State Supreme Court rules against Lexington police for entering home without a search warrant | Lexington Herald Leader

Urgent circumstances did not exist for Lexington police to enter an apartment without a warrant in 2005, the Kentucky Supreme Court ruled Thursday.

The decision is the latest development in a case that was addressed by the U.S. Supreme Court in 2011 and sent back to Kentucky. At issue are the circumstances that must be present for the police to enter a home without a search warrant, which the Constitution normally requires.

The decision is not only a victory for Hollis Deshaun King, whose 2006 conviction on various drug charges was canceled by a previous Kentucky Supreme Court decision, it is a victory for the public against unreasonable searches and seizures, said Jamesa J. Drake, the public defender who represented King.

The case dates to Oct. 13, 2005, when King was entertaining two friends at his Centre Parkway apartment. No one disputes that there was marijuana and a small amount of cocaine in the apartment.

But police might never have known were it not for a nearby undercover operation in which an informant bought crack cocaine from a dealer. When the dealer entered King's apartment building, the police moved in to arrest the dealer.

Police heard a door slam in a breezeway but did not see which apartment the suspect had entered.

As it turned out, their suspect had entered the door on the right. The police went to the door on the left, after smelling pot coming from that door.

After they knocked and announced themselves, the officers said they heard noises they thought might indicate that evidence was being destroyed.

They kicked in King's door and. finding the drugs, arrested King and his friends. King eventually pleaded guilty to drug trafficking, marijuana possession and being a persistent felony offender, but he reserved the right to appeal a circuit court's denial of his motion to suppress evidence. The Kentucky Court of Appeals affirmed the circuit court's judgment.

But in 2010, the Kentucky Supreme Court threw out the evidence against King and vacated his conviction, ruling that police did not have cause to burst into his home without a warrant.

The state court said police may not rely on "exigent" or urgent circumstances they themselves create to enter a home without a warrant.

But in its May 2011 decision, the U.S. Supreme Court held that police may rely on urgent circumstances so long "as the police did not create" the emergency by engaging or threatening to engage in conduct that violates the Fourth Amendment protection from unreasonable search and seizure.

Because the police did not engage in such conduct, the U.S. Supreme Court reversed the Kentucky Supreme Court. But the U.S. Supreme Court held that any question about whether urgent circumstances actually existed were better addressed by the state supreme court.

That issue was addressed in Thursday's seven-page opinion written by Justice Wil Schroder.

Under the Fourth Amendment, police can't conduct a warrantless search in a private home without probable cause (the smell of marijuana provided the undisputed reasonable cause in this case) and urgent circumstances. Any other search is unreasonable.

The state attorney general's office originally argued that the warrantless entry was justified by the "hot pursuit" of a fleeing suspect and the imminent destruction of evidence.

The U.S. Supreme Court denied review on the issue of hot pursuit, so the state Supreme Court on Thursday reaffirmed its original opinion that "there was no hot pursuit justifying the warrantless entry of the back left apartment."

On the issue of imminent destruction of evidence, the Kentucky Supreme Court concluded that the commonwealth "failed to meet its burden" of demonstrating urgent circumstances justifying a warrantless entry.

During a Fayette Circuit Court hearing in which King sought to suppress evidence, Lexington police officer Steven Cobb repeatedly referred to the "possible" destruction of evidence. Cobb said that he heard people moving inside the apartment and that this was "the same kind of movements we've heard inside" when other suspects have destroyed evidence.

Cobb never articulated the specific sounds he heard that led him to think evidence was about to be destroyed.

Thursday's opinion said the sounds "were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door."

Finally, the opinion said that urgent circumstances "do not deal with mere possibilities, and the commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure."

Chief Justice John D. Minton Jr. and Justices Mary Noble, Daniel Venters and Lisabeth Hughes Abramson concurred in the majority opinion. Justice Bill Cunningham dissented because he said the officers acted under urgent circumstances, and Justice Will T. Scott joined in that dissent.

Allison Martin, communications director for the state attorney general's office, said Thursday's decision was under review there.

"Our attorneys have 20 days to determine whether or not they will ask for a rehearing at the Kentucky Supreme Court," Martin said.

In addition, the attorney general's office has 90 days to seek a review by the U.S. Supreme Court, Martin said.