OPINION OF THE COURT KENTUCKY V. KING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1272 KENTUCKY, PETITIONER v. HOLLIS DESHAUN
KING

															on writ of certiorari to the supreme court of
kentucky

															[May 16, 2011]

															   Justice Alito delivered the
opinion of the Court.

															   It is well established that
“exigent circumstances,” including the need to prevent the
destruction of evidence, permit police officers to conduct an
otherwise permissible search without first obtaining a warrant. In
this case, we consider whether this rule applies when police, by
knocking on the door of a residence and announcing their presence,
cause the occupants to attempt to destroy evidence. The Kentucky
Supreme Court held that the exigent circumstances rule does not
apply in the case at hand because the police should have foreseen
that their conduct would prompt the occupants to attempt to destroy
evidence. We reject this interpretation of the exigent
circumstances rule. The conduct of the police prior to their entry
into the apartment was entirely lawful. They did not violate the
Fourth Amendment or threaten to do so. In such a situation, the
exigent circumstances rule applies.

															I

															A

															   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.[ Footnote
1 ] 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.

															   Police eventually entered the apartment on the
right. Inside, they found the suspected drug dealer who was the
initial target of their investigation.

															B

															   In the Fayette County Circuit
Court, a grand jury charged respondent with trafficking in
marijuana, first-degree trafficking in a controlled substance, and
second-degree persistent felony offender status. Respondent filed a
motion to suppress the evidence from the warrantless search, but
the Circuit Court denied the motion. The Circuit Court concluded
that the officers had probable cause to investigate the marijuana
odor and that the officers “properly conducted [the investigation]
by initially knocking on the door of the apartment unit and
awaiting the response or consensual entry.” App. to Pet. for Cert.
9a. Exigent circumstances justified the warrantless entry, the
court held, because “there was no response at all to the knocking,”
and because “Officer Cobb heard movement in the apartment which he
reasonably concluded were persons in the act of destroying
evidence, particularly narcotics because of the smell.” Ibid. Respondent then entered a conditional guilty plea,
reserving his right to appeal the denial of his suppression motion.
The court sentenced respondent to 11 years’ imprisonment.

															   The Kentucky Court of Appeals
affirmed. It held that exigent circumstances justified the
warrantless entry because the police reasonably believed that
evidence would be destroyed. The police did not impermissibly
create the exigency, the court explained, because they did not
deliberately evade the warrant requirement.

															   The Supreme Court of Kentucky reversed. 302
S. W. 3d 649 (2010). As a preliminary matter, the court
observed that there was “certainly some question as to whether the
sound of persons moving [inside the apartment] was sufficient to
establish that evidence was being destroyed.” Id., at 655.
But the court did not answer that question. Instead, it “assume[d]
for the purpose of argument that exigent circumstances existed.” Ibid. To determine whether police impermissibly
created the exigency, the Supreme Court of Kentucky announced a
two-part test. First, the court held, police cannot “deliberately
creat[e] the exigent circumstances with the bad faith intent to
avoid the warrant requirement.” Id. , at 656 (internal
quotation marks omitted). Second, even absent bad faith, the court
concluded, police may not rely on exigent circumstances if “it was
reasonably foreseeable that the investigative tactics employed by
the police would create the exigent circumstances.” Ibid. (internal quotation marks omitted). Although the court found no
evidence of bad faith, it held that exigent circumstances could not
justify the search because it was reasonably foreseeable that the
occupants would destroy evidence when the police knocked on the
door and announced their presence. Ibid. We granted certiorari. 561 U. S. ___
(2010).[ Footnote 2 ]

															II

															A

															   The Fourth Amendment
provides:

															   “The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.”

															   The text of the Amendment thus
expressly imposes two requirements. First, all searches and
seizures must be reasonable. Second, a warrant may not be issued
unless probable cause is properly established and the scope of the
authorized search is set out with particularity. See Payton v. New York , 445 U. S. 573 , 584
(1980).

															   Although the text of the Fourth Amendment does
not specify when a search warrant must be obtained, this Court has
inferred that a warrant must generally be secured. “It is a ‘basic
principle of Fourth Amendment law,’ ” we have often said,
“ ‘that searches and seizures inside a home without a warrant
are presumptively unreasonable.’ ” Brigham City v. Stuart , 547
U. S. 398 , 403 (2006) (quoting Groh v. Ramirez , 540 U. S. 551 , 559
(2004)). But we have also recognized that this presumption may be
overcome in some circumstances because “[t]he ultimate touchstone
of the Fourth Amendment is ‘reasonableness.’ ” Brigham
City , supra, at 403; see also Michigan v. Fisher , 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 2). Accordingly, the warrant requirement is subject
to certain reasonable exceptions. Brigham City , supra , at 403.

															   One well-recognized exception applies when
“ ‘the exigencies of the situation’ make the needs of law
en-forcement so compelling that [a] warrantless search is
objectively reasonable under the Fourth Amendment.” Mincey v. Arizona , 437 U. S. 385 , 394
(1978); see also Payton , supra, at 590 (“[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. See Brigham
City , 547 U. S., at 403. 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.” Ibid.; see also, e.g.,
Fisher , supra, at ___ (slip op., at 5) (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. See United States v. Santana , 427
U. S. 38 , 42–43 (1976). 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. Brigham City , supra, at 403; see also Georgia v. Randolph , 547 U. S. 103 , 116,
n. 6 (2006); Minnesota v. Olson , 495 U. S. 91 , 100
(1990).[ Footnote 3 ]

															B

															   Over the years, lower courts have
developed an exception to the exigent circumstances rule, the
so-called “police-created exigency” doctrine. Under this doctrine,
police may not rely on the need to prevent destruction of evidence
when that exigency was “created” or “manufactured” by the conduct
of the police. See, e.g., United States v. Chambers , 395 F. 3d 563, 566 (CA6 2005) (“[F]or a
warrantless search to stand, law enforcement officers must be
responding to an unanticipated exigency rather than simply creating
the exigency for themselves”); United States v. Gould , 364 F. 3d 578, 590 (CA5 2004) (en banc)
(“[A]lthough exigent circumstances may justify a warrantless
probable cause entry into the home, they will not do so if the
exigent circumstances were manufactured by the agents” (internal
quotation marks omitted)).

															   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.” United States v. Duchi ,
906 F. 2d 1278, 1284 (CA8 1990). 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.

															   Presumably for the purpose of avoiding such a
result, the lower courts have held that the police-created exigency
doctrine requires more than simple causation, but the lower courts
have not agreed on the test to be applied. Indeed, the petition in
this case maintains that “[t]here are currently five different
tests being used by the United States Courts of Appeals,” Pet. for
Cert. 11, and that some state courts have crafted additional tests, id. , at 19–20.

															III

															A

															   Despite the welter of tests
devised by the lower courts, the answer to the question presented
in this case follows directly and clearly from the principle that
permits warrantless searches in the first place. As previously
noted, warrantless searches are allowed when the circumstances make
it reasonable, within the meaning of the Fourth Amendment, to
dispense with the warrant requirement. 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.[ Footnote 4 ]

															   We have taken a similar approach
in other cases involving warrantless searches. For example, we have
held that law enforcement officers may seize evidence in plain
view, provided that they have not violated the Fourth Amendment in
arriving at the spot from which the observation of the evidence is
made. See Horton v. California , 496 U. S. 128 , 136–140
(1990). As we put it in Horton , “[i]t is … an essential
predicate to any valid warrantless seizure of incriminating
evidence that the officer did not violate the Fourth Amendment in
arriving at the place from which the evidence could be plainly
viewed.” Id., at 136. So long as this prerequisite is
satisfied, however, it does not matter that the officer who makes
the observation may have gone to the spot from which the evidence
was seen with the hope of being able to view and seize the
evidence. See id., at 138 (“The fact that an officer is
interested in an item of evidence and fully expects to find it in
the course of a search should not invalidate its seizure”).
Instead, the Fourth Amendment requires only that the steps
preceding the seizure be lawful. See id., at 136–137.

															   Similarly, officers may seek consent-based
encounters if they are lawfully present in the place where the
consensual encounter occurs. See INS v. Delgado , 466 U. S. 210 ,
217, n. 5 (1984) (noting that officers who entered into
consent-based encounters with employees in a factory building were
“lawfully present [in the factory] pursuant to consent or a
warrant”). If consent is freely given, it makes no difference that
an officer may have approached the person with the hope or
expectation of obtaining consent. See id., at 216 (“While
most citizens will respond to a police request, the fact that
people do so, and do so without being told they are free not to
respond, hardly eliminates the consensual nature of the
response”).

															B

															   Some lower courts have adopted a
rule that is similar to the one that we recognize today. See United States v. MacDonald , 916 F. 2d 766,
772 (CA2 1990) (en banc) (law enforcement officers “do not
impermissibly create exigent circumstances” when they “act in an
entirely lawful manner”); State v. Robinson , 2010
WI 80, ¶32, 327 Wis. 2d 302, 326–328, 786 N. W. 2d 463,
475–476 (2010). But others, including the Kentucky Supreme Court,
have imposed additional requirements that are unsound and that we
now reject. Bad faith . Some courts,
including the Kentucky Supreme Court, ask whether law enforcement
officers “ ‘deliberately created the exigent circumstances
with the bad faith intent to avoid the warrant requirement.’ ”
302 S. W. 3d, at 656 (quoting Gould , 364 F. 3d,
at 590); see also, e.g., Chambers , 395
F. 3d, at 566; United States v. Socey , 846
F. 2d 1439, 1448 (CADC 1988); United States v. Rengifo , 858 F. 2d 800, 804 (CA1 1988).

															   This approach is fundamentally inconsistent
with our Fourth Amendment jurisprudence. “Our cases have repeatedly
rejected” a subjective approach, asking only whether “the
circumstances, viewed objectively , justify the action.” ’Brigham City , 547 U. S., at 404 (alteration and internal
quotation marks omitted); see also Fisher , 558 U. S., at
___ (slip op., at 3–5). Indeed, we have never held, outside limited
contexts such as an “inventory search or administrative inspection
… , that an officer’s motive invalidates objectively
justifiable behavior under the Fourth Amendment.” Whren v. United States , 517 U. S. 806 , 812
(1996); see also Brigham City, supra, at 405.

															   The reasons for looking to objective factors,
rather than subjective intent, are clear. Legal tests based on
reasonableness are generally objective, and this Court has long
taken the view that “evenhanded law enforcement is best achieved by
the application of objective standards of conduct, rather than
standards that depend upon the subjective state of mind of the
officer.” Horton , supra, at 138. Reasonable foreseeability . Some
courts, again including the Kentucky Supreme Court, hold that
police may not rely on an exigency if “ ‘it was reasonably
foreseeable that the investigative tactics employed by the police
would create the exigent circumstances.’ ” 302
S. W. 3d, at 656 (quoting Mann v . State , 357 Ark. 159, 172, 161 S. W. 3d 826, 834
(2004)); see also, e.g., United States v. Mowatt , 513 F. 3d 395, 402 (CA4 2008). Courts
applying this test have invalidated warrantless home searches on
the ground that it was reasonably foreseeable that police officers,
by knocking on the door and announcing their presence, would lead a
drug suspect to destroy evidence. See, e.g., id. ,
at 402–403; 302 S. W. 3d, at 656.

															   Contrary to this reasoning, however, we have
rejected the notion that police may seize evidence without a
warrant only when they come across the evidence by happenstance. In Horton , as noted, we held that the police may seize
evidence in plain view even though the officers may be “interested
in an item of evidence and fully expec[t] to find it in the course
of a search.” 496 U. S., at 138.

															   Adoption of a reasonable foreseeability test
would also introduce an unacceptable degree of unpredictability.
For example, whenever law enforcement officers knock on the door of
premises occupied by a person who may be involved in the drug
trade, there is some possibility that the occupants may
possess drugs and may seek to destroy them. Under a reasonable
foreseeability test, it would be necessary to quantify the degree
of predictability that must be reached before the police-created
exigency doctrine comes into play.

															   A simple example illustrates the difficulties
that such an approach would produce. Suppose that the officers in
the present case did not smell marijuana smoke and thus knew only
that there was a 50% chance that the fleeing suspect had entered
the apartment on the left rather than the apartment on the right.
Under those circumstances, would it have been reasonably
foreseeable that the occupants of the apartment on the left would
seek to destroy evidence upon learning that the police were at the
door? Or suppose that the officers knew only that the suspect had
disappeared into one of the apartments on a floor with 3, 5, 10, or
even 20 units? If the police chose a door at random and knocked for
the purpose of asking the occupants if they knew a person who fit
the description of the suspect, would it have been reasonably
foreseeable that the occupants would seek to destroy evidence?

															   We have noted that “[t]he calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor , 490 U. S. 386 , 396–397
(1989). The reasonable foreseeability test would create
unacceptable and unwarranted difficulties for law enforcement
officers who must make quick decisions in the field, as well as for
judges who would be required to determine after the fact whether
the destruction of evidence in response to a knock on the door was
reasonably foreseeable based on what the officers knew at the
time. Probable cause and time to secure a
warrant . Some courts, in applying the police-created exigency
doctrine, fault law enforcement officers if, after acquiring
evidence that is sufficient to establish probable cause to search
particular premises, the officers do not seek a warrant but instead
knock on the door and seek either to speak with an occupant or to
obtain consent to search. See, e.g., Chambers , supra, at 569 (citing “[t]he failure to seek a warrant in
the face of plentiful probable cause” as a factor indicating that
the police deliberately created the exigency).

															   This approach unjustifiably interferes with
legitimate law enforcement strategies. There are many entirely
proper reasons why police may not want to seek a search warrant as
soon as the bare minimum of evidence needed to establish probable
cause is acquired. Without attempting to provide a comprehensive
list of these reasons, we note a few.

															   First, the police may wish to speak with the
occupants of a dwelling before deciding whether it is worthwhile to
seek authorization for a search. They may think that a short and
simple conversation may obviate the need to apply for and execute a
warrant. See Schneckloth v. Bustamonte , 412 U. S. 218 , 228
(1973). Second, the police may want to ask an occupant of the
premises for consent to search because doing so is simpler, faster,
and less burdensome than applying for a warrant. A consensual
search also “may result in considerably less inconvenience” and
embarrassment to the occupants than a search conducted pursuant to
a warrant. Ibid. Third, law enforcement officers may wish
to obtain more evidence before submitting what might otherwise be
considered a marginal warrant application. Fourth, prosecutors may
wish to wait until they acquire evidence that can justify a search
that is broader in scope than the search that a judicial officer is
likely to authorize based on the evidence then available. And
finally, in many cases, law enforcement may not want to execute a
search that will disclose the existence of an investigation because
doing so may interfere with the acquisition of additional evidence
against those already under suspicion or evidence about additional
but as yet unknown participants in a criminal scheme.

															   We have said that “[l]aw enforcement officers
are under no constitutional duty to call a halt to criminal
investigation the moment they have the minimum evidence to
establish probable cause.” Hoffa v. United
States , 385 U.
S. 293 , 310 (1966). Faulting the police for failing to apply
for a search warrant at the earliest possible time after obtaining
probable cause imposes a duty that is nowhere to be found in the
Constitution. Standard or good investigative
tactics . Finally, some lower court cases suggest that law
enforcement officers may be found to have created or manufactured
an exigency if the court concludes that the course of their
investigation was “contrary to standard or good law enforcement
practices (or to the policies or practices of their
jurisdictions).” Gould , 364 F. 3d, at 591. This
approach fails to provide clear guidance for law enforcement
officers and authorizes courts to make judgments on matters that
are the province of those who are responsible for federal and state
law enforcement agencies.

															C

															   Respondent argues for a rule that
differs from those discussed above, but his rule is also flawed.
Respondent contends that law enforcement officers impermissibly
create an exigency when they “engage in conduct that would cause a
reasonable person to believe that entry is imminent and
inevitable.” Brief for Respondent 24. In respondent’s view,
relevant factors include the officers’ tone of voice in announcing
their presence and the forcefulness of their knocks. But the
ability of law enforcement officers to respond to an exigency
cannot turn on such subtleties.

															   Police officers may have a very
good reason to announce their presence loudly and to knock on the
door with some force. A forceful knock may be necessary to alert
the occupants that someone is at the door. Cf. United
States v. Banks , 540 U. S. 31 , 33 (2003) (Police “rapped
hard enough on the door to be heard by officers at the back door”
and announced their presence, but defendant “was in the shower and
testified that he heard nothing”). Furthermore, unless police
officers identify themselves loudly enough, occupants may not know
who is at their doorstep. Officers are permitted—indeed,
encouraged—to identify themselves to citizens, and “in many
circumstances this is cause for assurance, not discomfort.” United States v. Drayton , 536 U. S. 194 , 204
(2002). Citizens who are startled by an unexpected knock on the
door or by the sight of unknown persons in plain clothes on their
doorstep may be relieved to learn that these persons are police
officers. Others may appreciate the opportunity to make an informed
decision about whether to answer the door to the police.

															   If respondent’s test were adopted, it would be
extremely difficult for police officers to know how loudly they may
announce their presence or how forcefully they may knock on a door
without running afoul of the police-created exigency rule. And in
most cases, it would be nearly impossible for a court to determine
whether that threshold had been passed. The Fourth Amendment does
not require the nebulous and impractical test that respondent
proposes.[ Footnote 5 ]

															D

															   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. Cf. Florida v. Royer , 460 U. S. 491 , 497–498
(1983). (“[H]e may decline to listen to the questions at all and
may go on his way”). When the police knock on a door but the
occupants choose not to respond or to 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.” Chambers , 395 F. 3d,
at 577 (Sutton, J., dissenting). 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.

															IV

															   We now apply our interpretation
of the police-created exigency doctrine to the facts of this
case.

															A

															   We need not decide whether
exigent circumstances existed in this case. Any warrantless entry
based on exigent circumstances must, of course, be supported by a
genuine exigency. See Brigham City , 547 U. S., at
406 . The trial court and the Kentucky Court of Appeals
found that there was a real exigency in this case, but the Kentucky
Supreme Court expressed doubt on this issue, observing that there
was “certainly some question as to whether the sound of persons
moving [inside the apartment] was sufficient to establish that
evidence was being destroyed.” 302 S. W. 3d, at 655. The
Kentucky Supreme Court “assum[ed] for the purpose of argument that
exigent circumstances existed,” ibid., and it held that
the police had impermissibly manufactured the exigency.

															   We, too, assume for purposes of
argument that an exigency existed. We decide only the question on
which the Kentucky Supreme Court ruled and on which we granted
certiorari: Under what circumstances do police impermissibly create
an exigency? Any question about whether an exigency actually
existed is better addressed by the Kentucky Supreme Court on
remand. See Kirk v. Louisiana , 536 U. S. 635 , 638
(2002) (per curiam) (reversing state-court judgment that
exigent circumstances were not required for warrantless home entry
and remanding for state court to determine whether exigent
circumstances were present).

															B

															   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.’ ” App. 22–23. 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. See App. to Pet.
for Cert. 3a–4a. 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.” Ibid . (emphasis added and
deleted). 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.” Id. , at 9a. This later statement is consistent with the
testimony at the suppression hearing and with the findings of the
state appellate courts. See 302 S. W. 3d, at 651 (The
officers “knocked loudly on the back left apartment door and
announced ‘police’ ”); App. to Pet. for Cert. 14a (The
officers “knock[ed] on the door and announc[ed] themselves as
police”); App. 22–24. 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,” id., at 24, 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.” Ibid. (emphasis
added). 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 judgment of the Kentucky
Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.

															It is so ordered. Footnote 1 Respondent’s girlfriend leased the apartment,
but respondent stayed there part of the time, and his child lived
there. Based on these facts, Kentucky conceded in state court that
respondent has Fourth Amendment standing to challenge the search.
See App. to Pet. for Cert. 7a; see also 302 S. W. 3d 649,
652 (Ky. 2010). Footnote 2 After we granted certiorari, respondent filed
a motion to dismiss the petition as improvidently granted, which we
denied. 562 U. S. ___ (2010). Respondent’s principal argument was
that the case was moot because, after the Kentucky Supreme Court
reversed his conviction, the Circuit Court dismissed the charges
against him. Respondent’s argument is foreclosed by United
States v. Villamonte-Marquez , 462 U. S. 579 , 581,
n. 2 (1983). As we explained in Villamonte-Marquez ,
our reversal of the Kentucky Supreme Court’s decision “would
reinstate the judgment of conviction and the sentence entered” by
the Circuit Court. Ibid. The absence of an indictment does
not change matters. See ibid. (“Upon respondents’
conviction and sentence, the indictment that was returned against
them was merged into their convictions and sentences”). Footnote 3 Preventing the destruction of evidence may
also justify dispensing with Fourth Amendment requirements in other
contexts. See, e.g., Richards v. Wisconsin , 520 U. S. 385 ,
395–396 (1997) (failure to comply with the knock-and-announce
requirement was justified because “the circumstances … show[ed]
that the officers had a reasonable suspicion that [a suspect] might
destroy evidence if given further opportunity to do so”); Schmerber v. California , 384 U. S. 757 , 770–771
(1966) (warrantless testing for blood-alcohol content was justified
based on potential destruction of evidence); cf. United
States v. Banks , 540 U. S. 31 , 37–40 (2003) (15 to 20
seconds was a reasonable time for officers to wait after knocking
and announcing their presence where there was a risk that suspect
would dispose of cocaine). Footnote 4 There is a strong argument to be made that,
at least in most circumstances, the exigent circumstances rule
should not apply where the police, without a warrant or any legally
sound basis for a warrantless entry, threaten that they will enter
without permission unless admitted. In this case, however, no such
actual threat was made, and therefore we have no need to reach that
question. Footnote 5 Contrary to respondent’s argument, see Brief
for Respondent 13–18, Johnson v. United States , 333 U. S. 10 (1948), does not require affirmance in this case. In Johnson , officers noticed the smell of burning opium
emanating from a hotel room. They then knocked on the door and
demanded entry. Upon seeing that Johnson was the only occupant of
the room, they placed her under arrest, searched the room, and
discovered opium and drug paraphernalia. Id. , at 11.

															Defending the legality of the search, the
Government attempted to justify the warrantless search of the room
as a valid search incident to a lawful arrest. See Brief for United
States in Johnson v. United States , O. T.
1947, No. 329, pp. 13, 16, 36. The Government did not contend
that the officers entered the room in order to prevent the
destruction of evidence. Although the officers said that they heard
a “ ‘shuffling’ ” noise inside the room after they
knocked on the door, 333 U. S., at 12, the Government did not claim
that this particular noise was a noise that would have led a
reasonable officer to think that evidence was about to be
destroyed. Thus, Johnson is simply not a case about
exigent circumstances. See id. , at 14–15 (noting that if
“exceptional circumstances” existed—for example, if a “suspect was
fleeing or likely to take flight” or if “evidence or contraband was
threatened with removal or destruction”—then “it may be contended
that a magistrate’s warrant for search may be dispensed with”). GINSBURG, J., DISSENTING KENTUCKY V. KING 563 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1272 KENTUCKY, PETITIONER v. HOLLIS DESHAUN
KING

															on writ of certiorari to the supreme court of
kentucky

															[May 16, 2011]

															   Justice Ginsburg, dissenting.

															   The Court today arms the police
with a way routinely to dishonor the Fourth Amendment’s warrant
requirement in drug cases. In lieu of presenting their evidence to
a neutral magistrate, police officers may now knock, listen, then
break the door down, nevermind that they had ample time to obtain a
warrant. I dissent from the Court’s reduction of the Fourth
Amendment’s force.

															    The Fourth Amendment guarantees to the people
“[t]he right … to be secure in their … houses … against
unreasonable searches and seizures.” Warrants to search, the
Amendment further instructs, shall issue only upon a showing of
“probable cause” to believe criminal activity is afoot. These
complementary provisions are designed to ensure that police will
seek the authorization of a neutral magistrate before undertaking a
search or seizure. Exceptions to the warrant requirement, this
Court has explained, must be “few in number and carefully
delineated,” if the main rule is to remain hardy. United
States v. United States Dist. Court for Eastern Dist. of
Mich. , 407 U.
S. 297 , 318 (1972); see Kyllo v. United
States , 533 U.
S. 27 , 31 (2001).

															   This case involves a principal exception to
the warrant requirement, the exception applicable in “exigent
circumstances.” See ante , at 6–7. “[C]arefully
delineated,” the exception should govern only in genuine emergency
situations. Circumstances qualify as “exigent” when there is an
imminent risk of death or serious injury, or danger that evidence
will be immediately destroyed, or that a suspect will escape. Brigham City v. Stuart , 547 U. S. 398 , 403
(2006). The question presented: May police, who could pause to gain
the approval of a neutral magistrate, dispense with the need to get
a warrant by themselves creating exigent circumstances? I would
answer no, as did the Kentucky Supreme Court. The urgency must
exist, I would rule, when the police come on the scene, not
subsequent to their arrival, prompted by their own conduct.

															I

															   Two pillars of our Fourth
Amendment jurisprudence should have controlled the Court’s ruling:
First, “whenever practical, [the police must] obtain advance
judicial approval of searches and seizures through the warrant
procedure,” Terry v. Ohio , 392 U. S. 1 , 20 (1968);
second, unwarranted “searches and seizures inside a home” bear
heightened scrutiny, Payton v. New York , 445 U. S. 573 , 586
(1980). The warrant requirement, Justice Jackson observed, ranks
among the “fundamental distinctions between our form of government,
where officers are un- der the law, and the police-state where they
are the law.” Johnson v. United States , 333 U. S. 10 , 17 (1948).
The Court has accordingly declared warrantless searches, in the
main, “ per se unreasonable.” Mincey v. Arizona , 437 U. S. 385 , 390
(1978); see also Groh v. Ramirez , 540 U. S. 551 , 559
(2004). “[T]he police bear a heavy burden,” the Court has
cautioned, “when attempting to demonstrate an urgent need that
might justify warrantless searches.” Welsh v. Wisconsin , 466 U. S. 740 , 749–750
(1984).

															   That heavy burden has not been
carried here. There was little risk that drug-related evidence
would have been destroyed had the police delayed the search pending
a magistrate’s authorization. As the Court recognizes, “[p]ersons
in possession of valuable drugs are unlikely to destroy them unless
they fear discovery by the police.” Ante , at 8. Nothing in
the record shows that, prior to the knock at the apartment door,
the occupants were apprehensive about police proximity.

															   In no quarter does the Fourth Amendment apply
with greater force than in our homes, our most private space which,
for centuries, has been regarded as “ ‘entitled to special
protection.’ ” Georgia v. Randolph , 547 U. S. 103 , 115, and
n. 4 (2006); Minnesota v. Carter , 525 U. S. 83 , 99 (1998)
(Kennedy, J., concurring). Home intrusions, the Court has said, are
indeed “the chief evil against which … the Fourth Amendment is
directed.” Payton , 445 U. S., at 585 (internal quotation
marks omitted); see Silverman v. United States , 365 U. S. 505 ,
511 (1961) (“At [the Fourth Amendment’s] very core stands the right
of a man to retreat to his own home and there be free from
unreasonable governmental intrusion.”). “ ‘[S]earches and
seizures inside a home without a warrant are [therefore]
presumptively unreasonable.’ ” Brigham City ,
547 U. S., at 403 (quoting Groh , 540 U. S., at 559). How
“secure” do our homes remain if police, armed with no warrant, can
pound on doors at will and, on hearing sounds indicative of things
moving, forcibly enter and search for evidence of unlawful
activity?

															II

															   As above noted, to justify the
police activity in this case, Kentucky invoked the once-guarded
exception for emergencies “in which the delay necessary to obtain a
warrant … threaten[s] ‘the destruction of evidence.’ ” Schmerber v. California , 384 U. S. 757 , 770
(1966) (quoting Preston v. United States , 376 U. S. 364 ,
367 (1964)). To fit within this exception, “police action literally
must be [taken] ‘now or never’ to preserve the evidence of the
crime.” Roaden v. Kentucky , 413 U. S. 496 , 505
(1973).

															   The existence of a genuine
emergency depends not only on the state of necessity at the time of
the warrantless search; it depends, first and foremost, on “actions
taken by the police preceding the warrantless search.” United States v. Coles , 437 F. 3d 361, 367
(CA3 2006). See also United States v. Chambers ,
395 F. 3d 563, 565 (CA6 2005) (“[O]fficers must seek a warrant
based on probable cause when they believe in advance they will find
contraband or evidence of a crime.”). “[W]asting a clear
opportunity to obtain a warrant,” therefore, “disentitles the
officer from relying on subsequent exigent circumstances.” S.
Saltzburg & D. Capra, American Criminal Procedure 376 (8th ed.
2007).

															   Under an appropriately reined-in “emergency”
or “exigent circumstances” exception, the result in this case
should not be in doubt. The target of the investigation’s entry
into the building, and the smell of marijuana seeping under the
apartment door into the hallway, the Kentucky Supreme Court rightly
determined, gave the police “probable cause … sufficient … to
obtain a warrant to search the … apartment.” 302 S. W. 3d 649,
653 (2010). As that court observed, nothing made it impracticable
for the police to post officers on the premises while proceeding to
obtain a warrant authorizing their entry. Id ., at 654.
Before this Court, Kentucky does not urge otherwise. See Brief for
Petitioner 35, n. 13 (asserting “[i]t should be of no
importance whether police could have obtained a warrant”).

															   In Johnson , the Court confronted this
scenario: standing outside a hotel room, the police smelled burning
opium and heard “some shuffling or noise” coming from the room. 333
U. S., at 12 (internal quotation marks omitted). Could the police
enter the room without a warrant? The Court answered no. Explaining
why, the Court said:

															“The right of officers to thrust themselves into a
home is … a grave concern, not only to the individual but to a
society which chooses to dwell in reasonable security and freedom
from surveillance. When the right of privacy must reasonably yield
to the right of search is, as a rule, to be decided by a judicial
officer, not a policeman … .

															.     .     .     .     .

															   “If the officers in this case were excused
from the constitutional duty of presenting their evidence to a
magistrate, it is difficult to think of [any] case in which [a
warrant] should be required.” Id. , at 14–15.

															I agree, and would not allow an expedient knock to
override the warrant requirement. Instead, I would accord that core
requirement of the Fourth Amendment full respect. When possible, “a
warrant must generally be secured,” the Court acknowledges. Ante, at 5. There is every reason to conclude that
securing a warrant was entirely feasible in this case, and no
reason to contract the Fourth Amendment’s dominion.

															 The Court in Johnson was informed
that “when [the officer] knocked on [Johnson’s] door the ‘first
thing that naturally struck [her]’ was to conceal the opium and the
equipment for smoking it.” See Brief for United States in Johnson v. United States , O. T. 1947, No.
329, p. 17, n. 6. Had the Government in Johnson urged
that the “shuffling or noise” indicated evidence was at risk, would
the result have changed? Justice Jackson’s recognition of the
primacy of the warrant requirement suggests not. But see ante , at 15, n. 5 (distinguishing Johnson on
the ground that the Government did not contend “that the officers
entered the room in order to prevent the destruction of
evidence”).