How Hot is Your Pursuit? Courts Revisit Reasonable Searches

At the end of each year, it’s a good idea to look back and reflect on one’s decisions. For the United States Supreme Court though, it just means more petitions to look over. One petition, however, might give the justices a chance to reevaluate one of their previous decisions.

In 2011, police in Kentucky pursued a drug dealer into an apartment complex. Although the police lost sight of the fugitive, they did smell marijuana from one of the apartments. The police knocked on the door and called out “police!” No one answered the door, but the officers did hear sounds coming from inside the apartment. Fearing that evidence was being destroyed, the police entered the apartment and saw Hollis King, as well as his girlfriend, smoking marijuana in plain sight of the door. King was arrested. The drug dealer the police had been pursuing earlier was found in another area of the building.

The question of whether the police could make a search and arrest without a warrant has been a highly contested one. Although the 4^th Amendment requires the police have a warrant before a search and seizure is made, there is an exception if the police are in “hot pursuit” of a suspect. The Kentucky Supreme Court had originally ruled that the police could not use the evidence against King because the police had created the situation which caused the police to believe evidence was being destroyed. The Federal Supreme Court, however, overruled the Kentucky Supreme Court.

In an 8-1 decision, with Justice Ginsburg being the odd judge out, the Supreme Court held that the Kentucky high court had to consider the total circumstances surrounding the case, not just the fact the police had created the circumstances. The following year, in 2012, the Kentucky Supreme Court reheard the case and once again found for the defendant. This time, the state Court ruled that the police could not rely on “possible” destruction of evidence, since the officer’s interpretation of the situation was too subjective. The state of Kentucky is re-petitioning the United States Supreme Court to challenge this latest argument.

Although the police should be able to prevent a crime from occurring if they believe a crime is in progress, police being in “hot pursuit” should not be an exception to the warrant requirement if the police are conducting a search outside the pursuit. First, and most obviously, King was not the person the police were pursuing. A criminal should not be able to evade the law by hiding in an apartment, but in this case the police were not even aware of King’s presence until they entered his home. There is a very weak connection between the pursuit and the defendant, so weak that the police should not be allowed to rely on the pursuit for the warrantless search.

The police would reply that the connection is strong enough. Both the suspect and the defendant were committing a similar crime, possession of marijuana, and the suspect had fled into the building King was residing in. The police had to search the building if they wanted to capture the drug dealer, and it is probable that the suspect would be where the marijuana was. I find it unlikely though, that the drug dealer would stop in his escape attempt to smoke a joint. The search of King’s apartment was a pit stop to apprehending the criminal the police were pursuing. Given that drug crimes are typically non-violent crimes, the police could have obtained a warrant if they wanted to search the King residence.

Second, I would not leave it to police discretion to determine when the warrant requirement should kick in. The purpose of the Bill of Rights is to limit state power. Allowing the police to make their own judgments regarding enforcement of a rule designed to inhibit the police is contradictory to the right of citizens to be secured in their own homes absent a warrant. The state of Kentucky might say that procedure should not be a barrier to the fact that King was actually committing a crime. Kentucky would say that the proper course of action is to punish the police officers for breaking the law, rather than allow the defendant to walk free on a technicality.

That recommendation, however, is absurd. Punishing the police officers instead of allowing the defendants to go free is no guarantee that the police will not continue to violate other citizen’s rights in the future. Many officers may decide that the risk of suspension or even termination is worth putting more criminals in jail. More importantly though, individual rights, which the warrant requirement is one of, should focus on protecting individuals rather than punishing the police. Hopefully the United States Supreme Court will remember that the judiciary is the branch of government tasked with protecting individual rights and the Justices will make liberty a New Year’s Resolution for 2013.