legal can depend as much on the jurisdiction in which you investigate crime as it can on the investigative tactics used. And what is considered ethical can depend on whose ox is being gored.

Training Cops to Lie – PT 1: The tangled web of police deception, http://www.officer.com/web/online/Investigation/Training-Cops-to-Lie---Pt-1/18$49343

Challenging Standard Pattern Instructions Which Define The Trial In Terms Of "Seeking The Truth," http://www.juryinstruction.com/article_section/articles/article_archive/article51.htm

Second Circuit Rejects Jury Instructions That Define the Jury's Role in a Criminal Case as a Quest for Truth,

htp://www.uslaw.com/library/Legal_Commentary/Second_Circuit_Issues_Important_Ruling_Rejecting_Jury_Instructions_Def.php?item=7

Training Cops to Lie – PT 2 OR Parameters of Police Deception, http://www.officer.com/web/online/Investigation/Training-Cops-to-Lie--Pt-2/18$49853

Weeks v. United States, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=232&invol=383

Mapp v. Ohio, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=367&invol=643

United States v. Leon, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=468&invol=897

Described by Calibre Press as "the indisputable master of enter-train-ment," Val Van Brocklin is a trainer and author. She combines a dynamic presentation style with over 10 years experience as a state and federal prosecutor where her trial work received national media attention on ABC's Primetime Live, the Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK. In addition to her personal appearances, she appears on television, radio, and webcasts, in newspapers, journal articles and books. Val is a regular contributor to officer.com and lawofficer.com and her writing has also been featured in the Calibre Press Online Street Survival Newsletter, Police Chief magazine, The Law Enforcement Trainer magazine, Integrity Talk magazine, Outdoor magazines and books. When she’s not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Visit her at her website: www.valvanbrocklin.com.

 

  

By  John Reid & Associates

A guideline we teach during our seminars is that the first person interviewed during an investigation should be the individual who reported the crime. The primary reason for this is because that person often can provide the most accurate investigative information surrounding the crime. Consider a homeowner who reports that someone entered his home and stole jewelry from a bedroom. The investigator needs to establish that the jewelry actually existed, when the jewelry was last seen, who has keys to the home or knowledge of an entry code, whether doors are always locked, which acquaintances knew where the jewelry was kept, etc. As with any interview, the investigator must keep in mind that the person who reported the crime may lie about these details. In fact, in a significant number of our investigations, the person who reported a crime also turns out to be the perpetrator of the crime.

The most common circumstance where the reporter of a crime is also the perpetrator occurs when the reporter has the best opportunity and means to commit the crime. Under this circumstance the suspect reports his own crime because it would be suspicious not to. In other words, the suspect would logically have been the first person to discover the crime. This may involve the husband who claims that he returned home from work and found his wife stabbed to death, the individual who reports that his car was stolen from an apartment parking lot or the individual who reports unauthorized charges on his latest credit card statement. A contributing motivation to report one's own crime is the belief that by reporting the crime the person will escape scrutiny or even consideration as a possible suspect in the crime. The following case, involving a teller who stole $1000 from his cash drawer to pay expenses related to renting an apartment, is typical of a guilty person who reports his own crime:

At the end of the day the teller reported a $1000 shortage to his supervisor. He reported his own theft because he knew it would have eventually been discovered by auditors and he would then have to face tough questions about why he failed to discover a $1000 discrepancy in his funds. During his Behavior Analysis Interview he denied having any suspicions as to who may have stolen the money. In fact, he denied the probability that his shortage was the result of employee theft. Rather, he suggested the possibility that a customer may have reached over the counter and grabbed the money or that he may have mistakenly given a customer too much money. The teller openly acknowledged violating bank procedures by failing to keep his cash drawer locked and also leaving it unattended for a period of time. He also volunteered the fact that he did not verify straps of money he received from the main vault.

There are a number of characteristics of this interview that are typical of many guilty suspects who report their own crime. One of these is that the suspect failed to name a particular person as someone he suspects may be guilty of the crime. To do so would require pointing a finger at someone he knows is innocent. Rather, these suspects will often suggest unrealistic explanations for the commission of the crime. In this regard, it is not uncommon for the suspect to acknowledge the possibility that he may be inadvertently responsible for the act. This might include careless use of smoking materials in an arson, accidentally throwing away a deposit in a theft or causing a spouse's despondency which resulted in an apparent suicide when, in fact, the suspect staged the suicide. By accepting (non-criminal) responsibility for an act the guilty suspect relieves a great deal of anxiety associated with his crime because he is telling part of the truth. Finally, these suspects often acknowledge sloppy security procedures in connection to the crime (not verifying money straps, leaving house doors unlocked, loaning keys to unauthorized personnel) . By doing so, they open up the investigation by providing access to individuals who normally would not have the means to commit the crime.

Another variation of crimes reported by the perpetrator involves delayed reporting of an on-going crime. A manager at a savings and loan was embezzling funds from customer's loan payments. After stealing almost $25,000 over a six-month period of time he reported the embezzlement and initiated the investigation. His reporting of the thefts coincided with the departure of an employee in the loan department who recently resigned to spend time with her children. Going into the investigation we certainly believed that she was the prime suspect. However, the first person we interviewed was the manager and his behavior clearly reflected deception. After a relatively short interrogation he confessed. In his confession he stated that he was concerned that the embezzlement would be detected in an up-coming audit and saw an opportunity to divert suspicion from himself by reporting the embezzlement shortly after the loan department employee resigned.

The most common motivation for a suspect to report his own on-going crime is a fear that he will be caught in the near future. A typical case is the drug dealer who comes forward to report drug sales in his neighborhood. By doing so he is hoping to diffuse allegations buyers will make against him once they are arrested. A parallel situation exists in a sexual harassment case where the harassing supervisor files a complaint against the complainant, again in an effort to negate that person's credibility. It is human nature to believe the first person who comes forward. The investigator needs to recognize this possible underlying motive especially when the reporter is later implicated in criminal behavior. A revealing question to ask during the interview in these cases is, "Why did you decide to report this now?" Often the deceptive suspect cannot identify a credible cause and effect relationship explaining his decision to report the crime.

The final variation of the guilty person reporting his own crime is the most rare. In this circumstance the perpetrator intended to flee after committing the crime, but someone discovers him at the crime scene. We will call this second person the discoverer. Under this circumstance, the perpetrator may decide to run and hope that the discoverer cannot identify him. If that is not a viable option, he may turn to the discoverer and report the crime. Possible examples include homicide, arson or criminal damage to property. We have also worked cases where the perpetrator was caught during the commission of his crime, e.g., stealing merchandise from a warehouse or using illegal drugs at work. Regardless of the circumstance, as soon as the perpetrator realizes that he has been seen, he turns to the discoverer and says, "Call 911, the apartment building is on fire," or, "Gee, it smells like someone's been smoking marijuana in here." Such a portrayal of implied innocence by reporting the offense is often effective at diverting attention away from the perpetrator. In fact, many of these cases are solved only after an investigator has eliminated a number of possible innocent suspects and then goes back to conduct a formal interview of the reporter. When a crime is committed in an unpopulated or private area it is unusual to have one person discover the crime shortly after its commission. To have two independent people make this claim is highly improbable.

A thorough interview of the discoverer may also provide meaningful information. The investigator should keep in mind that a suspect who has just narrowly escaped being caught committing a crime will typically appear overly anxious and nervous to the discoverer. Being in this frame of mind, the reporter's answers to initial questions asked by the discoverer may be inconsistent or quite vague. In addition, the reporter may ask inappropriate questions of the discoverer such as, "How long have you been standing there?" or, "What did you see?" An investigator should take advantage of the discoverer's recollections of the reporter. In particular, the discoverer should be asked questions about the reporter's demeanor and appearance, e.g., frightened, guarded, quiet, out-of-breath, flushed, perspiring, etc. The conversation between the reporter and discoverer should also be explored. The investigator may learn that the reporter offered the discoverer a completely different explanation for his presence at the crime scene than what the reporter later told the responding officer.

In conclusion, when an investigator interviews the person who reports a crime, there is a tendency to afford that person instant credibility because he came forward to report a crime. This credibility is probably warranted when the reporter could have just as easily not picked up the phone and hoped that someone else would call the police. However, when the reporter of the crime has immediate access and opportunity to commit it the investigator must maintain a high index of suspicion to identify possible behavior symptoms of deception. To accomplish this, the reporter of a crime should be interviewed in a private and controlled environment. Most importantly, the interview should incorporate behavior provoking questions to elicit behavior symptoms of truth or deception.

   

By Steven Mosley
www.combathard.com &
Gregg Swanson
www.warriormindcoach.com

Before we get into the discussion of mental training for ferocious resolve I’d like to set a common definition so that we can all agree on what is intended.

According to Dictionary.com:

Ferocious – “savagely fierce, as a wild beast”

Resolve – “to come to a determination; make up one's mind”

So I think we could agree that ‘ferocious resolve’ “Committed to act like a wild beast.”  The animal kingdom is ripe with examples, but perhaps the most stunning example of this is the mamma bear and her cub.  The manner in which she will protect her cub, going so far as to give her life to save her cub’s…that’s ferocious resolve!

So what’s a mamma bear got to do with law enforcement?

Everything!

You see when you use ferocious resolve you are not only using the physical, i.e. savagely fierce, as a wild beast but also the mental, i.e. make up one's mind.  This is the mind-body connection we hear so much about.

This is the warrior mindset that MUST be developed to win an all-out battle against another human aggressor. These conflicts are often sudden, extremely violent and can be relentless until one of the parties is incapacitated, or to put it bluntly, DEAD! You want to make sure your looking at the gurney or body bag from the outside: developing the mental strength characteristic of ferocious resolve is crucial to your survival and the survival of your partner(s).

 So, what really is ferocious resolve? Besides our definition at the beginning of this article we can say that ferocious resolve is a “state.”  One NLP (Neuro Linguistic Programming) reference says this about state:

“State - The set of specific values in a person's physiology, neurology and biochemistry that gives rise to their behavioral expression and their subjective experience of themselves and the world in any given moment.”

I know…WTF!

OK how about this: “STATE - The total ongoing mental and physical conditions from which a person is acting. “

 Simply stated, your state is everything that is going on in your body and mind at any particular moment in time. A few examples of state might be happiness, fear, worry, boredom and alertness; each one is a mode, if you will, of being, encompassing the physical and mental aspects of your existence.

 It is critical for you to learn how to train and properly manage your state before, during, and after an assault. You need the ability to function in the chaos and dissipate the energy in a healthy way after the conflict.  

Part of your training will be to answer the question, “What will I fight for” and then “What will I die for?”  These are questions that MUST be answered BEFORE any altercation. This way you know exactly how far to push the ‘ferocious resolve’ accelerator.  

 Here is an awesome quote from the father of Combatives:

"When you're caught, you're down, and you're a goner if you don't ATTACK...And keep in mind, it's 'Gutterfighting': any means, fair or foul, to save your life". -- W.E. Fairbairn

 Some people refer to ferocious resolve as the "Eye of the Tiger" or as Tom Petty sings “No, I won’t back down.” We like to think of it as your ability to do whatever it takes to win.  The presupposition here is that in order win you first must survive, but in the end you need to WIN!

If you come face to face with an assailant, you must have the programmed warrior mindset of going until the assailant, surrenders, is beaten down and no longer poses a threat.  This is that “savagely fierce, as a wild beast” combined with the mindset (or state) to neutralize the aslant for the safety of all involved.  

 As my good friend, Gary Klugiewicz says, "Be nice, until it is time to be mean, and then be nice again." These are wonderful words to live by. Once the threat is neutralized, calmly seek a protective position, perform a self medical assessment, and call for any assistance required.

OK…up to this point fairly straight up right?

 But now the question comes, “How exactly do I train and develop this warrior mindset?”

 Mental strength, like physical strength, it takes a decision, practice and consistent action.  These will be driven by your will to live, the decision to do what must be done, and the diligence to practice so that your mind is set! Unfortunately, this type of mental training is not usually taught in most peace keeping and law enforcement facilities, this is way we’ve started a program on how to develop the mindset of ferocious resolve.

 Some people already possess an active, strong survival instinct, or a will to live. Nevertheless, it is latent in all of us, no matter how deeply buried, and can be developed through practice, by our very nature; we have that “animal instinct.”  

 I have an exercise for you….imagine you’re a civilian or even off duty, and for whatever reason your guard is down.  Let’s begin with a maneuver that is familiar to you. For example, let us focus on a front choke attack…forget about how you got into this predicament, just go along with it.  Close your eyes…first read this, then go back and do the exercise…if you close your eyes now you won’t be able to read the exercise.  To continue…imagine a strong adversary putting his hands around your throat. Feel his vice-like grip squeezing and compressing. Feel yourself getting a little dizzy from the lack of air. Does this enrage you to the point of igniting into explosive action--it should! Smell him. Imagine his appearance and his facial expressions.

 What is he saying, or what sounds does he make? Notice the energy welling up inside you. This is a deep primal energy propelling you to stop this senseless act and to neutralize this person. He has no right to end your life. You are completely justified in your use of force because, obviously, he is intent on hurting you; otherwise he never would have attacked you. Once you feel the state of anger (how it feels in your body and your mental representation), I want you to imagine yourself exploding into action. Imagine yourself releasing his grasp on you. See, if you can, and feel your body moving from a first-person perspective.

 Imagine yourself pounding him violently with a hammer fist, a palm heel, or whatever you desire to use. Imagine him shrinking away or falling down from your powerful and ferocious onslaught. Remember that he brought you to this dance; he chose you and made the conscious decision to attack you. Imagine yourself feeling no pity, but righteous rage until the moment he is no longer a threat. At that critical moment, when he is neutralized, imagine backing off, finding a protective position, scanning for additional threats, performing a self medical check and phoning the authorities. Allow yourself to feel good about being able to protect yourself. If you are inclined, you can continue imagining the scenario to the point at which the authorities arrive, you articulate the event with confidence and clarity, and you are released. Imagine being back at home, drinking an adult beverage, and relaxing in your recliner!

 The above example is just one exercise; a guided imaginative tour on solving a problem and a great way to begin developing the mindset of ferocious resolve. The beauty of this scenario, or any that you create, is that it can be practiced anywhere. Inform your imagination as much as possible with real-life details. The late Charles Nelson, a fantastic self-defense instructor, made a habit of collecting news clippings about violent crime and used the details as teaching points for his students. Involve all of your senses to paint the entire picture of state.

 The more senses you involve, the more real it feels to your mind as an experience. Many law enforcement officers have won in lethal encounters because of options and scenarios they considered prior to the event. For that matter, many people win in life's events because they have rehearsed their performance beforehand. Never underestimate the power of your imagination to accomplish anything. Too many of us get rusty-as children we are often conditioned out of utilizing the creative facility of imagination. Begin your practice now; hone and utilize these mental constructs towards development of your own ferocious resolve. If you ever find yourself in a critical situation that endangers your life, I want you to win, because your life truly matters.

 The tricky thing about visualization and ferocious resolve you want be centered and assertive, not going wild and out of control.  You’ll want to practice “live” first by using peripheral vision to center yourself and see the entire situation.  Once you achieve that combine that with tactical breathing, then add the energy of ferocious resolve.  Finally anchor all of that into a picture, color, word, phrase or even and body jester. 

Then when you visualize you can “trigger” all the aspects so that your body will respond automatically.  We’ll cover all this parts in future articles and we go over them in detail in our workshop.      

There are many great books out there that provide information on this they of mental training.  One is “Warrior Mindset” by Michael Askens., Lt. Col. Dave Grossman and Loren Christensen.  Another one is “Meditation on Violence” by Sgt. Rory Miller, as well as “No Second Chance” by Mark Hatmaker. We can promise you, if you can’t make one our workshops, invest a few short weeks digging deep inside these books. There’re goldmines of mental training techniques and processes that will help you will learn how to and develop and use ferocious resolve.

Steven Mosley is currently employed by the federal government as a supervisory law enforcement officer and has over 27 years of law enforcement experience.  Steve is also the Director of Training for the Combat Hard Training Center.  www.combathard.com. Steve can be contacted at combathard@gmail.com

Gregg Swanson is a certified NLP Practitioner, Personal Coach and Mental Skills Coach.  Gregg can be contacted at coach@warriormindcoach.com or visit his website at www.warriormindcoach.com. 

Reprinted from  WWW.PATC.COM

U.S. SUPREME COURT CLARIFIES DESTRUCTION OF EVIDENCE EXIGENCY

May 2011
by Jack Ryan, Attorney

©2011 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com) Kentucky v. King, U.S. Supreme Court, May 16, 2011

Law Enforcement does not violate the Fourth Amendment simply by creating exigency. Exigency which violates the Fourth Amendment occurs only when the conduct creating the exigency also violates the Constitution.

Kentucky v. King, slip op. 09-1272, 2011 U.S. LEXIS 3541 (May 16, 2011)

In Kentucky v. King, the United States Supreme Court considered the task often faced by law enforcement officers as to when it is proper under the Fourth Amendment for officers to make a warrantless entry into a home to prevent the destruction of evidence.  At issue in the case was whether the conduct of law enforcement created the exigent circumstance so as to make the entry unreasonable. Thus, the decision diagrams for law enforcement when conduct by law enforcement creates unconstitutional exigency versus what conduct makes reasonable exigency. The Court outlined the facts of the case as follows:

This case concerns the search of an apartment in Lexington, Kentucky. Police officers set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After the deal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the officers that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to "hurry up and get there" before the suspect entered an apartment. App. 20.

In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana.

At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door "as loud as [they] could" and announced, "'This is the police'" or "'Police, police, police.'" Id., at 22-23. Cobb said that "[a]s soon as [the officers] started banging on the door," they "could hear people inside moving," and "[i]t sounded as [though] things were being moved inside the apartment." Id., at 24. These noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.

At that point, the officers announced that they "were going to make entry inside the apartment." Ibid. Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent's girlfriend, and a guest who was smoking marijuana. The officers performed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.

It is noted that the prosecution conceded that King had standing (a privacy interest) in the apartment since his girlfriend, with whom he had a child, leased the apartment and he stayed there part of the time.

The Supreme Court of Kentucky invalidated the search using a subjective test with respect to the creation of exigency by officers.  Although that court did not find bad faith on the part of the officers it essentially held that when officers knock on the door it is reasonably foreseeable that persons inside will destroy evidence, thus the destruction and therefore the exigency was created by law enforcement and could not justify entry.  This holding set off the appeal to the United States Supreme Court.

In analyzing the case, the United States Supreme Court noted that warrantless searches of homes are unreasonable unless justified by some recognized exception to the warrant requirement.  The Court went on to outline the various types of exigency that may justify an entry without a warrant:

One well-recognized exception applies when "'the exigencies of the situation' make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment." "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant".

This Court has identified several exigencies that may justify a warrantless search of a home. Under the "emergency aid" exception, for example, "officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." ; see also, e.g., Fisher, supra, at ___, 130 S. Ct. 546, 175 L. Ed. 2d 410, 413 (upholding warrantless home entry based on emergency aid exception). Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.  And -- what is relevant here -- the need "to prevent the imminent destruction of evidence" has long been recognized as a sufficient justification for a warrantless search. [cites omitted]

Thus, the Court’s focus here was on when law enforcement is justified in making entry to prevent the imminent destruction of evidence and how law enforcement’s conduct leading up to that point impacts the admissibility of evidence discovered as a result of the entry.  The Court pointed out that a number of lower courts had identified a concept of “police created exigency” which essentially meant that law enforcement could not purposely create an exigent circumstance to circumvent the warrant requirement.  The Court noted:

In applying this exception for the "creation" or "manufacturing" of an exigency by the police, courts require something more than mere proof that fear of detection by the police caused the destruction of evidence. An additional showing is obviously needed because, as the Eighth Circuit has recognized, "in some sense the police always create the exigent circumstances."   That is to say, in the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police. Consequently, 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.

The Court thus recognized that it is always some action of law enforcement that creates the fear and therefore the exigency when dealing with destruction of evidence cases. Therefore a rule which held that if any law enforcement conduct created the exigency, then the entry without a warrant would be invalid would essentially abolish this exception.

The Court went on to distinguish what types of conduct by law enforcement would invalidate an exigent entry to prevent the destruction of evidence.  After noting that the lower courts had developed five different tests to determine the validity of such exigent entries the Court held:

Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. 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. For these reasons, we conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. This holding provides ample protection for the privacy rights that the Amendment protects.

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. When the police knock on a door but the occupants choose not to respond or speak, "the investigation will have reached a conspicuously low point," and the occupants "will have the kind of warning that even the most elaborate security system cannot provide." And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.

Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

The Court then applied its holding to the facts which were presented by this search:

In this case, we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Officer Cobb testified without contradiction that the officers "banged on the door as loud as [they] could" and announced either "'police, police, police'" or "‘this is the police.'" This conduct was entirely consistent with the Fourth Amendment, and we are aware of no other evidence that might show that the officers either violated the Fourth Amendment or threatened to do so (for example, by announcing that they would break down the door if the occupants did not open the door voluntarily).

Respondent argues that the officers "demanded" entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion. He relies on a passing statement made by the trial court in its opinion denying respondent's motion to suppress. In recounting the events that preceded the search, the judge wrote that the officers "banged on the door of the apartment on the back left of the breezeway identifying themselves as police officers and demanding that the door be opened by the persons inside." However, at a later point in this opinion, the judge stated that the officers "initially knock[ed] on the door of the apartment unit and await[ed] the response or consensual entry." This later statement is consistent with the testimony at the suppression hearing and with the findings of the state appellate courts.

There is no evidence of a "demand" of any sort, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to our attention, the state court may elect to address that matter on remand.

Finally, respondent claims that the officers "explained to [the occupants that the officers] were going to make entry inside the apartment,” but the record is clear that the officers did not make this statement until after the exigency arose. As Officer Cobb testified, the officers "knew that there was possibly something that was going to be destroyed inside the apartment," and "[a]t that point... [they] explained... [that they] were going to make entry." Given that this announcement was made after the exigency arose, it could not have created the exigency.

Like the court below, we assume for purposes of argument that an exigency   existed. Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment.

The Court then remanded the case to the Kentucky Supreme Court to determine if any threatening to violate the Fourth Amendment or actual violation of the Fourth Amendment had occurred prior to the sounds of destruction of evidence which was the exigent circumstance. 

BOTTOM LINE:  If law enforcement has not threatened to violate the Fourth Amendment or has not violated the Fourth Amendment prior to the Exigent Circumstance arising, the exigent entry is valid.

If instead officers have threatened to break down the door or demanded entry such that the occupants believe that law enforcement will enter if they fail to comply and this occurs prior to the exigent circumstance, i.e. hearing sounds consistent with destruction of evidence, then the exigent entry will likely be invalidated. 

Officers would be well advised when dealing with these types of cases to choose their words carefully during the knock and announce, the Court took no issue with a loud knock and announcement of police presence but did suggest that a demand of entry without a warrant prior to the exigent circumstance may lead to the unconstitutional creation of exigency on the part of the officers.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

 

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