part of the two-day visit to the state. just over a year, new hampshire had host the first in the nation primary. as the field begins to take share, tune into the white house sunday 6:30 and 9:30 p.m. eastern and pacific. >> supreme court heard argument earlier in a case that could give police greater authority to enter a home without a search warrant. in kentucky versus king the supreme court will decide if they can enter a home without a warrant. we're going to show you the argument now. >> kentucky versus king, mr. farley. >> mr. chief justice, may it please the court, the issue today of whether or not police can create exgent circumstances.

the test for the supreme court is improper for several reasons. the effect of the police officer when affect at the warrant is irrelevant? >> when did the kentucky supreme court said it was looking to a subjective state of mind? >> the kentucky's first test, i believe it's in our petition appendix on page 26. [papers shuffling] >> i'm sorry.

it's -- their discussion starts on page 44a and carries over to 46a. the first question of their test is whether or not the officers acted in bad faith and attempt to purposely evade the warrant requirement. >> that didn't apply in this case. >> this that is correct. the second prong of the test is whether or not the actions of the respondent would have been foreseeable by the police officers before they knocked and announced their presence. the problem with the forseability -- >> why is that subjective? why wouldn't it equal both to a reasonable police officer similarly situated? >> well, justice ginsburg, it isn't directly subjective. however, police officer are trained to expect and foresee illegal activity so that they may carry out the duties of

their job, and protecting the citizens. so under a foreseeability test, the reasonable officer won't always foresee the illegal activity, in response to his actions walking down the street or knocking on the door, the reasonable officer will always foresee illegal activity. for that reason, the kentucky supreme court's test is completely unworkable. some of the other circuits and lower courts have adopted test that also attempt to add an extra exception, an unwarranted closure of the exigent circumstances exception that narrows the use of that exception by police officer. the test that the commonwealth would propose is a simple lawfulness test. under this test, as long as the officer behaviors lawfully, there would be no sue presentation of evidence seized -- >> so you have an apartment

building where the police know from experience there's a lot of illegal activity, a lot of drugs, drug transactions, every two weeks they walk through and knock on every door and wait for the evidence of the destruction of drugs. is that all right? >> well there's -- i would say yes. if there is probable cause. >> probable cause, of course, comes when they hear the, you know, fleshing and hiding behind the door. >> well, i would assert there are two separate issues here. you must have probable cause separate from the existence of exigent circumstances. in this case, there was probably cause due to the smell of marijuana. >> they go to the apartment building, they sniff at every door. when they sniff, when a strong smell of marijuana em --

emanates through the door, as a routine. they do it every two weeks as a routine matter. they don't just knock on every door, but they knock on the doors where they smell marijuana. and they do that just as routine. in all of the buildings where they suspect there maybe drugs being stashed. >> justice ginsburg, under the simple lawful test, since the officers have not violated the 4th amendment prior to the exigency arising, there's no need to suppress any evidence. >> the chief justice when he said -- i think this was the generals position, the police can routinely knock at a door and wait to see if they hear a toilet flushing. i've taken out of this case. because i don't know what noise means. your answer would be yes.

>> yes, if probable cause exists. >> why do you need the probable cause inquiry? what does this have to do with anything? >> under the 4th amendment, before the reasonable search -- >> the toilet is flushing. >> they must have probable cause coupled with exigent circumstances. >> i think two probable causes, causes me some confusion. i understand the requirement of probable cause. what they hear sound of evidence being destroyed and, therefore enter. or are you talking about the probable cause to thinking of something going on? >> there are two separate issues. they must have probable cause aside from exigent circumstances. >> to knock on the door? >> they must have probable cause to knock on the door. >> no, justice kennedy, they could knock on the door. >> take us through it chronologically. the policeman is walking through

the hallway. no probable cause. he smells marijuana. he knocks on the door. when does the probable cause arise, and when must it arise? >> the smell of marijuana would give probable cause to obtain a search warrant. once he knocks on the door and hearing noises consistent with the destruction of physical evidence, then the exigency has arised. now the officer has both probably cause and exigent circumstances. >> i don't understand why the smell of marijuana is necessary. this goes back to what justice sotomayor was saying. you don't need probable cause to knock on the door. it's perfectly lawful. the knock is fine. then when you hear whatever it is that you hear that you think creates exigent circumstances, whether it's toilet flushing, or whether it's just noise, that too, gives you the ability to go right in. so if it's just lawfulness, you don't need the marijuana smell

even do you? >> i think we are confused. in order to enter with exigent circumstances, you must also have separate probable cause. >> probable cause beyond thinking? >> beyond reasonable of the police -- >> right. okay. >> yes, that is correct. >> it might just be somebody going to the toilet. >> it could be. >> so you have to suspect the reason the toilet is flushing somebody is trying to get rid of evidence. in order for that to be the case, you have to smell the marijuana. >> yes, justice scalia. >> so there's only one probable cause; right? >> yes. the exigent circumstances is a reasonable belief based upon the totality of the surrounding circumstances here given the officer had a reasonable belief they were chasing a fleeing felon, this was the doorway he had entered, then you couple that with the noises that they heard were based on the training -- >> may we just go back over. you are putting in the fleeing

felon. as far as i understand from the record, it was never shown that the dealer that the police were following was aware that he was following and that he was fleeing from them. this is the -- it's not part of the question that we presented because we granted only on the exigent circumstances. but i didn't think that there would -- the dealer wasn't called. he wasn't asked did you even know that the police were following you? >> that's correct, justice ginsburg. however, and we cannot divorce the officer's chase of this suspect regardless of whether he knew of their hot pursuit or not, we cannot divorce those facts from what the officers knew when they knocked on the door. >> sure you can. there's nothing illegal about walking down the hall and knocking on somebody's door.

and if it's a police officer, you say i smell marijuana, then you hear the flushing, then there's probable cause. you don't need any business about the dealer and the breezeway. >> certainly, certainly, mr. chief justice. you are absolutely correct. i was speaking in terms of this case. saying there was -- there was ample evidence that exigent circumstances existed here. >> may i ask a question that goes back to what you said? you have clarified very nicely. there has to be probable cause to think that there's something wrong going on in the apartment. you said that is -- at that point when they -- when the marijuana strong smell comes from the door, at that point, police could go and get a warrant. then they don't have to because then they knock on the door. we start out with the strong

presumption that the fourth amendment requires a warrant. a strong preference for getting a warrant. so why in this situation is the first response of the police be instead of knocking, because once they knocked, they alert the people in there? let's get a warrant or come back? >> well, the officers testified under these circumstances that they believed that they were in hot pursuit of this felon. at the time at the door, they believed he had entered the apartment and was aware of their presence and was destroying evidence of his deal of crack cocaine. >> how does this holding by us not become a simple warrantless entry in any drug case? meaning police knock on the door, suspect doesn't answer it,

gets up and moves to their bedroom. because there's no noise that was described by this police officer. it was simply not answering the door and moving. so if that's all it takes -- any police officer will come in and say in my experience, most drug dealers destroy the evidence when we knock. aren't we just doing away with johnson? and aren't we just simply saying they can walk in whenever they smell marijuana, whenever they think there's drugs on the other side, why do we even bother giving them a warrant? >> well, i guess disagree with you. i think when determining whether an exigent circumstances exists, you look at the totality of the circumstances. there would be a myriad of cases in which the court would determine simply based upon the testimony and noises that were heard with no surrounding

circumstances that exigent circumstances may not have existed. >> what if the defendants here had not flushed -- flushed the evidence down but had answered the door? and said, yes? would the policeman have been able to do anything just because they had smelled marijuana? >> they could have sought consensual encounter. >> yeah, heck no you can't come in. do you have a warrant? >> then the officers would not have been able. >> so basically the police are taking advantage of the stupidity of the criminals; is that right? >> i don't think i would phrase it -- >> that's terrible. [laughter] >> there's not a requirement to inform an occupant of the right to denial. however, the officers could not have forced their way into the home. >> what if the officers had knocked, said we're going to kick the door in if you don't open it?

>> i believe that's still fine under lawfulness test unless the occupant submits to the show of authority and comes to the door and allows entry. >> after they've heard the movement inside or flushing or whatever, you can't take it in because you've smelled marijuana. can you do it because you knock on the door, because you smell marijuana, and nobody answers and you kick the door? >> well, i believe the noises that they heard were consistent with destruction of physical evidence. >> without that noise. >> no, of course not. they would have to obtain a warrant. if the person came to the door and denied consent, they would have to obtain a warrant. if the person did not come to the door, then the officers would still have to go and obtain a warrant. >> it would be rudimentary, why isn't the evidence destroyed when the marijuana is being smoked? isn't it burned up? >> justice kennedy, i would tend

to agree with you. i know the court stated that the smell of burning opium was not the destruction of evidence. the only thing obtained would have been the fumes or the samered. -- vapors. i tend to disagree with that personally. however, from a legal viewpoint, the simple smell of burning marijuana. >> so the distinction is being distinction is being destroyed as opposed to being consumed. >> you mention johnson. and the other side said there was the same thing. the hotel room instead of apartment building that police smell in that case it was -- what was it? >> well, in what occurred in johnson, i believe, is completely different than what occurred here. what occurred in johnson was the officers forced their way into the occupants apartment -- the occupants hotel room. >> didn't they smell marijuana or opium or something too? >> they did. they knocked on the door. she came to the door.

they forced their way in. there was no let us in. there was no demand for entry. there was no even asked for constant enter. they then said consider yourself under arrest. they searched and then held her under arrest based upon the evidence. >> i thought they heard noises before they attempted to get into the apartment or the hotel room. there was something about noises. >> i believe they heard sounds. she actually came to the door. and the officers forced entry. here we don't have that. we have no forced entry. two circumstances. johnson and exigency does not exist. here exigency does exist. if there were no further questions, i'd like to reserve the remainder of my time. >> thank you, mr. farley. >> thank you. >> miss o'connell? >> mr. chief justice, may it please the court, if police pole

officers act lawfully in conducting investigation, they may respond to any exigency that arise. it's up to police officer to determine how they will collect evidence in any given case as long as they stay within the confines of the 4th amendment. although securing a warrant -- >> would you -- does the ruling in the case that any lawful conduct by the police mean that the police knock, somebody gets up on the other side and walked and closes a door in the back. the police say in my experience, it's consistent with the destruction of property that drug dealers will go into a closed room to get rid of it? is that enough? >> i don't think so, justice sotomayor. >> why not? people -- where there's the knock on the door, is the normal human reaction to walk into the other room and shut the door? >> the person might not -- >> it's unusual behavior, isn't

it? >> the person doesn't have to come to the door. they might come to the door. they might ignore. >> is that a common experience that you knock on a door and all you hear is somebody walking out of the room and shutting a door? >> i mean -- >> i don't recall this ever happening to me. maybe -- maybe i'm a likable fellow and people open the door. [laughter] >> i mean i think that that's -- that's certainly a lawful option that somebody has when the police police officers knock at their door. >> they could say go away. they could do a lot of stuff. walk in the other room and shut the door. that's strange. >> i guess some people might if they don't want to give consent. i think in order to go in based on the exigent circumstances, the police would have to be able to articulate to a court that they objectively, reasonably believed there was destruction of evidence. >> what was that they heard? it was vague.

they heard movement. what kind of movement? it said nothing about toilet flushing. >> justice ginsburg, it's our position that the court should assume there was exigency in this case. the respondent's brief and opposition, he argued there was insufficient exigency. he nonetheless questioned on whether the police created exigency would be okay under the 4th amendment. the solicitor general says the court should assume there was exigency, and reverses and demand to the kentucky supreme court on whether the exigency existed. the trial court in this case certainly found the movement inside the apartment was enough for the officer to conclude that somebody inside was destroying evidence. the kentucky supreme court assumed that was so in order to reach the question presented in this case, that the court grant

ed on. >> ms. o'connell, you say as long as each step is lawful, that's sufficient. each stay the way the 4th amendment, we are asking whether each step is reasonable. what some courts have done, this was not the approach of the court below, what some courts have done is to say we also ask a more holistic reasonable question. we say is the whole process by which the police operated with respect to this person reasonable? so, for example, we might say, you know, was there time to get a warrant or did it look like the police were just -- they preferred not to have to deal with the magistrate? what's wrong with that sort of standard? in addition to asking whether each step is reasonable, to say, look, it's the whole pattern here of what the police did to come up with this evidence reasonable. >> i think the problem with that test, justice kagan, is that

police officers have options of how they can conduct searches and seizures. getting a warrant is one way that they could do that. getting consent to conduct a search or seizure is another way. there's no justification in the court's presence for requiring police officers to choose one of those options over another if both options are lawful. in this case, the police officer knocked on the door, not sure which apartment the person that they were pursuing fled into in order to determine whether that was the correct apartment. there's no reason why they needed to get a warrant before knocking on the door and seeking cooperation of the people inside. >> is it your position that the police can do anything that's lawful? even if the purpose of doing so is to create exigent circumstances? >> yes, i think that under this -- the way this court has interpreted 4th amendment warrant exception, as long as there's no violation of the 4th

amendment, this is okay. the police officers can rely on any ensuing -- >> the question presented in the blue brief used the word impermissible. we're talking about unlawful. i take it there's a difference in those? or no difference? >> well, yes, there is a difference. i think that that coming up in respondent's argument, for example, if the police officer said i have a warrant, let me in, if he didn't as in thumper v. north carolina, that's okay as long as the suspect reacted by destroying evidence instead of coming to the door. >> what are the objections to adding in the alternative or in bad faith? >> justice breyer, the objection to that is simply that in all cases that are founded upon probable cause that are not

programmatic searches that are conducted without any individualized suspicious, this court has repeatedly rejected prongs of the 4th amendment test that rely obvious the subjective -- >> objectively what we are trying to rule out they hitch and get the bright idea, the police will go knock on every door. you know? what about that? i'll objectively determine bad faith. >> i'm sorry. i don't -- >> my point is a solely unlawful test would allow the police to get into the habit of just knocking at every door. but if you say that also it has to survive a bad faith test, where bad faith is objectively not subjectively determined, then you will rule out the possibility of the police hatching, which i don't know if they would, but hatching such a plan. >> i guess it's not totally

clear that bad faith would mean -- >> there are circuit that is have adopted a bad faith test with other things than the unlawful. the second circuit uses only the word unlawful. i thought we took this case to iron out that discrepancy. if we did, i'd like to know your objection to ironing it out by taking the second circuit test and adding on an objectively determined bad faith rule? >> justice breyer, i don't know what it means to act in bad faith in a case like this. >> maybe it could mean having no reason other than knocking on the door other than to create exigent circumstances. >> well, justice alito, i think it would be difficult to determine objectively -- >> the police say i don't want to get a warrant. it's such a bore. we have other things to do. i have a great idea.

let's knock at door. and then as long as he starts moving around, i know what he's doing into the bathroom means. and we'll hear that and we'll be able to get in. hey, great idea. okay. now suppose that's -- >> i think there's already a significant risk built into the 4th amendment that police officers, if they knock on the door and don't hear somebody destroying evidence inside, they are going to have to leave and get a warrant. i think that's enough. >> you don't know that they are destroying evidence unless you have reasonable to believe that there's contraband inside. i mean the hypothetical is an unrealistic one. they knock on the door. somebody moves inside. >> no, no, i mean to add, and, in fact, there's probable cause. he smelled the marijuana. i was just trying to stick to the relevant point. >> that's a different hypothetical. >> okay. add that. >> they knock on every door under which they smell marijuana. >> correct, that's what i mean.

i don't always spell it out. >> i think there is -- the court shouldn't be concerned and certainly not concerned enough to adopt a bad faith or subjective motivation prong to a test that creates. >> plus, what makes that different than knocking on the door and saying open the door or i'm going to kick it in? you are saying that's lawful. because under the person submits -- you are suggestions there's no coercion in that whatsoever. >> that's true. justice sotomayor -- >> why wouldn't that objectively be bad faith if what we find out is they now have a tactic which is they go through the building and every time they smell marijuana, hash, or i don't know with crack cocaine smells or not when they are smoking it, whenever they smell something, they just do that? >> i think the fact that if the

person actually does what the police officer says and answers the door, we'll mean the evidence would be excluded as a coerced content search is enough of a deterrent. >> there's no bad faith measure. and lawfulness is defined by physical seizure. if we have cases that suggest something else, the command to submit, your argument would be loss; correct? >> i think -- >> thank you, ms. o'connell. >> ms. drake? >> mr. chief justice, and may it please the court, the odor of burnt marijuana coupled with officer cause, cursory, and equivocal testimony about the sounds of movement.

he couldn't discern exactly, and his training and experience led him only possibility to conclude with consistent with the destruction of evidence is insufficient to establish exigent -- >> well, -- >> i'm sorry. you are describing what you think the evidence was to support exigency. and the suggestion that we've heard on the other side, that's an issue that can be addressed on remand once we correct the state court's error in that the police cannot create exigent circumstances. i don't know it's terribly relevant what the underlying facts about what they heard was. that would be relevant depending or not on what the opinion says. >> it's relevant because it goes to other exigent circumstances existed. and as to the question of whether a remand would be appropriate in this case, the question of whether exigent circumstances exists is logically antecedent in any

created exigency case. >> it's not at all. the court said i don't care if exigent court circumstances exists. i don't care whether they were or not. the legal standard is anti-dee dent to the application of the facts. >> there's no point into deviling whether the exigency was created by the police if there's no exigency to begin with. >> i think the court is taking the question in the question of whether or not the police may create exigent circumstances and use those exigent circumstances to enter. whether or not they were exigent circumstances because of the sound as it seems to me a consider question. >> the other request of this is where. the case has already been dismissed. there's no potential for further proceedings here. there is no. >> sure this is.

it is dismissed because the state supreme court held you can't bring this evidence in. if we say, oh, yessing you can. then the issue becomes live again. >> that conclusion is dependent on the notion that in an indictment is merged with the judgment such that a decision in the common law favor in this case would vacate the decision of the kentucky supreme court, which vacates the underlying suppression order. there's no -- >> this is the argument that you presented to us in the letter; right? >> yes, your honor. >> yes, we nonetheless decided to have argument. >> yes, your honor. >> maybe it would be your case. but maybe it would be best to move on to the legal issue. >> if we move to the question of whether the police has created exigent circumstances, it's important that we are all operating on the same understanding, the facts in this case. this case does not involve a

simple knock at the door. and the distinction is important. in this case, at 9:50 p.m., the officers banged on the door as loudly as they could. >> did the trial court make those findings? i know that you said it in your brief, i thought i read the trial court record. i know they knocked loudly. what else did they do? >> yes, this is located at the appendix to the petition in the bottom of page 3a carrying on to 4a. the trial court found detective maynard attempting to locate and arrest the suspect in question 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 persons inside. officer cobb testified at the suppression hearing.

this is at page 22 of the joint of appendix. detective maynard made contact with the door, announced our presence, banged on the door as loud as we could, announced police, police, police. this is not the case where -- >> no open up. i thought you said earlier they said open up. >> yes, officer cobb later goes on to explain, this is on page 24 of the joint appendix. detective maynard with sergeant simmons, we explained to them, referring to the occupants of the apartment, we were going to make entry inside the apartment. >> is that after the exigent or the alleged exigent circumstances were presented? so that's after they heard what they thought, and i know you disagree, was the destruction of evidence? >> it's unclear from the trial court's factual finding what the order of events was. the trial court found banged on

the door of the apartment, identified themselves as police officers, and -- >> now is there that unlawful? is knocking loudly on the door unlawful? >> it's unreasonable, your honor. >> is it unlawful? is saying open up, police, is that unlawful? >> well, it's certainly not unlawful in the sense that it violates any provision of the penal code. this is the 4th amendment case. >> the problem that i have is there are a lot of constraints on law enforcement. the one thing that it has going for it is that the criminals are stupid. and we had a case some years ago which the issue was whether the washington police could enter buses arriving from the south and randomly ask the passengers

do you mind if we look in your luggage? and the mules who were carrying marijuana were stupid enough to oh, of course, just to show they had nothing to fear. and an enormous number of arrests were affected in that fashion. we didn't say that's not fair, because you are taking advantage of the ignorance of these poor criminals. we said that's perfectly okay. and it seems to me the same thing is going on here. these people could have answered the door. there's a policeman knocking on the door. open the door. what do you want? well, get a warrant. shut the door. they didn't do that. but everything done was perfectly lawful. it's unfair to the criminal? is that the problem? i really don't understand the problem. >> i have two responses to your honor's questions. the first is that -- and along with the notion that criminals are stupid.

that's why we get all of the criminal cases. there is no difference between what happened in this case and how an innocent person would respond. recall officer cobb's testimony is that after banging he heard movement. any innocent person at 10 at night would have to move -- >> could i ask you this? it might make a difference to me whether the police demanded entry prior to the time when the alleged exigent circumstances arose. and the only testimony on the point that i am aware of is on pages 22 and 23 of the appendix where the police banged on the door as loud as they could, and announced police, police, police. detective maynard banged on the door and said this is police. anything more in the record? any evidence that prior to the

time when they heard what i alleged heard, they said open the door? >> the portion of the joint appendix that i quoted to the court, we explained to them we were going to make entry. it appears on page 24. if your honor keeps reading. >> right. we knew there was possibility something that was going to be destroyed inside the apartment. at that point, detective maynard -- this is after they heard the sounds, after they claim to have heard the sounds. >> yes. officer cobb's testimony suggest that the demand came after they heard the sound of movement. the finding by the trial court, however, is that this was all happening simultaneously and in very quick fashion. >> is there any evidence of that? did anybody else testify to what happened? >> no, your honor. officer cobb's testimony was all of the commonwealth offered. but the chronology of the demand is not dispositive in this case.

because the demand itself is not dispositive. the demand removes any doubt that the officers were not seeking a consensual encounter. but you still have the behavior of banging on the door -- >> well, does it turn on how loudly they knocked? they just knocked on the door and say this is the police. is that -- is there anything wrong with that? >> it depends entirely on whether a reasonable person would interpret that behavior as the officer conveying the impression that entry was eminent and inevitable. this feeds back to justice scalia's question. what is unreasonable about what the officers did here? >> what was there here to make a reasonable person believe that entry was eminent and inevitable? if all that's done is to knock on the door and they say police, police, police, this is the police. maybe it turns on how loudly they spoke, or how loudly they

knocked. is that the point? >> that is the point. it's relevant criteria. >> it seems to me, you are trying to change the case. i mean this is not a case where they come in and in effect demand entry. my understanding is that the issue in the case is whether or not after a request for entry they can then base probable cause in dispensing with the warrant based on what they hear from behind the door. i know you think the -- whatever they hear is perfectly innocent. but the issue is when they knock on the door, police or can we come in or whatever, and then they hear that. the activity behind the door. they have reason and can enter. now seems to me what you are argues is they did something else. they banged on the door. yelled police. it wasn't simply knocking on the door and seeking entry.

and maybe right again on the facts. it seems to me that's for later on. i wanted to know what your position is on whether they can assume, at least for me, they knock and say can we come in, or knock and say police. no demand to get in. >> if i understand your honor's question, the officers are engaging in what we would call a true knock and talk. they are seeking -- they are on -- the scenario is such that no one would doubt the consensual encounter. our position is because that behavior is reasonable, it is not made unreasonable by the fact that evidence maybe destroyed. so suppression would not be the semidy. >> -- remedy. >> all right. you agree that the court below is wrong is irrespective how the police behavior, if it is reasonable to see if their tactic will create exigent

circumstances. i would think it's reasonably foreseeable when you knock on the door and say police, somebody might shout out hide the pot. all right. if that's reasonably foreseeable, says the court, then that violates the 4th amendment. but we have the second circuit that says as long as the police behaviored unlawfully -- lawfully -- lawfully, it does not violate the 4th amendment. we have the first circuit that has the bad faith test and unreasonable or improper test. we have the 4th and 8th circuit that yet have some different kind of tests. one the things i'd be interested in hearing your view on some point is just what the chief justice said. assuming from your point of view, this is a hypothetical case. nonetheless, we would like your view on which of those tests or other test is the appropriate test and why. that was the question that he started with. and justice ginsburg started

with. and i'd like your view on that. >> the appropriate test that we propose, under our test the police acted unreasonably when they conveyed to the impression to reasonable person that entry is eminent and inevitable. our tests follows from the 4th amendment requirement that people in their homes deserve precision. by conveying that entry is eminent and inevitable, the police are -- they don't have judicial authority for doing that. there's no warrant. they are engaging in behavior that would confuse an ordinary citizen and make him or her uncertain about whether the assertion of right to privacy and security in the home -- >> well, ms. drake, if that's the case, you are in some way agreeing with the government. you too are saying there's a lawfulness test. you are just disagreeing about what's lawful.

>> to the extent that lawful is defined as synonym for unreasonable, we would agree. there is area of agreement between the commonwealth and i. and it is on the issue of this knock and talk. of course, police officers need to have the investigative tool of a knock and talk. there's nothing wrong with an officer attempting to gain consensual entry. our position is that that's not made unreasonable by factors outside the officer's control, no matter how foreseeable. >> what took this outside of the category of knock and talk. >> this is not a knock and talk, this is a knock and announce, or knock and demand which is how the trial court characterized it. >> i don't know about the labels. what did the police do that weren't beyond what would be permitted on your understanding of the pure knock and talk? the volume of the knocking?

>> yes. it's the banging, not knocking, it's announcement -- >> banging not knocking? >> banging, not a soft -- not the knock that you would expect a reasonable person to engage in in the ordinary discourse with another person. or that you would expect from an officer attempting to cane consensual. >> you might have considerable support on the court for the proposition that if the exigent circumstances is created by unlawful activity by the police. which would include conveying the impression that they are about to kick the door in. then you have a different case. but i thought the case we had before us is what if the policee officers are behaving perfectly lawfully and they are not threatening to kick down the door. and they smell the marijuana and then they hear the motion inside. does that justify their going

in? that's what i thought we took the case for. that's a different question. you are trying to make the police officers actions unlawful. and i will stipulate if their actions were unlawful, you have a different case. and probably the evidence would have to be suppressed. i didn't think we were hear to decide whether they knocked too loud, whether they threatened to kick in the door. the opinion below says if they created the exigent circumstances, whether they did so lawfully or unlawful, they cannot go in. and that's -- that's the issue. >> what the officers did the functional equivalent of saying we're going to kick in the door. i wouldn't go that far. but it's the functional equivalent of a knock and announce which is exactly the behavior the police engage in when they are executing a warrant. and it is that behavior that conveys the impression that an occupant has no authority to

keep the officers at arm's lent. >> it's the bases for the decision. the court didn't say the police officer were behavioring as though they had the warrant and were about to kick in the door. the opinion below just said, yeah, there were exigent. but they were the result of the police knocking on the door and saying we're the police. >> i don't disagree that the lower court did not analyze the problem in this fashion. did not analyze the question in this fashion. but it's a legal question that calls for an examination of how a reasonable person would interpret the behavior. >> what does that have to do with the police officers lawfulness? now i -- i grant you that attempting that there's something troubling about the police attempting to coerce entry as opposed to requesting

entry. but as my colleagues have pointed out, it's not clear from this record which of the two the police did. in a loud voice or not. you are saying just a loud knock, a scream police, that that would be coercing. that's how i'm reading you. or are you going further and trying to say that it is a matter of fact the testimonies critically clear they knocked loudly, said police, and said let us in or we're going to bust it? >> the factual record is clear. officer cobb testified he banged as loud as possible, this is not at the normal knock that the officer engages when he's seeking consent. consent to search. this is at 10:00 at night. he's saying we announced police, police, police, exclamation point. that's how it appears in the record. again.

>> just to assume for my sake that the police comes to the door. it's about 10:00 at night -- it's 6:00 at night. knocked quietly on the door and says we're the police. can we talk? and then there was the smell of marijuana. and then you hear the sounds that do convey to a reasonable police officer that evidence is being destroyed. at that point, can they enter without a warrant? >> yes. >> okay. >> okay. look the question presented as they raise which of the five tests currently being used by the u.s. court of appeals is proper? now you've said something about your view on that. but i'd like you to say anything else that you'd like to say about that. which of the five tests, or some sixth tests if you like, and you tell me the words that you would like us to use when we answer that question. >> i would like the court to adopt the test that we have proposed. >> which is?

>> which is that an officer acts unreasonably when he or she conveys the impression that entry into a home is eminent -- >> no, the test that you are using there. the keyword is unreasonable. the reason that you choose the word unreasonable, rather than the second circuit's test of unlawful is? >> because frankly i'm not sure what that means. and i think that's become clear in the context of that briefing. does unlawful mean the police violated a provision of the penal code? does unlawful mean there has to be a completed fourth amendment violation? >> you don't know what unlawful means? but you know what unreasonable means? >> yes. unreasonable -- unreasonable is the touch stone of every, you know, 4th amendment case. we are saying there does not have to be antecedent completed

4th amendment violation. as is the case in any 4th amendment case, did the officers act? >> do you have any doubt that it's unlawful for a police officer to threaten to burst into a home? >> no, your honor. >> so why do you need unreasonable? if, indeed, there was a threat of eminent entry, we're going to bust down the -- if that was the threat, then it's unlawful. surely. >> yes, and that's why my answer to justice kagan's question was to the extent that unlawful and unreasonable are synonyms we would agree. now if the court is not terribly -- does not find our test convincing, the next best test we believe is a forseability test. >> your test is something that justice mentioned there are some

five tests in a different circuit. and foreseeability test is the one that kentucky supreme court uses. but does your test coincide with the test of any of the circuits? or is it different? >> our test is novel. it has not been, to my knowledge, considered by any of the other circuits. >> your test, it's not wild. it says unreasonable in the 4th amendment. probably when they act lawfully, they are acting reasonably. and not unreasonably. but it could be sometimes they are not. that's your view. >> that's correct. and by the way -- >> no test. all right. >> we are not saying that -- we are essentially saying the police shouldn't act as though they have a warrant when they don't have one. which is exactly what they did in this case. that proposition is not new. in bumper, this court made clear

if the police act as though they have a warrant when they don't have one, any consent could woue coerced. review in court is already the knock and hownations about aggressive was the demand simply in another context? on the other hand, police officers are already receiving the same instruction that they would need in order to apply our rule. which is don't act as though you have a warrant, don't engage in the functional equivalent of a knock and announce if you do not have prior judicial authority. what is appeals about our test, unlike the foreseeability test which we believe it's a refinement of, it allows for conduct by police that's reasonable at it's inception to remain reasonable regardless of the suspects response no matter how foreseeability. >> what is an example of conduct that you would consider

unreasonable resulting in suppression of the evidence that would not be unlawful? >> well, it's very hard to conceive of where the daylight would be between those terms. reasonable and unlawful. so long as unlawful doesn't mean violation of a penal code provision, and as long as it doesn't mean the commonwealth is suggesting there has to be, the defendant would have to first demonstrate the police were seized in order to be able to convincely argue that the search was unreasonable. >> you can't give me one example, conduct that's unreasonable under your test that would not be unlawful? >> i can't -- i can't think of one, your honor. >> the problem is that as reasonable as the test is, it's not the test that was used by the court below.

and you want us to affirm the decision below. which simply said if the exigent circumstances are the consequence of the police action, whatever the police action was, lawful, reasonable, whatever, the evidence has to be excludeed. how can we affirm that decision as you want us to do? even applying your test? >> the factual record in this case is fully developed. how the reasonable person would interpret is the mixed question of law and fact. this court would review the court in that record, de novo, anyway. in that regard, it's no different than any other case that makes it's way to the court, where the court is asked to review the record and make a determination on how the ordinary person could report the conduct. it's unreasonable and unlawful for the purposes of the 4th

amendment for the officers to convey the impression that it has the authority of a warrant when he doesn't have one. and when that prompts as it obviously would an occupant of a home to move and then that movement is used as evidence that exigent circumstances exist and warrantless search is justified. if this court to, you know, adopt the framework that the commonwealth is arguing for, the exception to the warrant requirement would be the rule. so we would ask the court to affirm the decision of the kentucky supreme court. >> thank you, counsel. mr. farley, you are four minutes remaining. >> my time is short. i'd like to make a few quick points. i believe mr. chief justice and justice kennedy were absolutely correct. the question before this court is can lawful police action impermissible create exigent circumstances? and the answer to that question

is no. there is never a circumstances in which lawful police behavior under a 4th amendment analysis can imper miss blue create exigency. i would point the court to hori d, we should not punish police officers were attempted 4th amendment violations, or 4th amendment violation that is do not reach fruition, because it does not serve the point. >> one the points of the 4th amendment is to ensure when people search the home they have a warrant. there are exceptions to that. if there's one place where the warrant requirement has real force, it's not home. i think the concern here is you have some strong arguments on your side, but the concern here is that your test is going to enable the police to entrait -- penetrate the home, search the home without a warrant, without going to see a magistrate in a

very wide variety of cases. all the police really have to say is we saw pot, we heard noise. or we think there was some criminal activity going on for whatever reason, and we heard noise. how do you prevent that from happening? how do you prevent your test from essentially eviscerating the warrant requirement in the context of the one place that the 4th amendment was most concerned about? >> well, justice kagan, i would disagree with you. i don't think it would. i believe what the commonwealth is asking for is no more than or no less than reviewing courts have done. looked to determine whether there was a 4th amendment violation, whether there was unlawful entry, unlawful seizure, or whether there was coercion that then they gained consent. if those things occurred, they are clearly 4th amendment violations. there would be a suppression of the evidence. >> it wouldn't technically be a 4th amendment violation, would

it, if the police gave the impression that they had a warrant and were about to kick in the door? is that 4th amendment violation in and of itselfs? >> i don't believe so. >> so the unlawfulness test would not prevent that? >> no, justice scalia. >> it would not. >> okay. maybe we have to come up with unreasonable test then. >> i believe if the officers demand entry and there's no response, there's no completion. >> fully okay for officers to do that? pretend we have a warrant? that's perfectly okay? >> i believe there are large restrictions and prohibitions to that that officers are well aware of, if officers does answer the door, they are going to be suppressioned. >> what they do is say they are unlawful. >> if they demand entry, and

entry is given, that is a violation. they have demanded entry without a warrant. in that case, suppression was to have entry and the evidence would be suppressed. >> they can't knock on the door and say we have pizza; right? >> no. >> okay. >> we would just assert under the lawfulness test, we aren't asking for anything more or less than the court has done. this is a simple 4th amendment analysis. there was no demand in this case. this was a simple knock and announce case, regardless of the time of day. there was no coercion, there was no seizure, there was no consent given. officers should not be held accountable for unlawful reactions by suspects. >> thank you, counsel. you have have noticed that justice kennedy left the bench a few minutes early. he is going to tucson to represent the court as the circuit justice for the 9th circuit at the memorial service there. he will review the tapes and

transcripts of the rest of the argument and fully participate in decision. this case is submitted. [gavel] >> today is the 25th anniversary of the space shuttle challenger accident that killed seven astronauts. you can see the ceremony saturday night at 8 eastern on c-span. >> this sunday we'll spend an hour talking with former president bush about his life and new book "decision points." here's a portion of the interview. >> you are through with politics? >> yes. >> define that? >> i don't want to campaign, i don't want to be a money razer, be on the talk show second guessing the current president. i think it's bad for the country to have a former president