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connect with us on twitter, facebook and youtube and sign up for a scandal bullard e-mail at c-span.org. >> recently the supreme court heard oral arguments in the case of kentucky v. king. it concerns the question of which emergency situations allow the police to enter a home without a warrant to. this is an hour. >> we shear arguments in case 091272, kentucky v. king. mr. farley. >> may it please the court, the issue for you today of whether or not police can create exit and circumstances arises from the improper suppression of reasonably seized evidence after a reasonable warrantless entry. the tasks set forth by the kentucky supreme court is improper for several reasons.

the first of which is this court has routinely held that the intent of police officers one affecting a warrantless entry is irrelevant. >> where does the supreme court say that it was looking to a subjective state of mind on the part of a police? >> the supreme court's first test is in our petition on page 26 -- [-- i am sorry. discussion starts on page 44 a and carries over to 46 day.

first question of their test is whether or not officers made an attempt to purposely e. vega work requirements. >> that didn't apply in this case. >> that is correct. the second prong of the test is whether or not the actions of the respondents in this case would have been foreseeable by the police officers before they knocked the announcement. the problem -- >> why is that subjective? why isn't that foreseeable to a reasonable police officer? >> it isn't directly is objective inquiry but police officers are trained to expect and foresee illegally activities so then they may carry out the duties of their job in protecting the citizens. so it reasonable officer will

always for seat the illegal exodus in response to his action whether it is walking down the street or knocking on your do. their reasonable officer will always foresee electricity and for that reason the kentucky supreme court's test is completely unworkable. said overall the other circuits at lower courts have gone the tests that also attempt to add an extra exception, and unwarranted closure of the exit and circumstances exception then narrows the use of that exception by police officers. the tests that the commonwealth would propose is a simple lawfulness test. under this test as long as an officer behaves lawfully there should be no suppression of evidence seized. >> so you have an apartment building where police know from experience there's a lot of illegal activity and drugs,

every two weeks they walk through and not on every door and wait for evidence of drugs. is that right? >> i would say yes. if there is probable cause -- >> probable cause comes when they hear flushing and hiding behind doors. >> i would assert there are two separate issues here. you must have probable cause separate from the existence of exits and circumstances. in this case there was probable cause due to the smell of marijuana. >> if they go to the apartment they snapped at every door and when the strong smell of marijuana emanates from the door they go through. but they do it as a matter every two weeks and they don't knock

on every door but knock on the doors were they smelled marijuana. they do that in all those things where they suspect drugs being stashed? >> under simple lawfulness tests since they have not violated the fourth amendment prior to the residency arriving there would be no need to suppress any evidence. that would be perfectly fine for officers to do that. it may not be the -- >> the chief justice when he said in the solicitor general's position that police can routinely knock at a door and wait to see if they hear it with flushing. i don't know what malines, but your answer would be yes. >> yes. if probable cause exist. >> why do you need probable

cause? what does it have to do with anything? >> under the fourth amendment for reasonable warrantless search to occur -- >> before they can go in. the third toilet flushing. >> they have probable cause -- >> we have two different probable causes causing me some confusion. understand the requirement of probable cause if they hear the sound of evidence being destroyed, or are you talking probable cause that there's something going on in the first place? >> there are two issues. they must have probable cause aside from exit and circumstances. >> to knock on the door? >> no, they can -- [talking over each other] >> take us through chronologically. police are walking through the hallway. there's no probable cause. >> knock on the board. >> they smell marijuana and oxon

the door. when does probable cause a rise? >> the smell of marijuana would give probable cause to search. once he knocks on the door and hears noises consistent with destruction of physical evidence, an exit and see has arrived. now the officer has both probable cause and evidence circumstances. >> i don't understand why the smell of marijuana is necessary. you don't need probable cause to knock on a door. knocking on the door is perfectly lawful. if it is just a lawfulness test the knock is fine. then when you hear whatever it is you hear that creates exits and circumstances whether it is toilet flushing or noise, that too, the ability to go right in. if it is just lawfulness you don't need marijuana. >> we are confused. in order to enter with the kitchen circumstances you must also have separate probable

cause. >> beyond thinking -- [talking over each other] >> it might be somebody going to the toilet. >> it could be very well so. you have to suspect the reason the toilet is flushing is someone is trying to get rid of evidence and for that to be the case you have to have smelled the marijuana. so there's only one probable cause. >> yes. the agencies circumstance is a reasonable belief based on the totality of the surrounding circumstances. given that the officers had a reasonable belief, they had reasonably leaf this is the doorway he entered and coupled that with the noises they heard. >> just go back over -- as far as my understanding from this record, is it never shown that

the dealer the police were following was aware he was following, and gleaning from them that it is not part of the question you presented me with. on the exit and circumstances. he wasn't asked to. did you know the police were following you? >> that is correct. however, we cannot divorce the officers's chase of the suspect regardless of whether he knew of their hot pursuit or not. we cannot divorce those facts from what officers knew when they knocked on the door. >> or you can. there's nothing illegal about walking down the hall and knocking on somebody's dorr. it is a police officer, you say i smell marijuana and you hear the flushing, then there's

probable cause. you don't need this business about the dealer. >> absolutely correct. i was speaking in terms of this case saying there was ample evidence that these circumstances existed here. >> may i ask a question that goes back to what you said, you clarified very nicely that there has to be probable cause to think there's something wrong going on in the apartment and you said at that point when the strong smell comes from the door. at that point police would go and get a warrant. then they knock on the door. there is a strong presumption

that the fourth amendment requires a warrant. restaurant preference for that. so why in this situation is the rest first response of the police instead of knocking, once they knock they alert people. let's get a warrant and come back. >> officers testified under these circumstances they believed they were in hot pursuit of this felon. so they believed he had entered his apartment and he was destroying evidence. >> how is this holding by us, not become a symbol warrantless entry in any drug case? meaning police knocked on the door, suspect doesn't answer, gets up and moves to their bedroom? there is no noise that was described by this police

officer. was simply not answering the door and moving. if that is all it takes any police officer will say in my experience most drug dealers destroy the evidence. >> hard we just simply saying they can just walk in whenever they smell marijuana? whenever they think there are drugs on the other side. why do we even bother giving them a warrant? >> i would disagree with you. when determining whether evidence circumstances exist you look of the totality of the circumstances. there would be a myriad of cases in which a court would determine based on this testimony and the noises that were heard with no surrounding circumstancess that evidence circumstances may not have existed. >> what if the defendants here

had not flushed the evidence down but had answered the door and said yes? with the police have been able to do anything just because they had smelled marijuana? >> they could have sought a consensual encounter. [talking over each other] >> then the officers would not have been able so basically the police were taking advantage of the stupidity of the criminal. is that right? [talking over each other] >> there's not a requirement to inform, a right to denial but officers could not have forced their way into the home. >> we are going to kick the door in if you don't open? >> that is still under the

lawfulness test unless the occupant submit that authority and mortgages to the door and allows entry. >> after they heard the movement inside, you don't kick it in just because you smell marijuana. can you do it because you knock on the door and smell marijuana so you kick the door in? >> the noises they heard are consistent -- [talking over each other] >> they would have to obtain a warrant at that point. if the person did not come to the door and no exit nc arose then officers would still obtained a warrant. >> this may be rudimentary but tell me the evidence all is being destroyed where marijuana isn't being smoked isn't very good. >> i would tend to agree with you. i know this court and johnson stated the smell of burning opium was not a discussion of the evidence.

the only thing they could have obtained were the fumes or vapors. i agree with that personally but from a legal viewpoint the simple smell of burning marijuana -- >> the distinction being destroyed and being consumed. >> you mentioned johnson, it is the same thing. a hotel instead of men apartment building, what was it? >> what occurred in johnson is different from what occurred here. what occurred in johnson was the officers forced their way into the occupant's a hotel room. >> so you smell marijuana? >> knocked on the door and came to the door and forced their way in. there was no demand for entry or

asked for consent to ender and consider yourself under arrest. they searched and held her under arrest based on the evidence. >> i thought they smelled lawyerss before attempting to get in to the hotel room. there was something about noises. >> she actually came to the door. officers forced entry. here we have no forced entry. johnson and at the dnc did not exist. here and and the density does exist. if there are no further questions i would like to reserve the remainder of my time. >> thank you, farley. miss o'connell. >> if police officers asked thoughtfully in conducting their investigations they may respond to any evidence these that arise. it is up to police officers to

determine how they will collect evidence in any given case as long as they stay within the confines of the fourth amendment. securing a warrant -- >> does a ruling in this case that any lawful conduct by the police mean that the police knock, somebody gets up on the other side and walked through a closed door and closes the door in the back and police say in my experience it is consistent with 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. >> why not? when there is a knock on the door is a normal human reaction to walking to the other room and shut the door? that is peculiar behavior. >> a person doesn't have to enter 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 a room and shutting the door? a don't recall that ever happening to me. i am a likable fellow and people open the door. >> it is a lawful option somebody has when police officers knocked on their door. in this case -- >> they could say go away and do a lot of stuff but walk in the other room and shut the door? that is strange. >> some people might do that if they don't want to give consent to police and 3. to go in based on an exit and circumstance the police would be able to articulate to a court that they objectively reasonably believed there was destruction of evidence occurring. >> it was kind of vague. what kind of movement?

>> it is our position that the court should assume there was an exit and see in this case. the responding opposition, he argued there was insufficient evidence of exigency on the question of whether police created exit and see would be ok under the fourth amendment. the solicitor general believed the court should assume there was exigency and on the question presented, reverses, it should remand to the supreme court for determination whether an exit and see existed. the trial court found the movement inside the apartment was enough for the officer to reasonably conclude somebody was destroying evidence. the kentucky supreme court assumed that was so in orders to reach the question presented. >> if i could ask about the government's proposed standard you say as long as each step in the police conduct is lawful,

that position, each step would be the way the fourth amendment works, each step is reasonable? what some courts have done in addition to that, this is not the approach of the court below but what some courts have done is to say we ask a more reasonable question. we say is the whole process by which the police operated with respect to this is unreasonable so for example we might say was there a time to get a warrant or did it look like the police preferred not to have to deal with the magistrate? what is wrong with that sort of standard? in addition to asking if each step is reasonable to say it is the whole pattern of what the police did to come up with this evidence reasonable? >> the problem is that police officers have options how they can conduct a searches and seizures. getting the award is one way to

do that. there is no justification for requiring police officers to choose one of those options over another if both options are lawful. in this case the police officers knocked on the door not sure which apartment the person they are pursuing fled into in order to determine whether that was the correct apartment. there is no reason why they needed to get a warrant before knocking on the door and seeking cooperation. >> is it your position that police can do anything that is lawful even if the purpose of doing so is to create kings. >> yes. the way that this court has interpreted fourth amendment warrant exceptions as long as there is no violation of the fourth amendment that is okay. the police officers can rely --

>> the question presented is the word impermissible. we are talking about on lawful. i take it there is a difference. or no difference. >> there is a difference. that comes up in the argument that if there was an impermissible demand for entry for example a police officer said i have a warrant, let me in, even though he didn't, that that could still be ok under a lawfulness test as long as the suspect reacted by destroying evidence instead of by coming to the door and going about -- >> what are the objections to adding in the alternative? >> the objection to that is simply in all cases that are found upon probable cause that are not programmatic searches conducted without any

individualized position this court repeatedly objected prongs of a fourth amendment test that rely on -- >> what we are trying to rule out, they hitch this bright idea that police would go knocking on every door. what about that? >> i don't -- >> my point is, be unlawful this test would allow police to get into the habit of knocking at every door but if you say that also it has to survive a bad face test where bad faith is objectively, not subjectively determined, you rule out the possibility of the police action which i don't know if they would, hatching such a plan. >> it is not totally clear what that would mean. >> to adopt a bad faith test in the alternative with other

things than the word unlawful. the second circuit only uses the word unlawful. we took this case to iron out this discrepancy and if we did i would like to know your objection to ironing it out by taking the second circuit test but adding up on an objectively determine bad faith ruling. >> i don't know what it means to act in bad faith and a case like this. >> maybe it could mean having no reason for knocking on the door of her van to create exit and circumstances. >> it would be difficult to determined objectively -- >> the police say i don't want to get a warrant, we have other things to do. i have a great idea. let's not get the door and as soon as he starts moving around

i know he is going into the bathroom, what that means and we will hear that and be able to get in. now suppose -- >> i think there is a significant risk built in to the fourth amendment that police officers if they knock on the door and don't hear somebody destroying evidence that they are going to have to leave and get a warrant. >> you don't know that they are destroying evidence unless you have reason to believe there is contraband inside. the hypothetical is an unrealistic one. [talking over each other] >> there is probable cause. i just was trying to stick to the relevant. >> that is a different hypothetical. they knock on every door under which they smell marijuana. >> that is what i mean. >> the court shouldn't be concerned about adopting a bad

faith or subjective motivation to a test it creates. >> what makes that different from knocking on the door and say open the door or i am going to kick it in? you are saying that is lawful because you are suggesting there is no coercion in that whatsoever. >> that is true. >> so why wouldn't that objectively be bad faith if what we find out is that they now have a tactic which is they go through this and every time they smell marijuana-or i don't know if crack cocaine smells when they're smoking it but whenever they smell something, they do that. >> the fact that if a person does put the police officer -- and answers the door will mean the evidence will be excluded is

enough of a deterrent. >> there is no bad faith measure whatsoever in your analysis, defined by actual physical seizures. so we have a command to submit, your argument would be lost. >> that is right if the person submits -- [talking over each other] >> mr. chief justice and may it please the court, the elder of burnt marijuana coupled with cursory and equivocal testimony about the sound of movement he couldn't discern exactly and his training and experience led him possibly to conclude consistent

with destruction of evidence is insufficient to establish -- >> you are describing what you think the impetus was to support exigency and a suggestion from the other side is that is an issue that would be addressed on remand. once we corrected the state court's error, the police cannot create exit and circumstances. i don't know if it is evident with the facts they heard. that will be relevant depending or not depending on the business. >> it is relevant because it goes to other exit and circumstances and as to the question of whether a remand would be appropriate in this case the question whether exits and circumstances existed was logically antecedent in any exigency case. >> it is not at all. the court said i don't care if negligence circumstances existed. you cannot create exit and

circumstances so i don't care whether they were or not. the legal standard is antecedent to the application of that. >> there's no point delving into whether exits and c was created because there is no exit concede to begin with. >> i think the court is interested in taking the case and whether or not police may create exits and circumstances and use those exits and circumstances. whether or not there were exits and circumstances because of this seems a subsidiary question. >> the other problem with remanding this case for further determination on this issue as the court is aware of the procedural posture is troubling, the case has already been dismissed. there is no potential for further proceedings. >> it was dismissed because the state supreme court held you can't bring this evidence in. if we say yes you can be issue

is live again. >> that is dependent on the notion that an indictment is merged with the judgment such that the decision will come in favor in this case would be the decision of the supreme court which vacates the underlying suppression order. there is no authority for the notion that indictment and judgment emerge as a matter of kentucky law. >> this is the argument you presented to as in the letter. and yet we nonetheless decided to have argument. so maybe it would be your case but best to move on to the legal issue. >> if we move to the question of whether the police created ads and circumstances it is important that we are all operating on the same understanding of fact in this case. this does not involve a simple knock on the door. the distinction is important.

in this case at 9:50 p.m. the officers banged on the bourse as loudly as they could. >> if the trial court makes those findings sign of that you said it in your brief and i thought i read the trial court's record, i know they knocked loudly. what else do they do? >> this is located at the attendance of the petition at the bottom. the trial court found detective maynard who was accompanying officer breezeway and the on the doorway and demanded the door be opened by persons inside. officer, testified at the suppression hearing, stage 22 of the joint attendance, detective maynard made contact with the

door. banned the on the door and announced police. >> i thought you said open up. >> later goes on to explain and this is on page 24 of the joint appendix, detective maynard with sergeant salmons, explained to them referring to the occupancy department we were going to make entry inside the apartment. >> that is after the engine circumstances or alleged negligence circumstances were presented? that is after they heard what they thought -- you disagree -- was the destruction of evidence. >> it is unclear from the trial court's actual finding what the order of events was. the trial court found bent on the door of the apartment identified themselves as police

officers. >> is any of that unlawful? is talking loudly on the door unlawful? >> it is unreasonable. >> you said unlawful. is a guy open up, police, unlawful? >> it is not unlawful in the sense that violate any provision of the penal code. the question is -- >> the problem i have is a lot of constraints on law enforcement. the one thing it has going for it is criminals are still. we had a case in which -- buses to arriving from the south and randomly acting do you mind if we looking your luggage. and the mules who were carrying

marijuana were stupid enough, 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 is not fair because you are taking advantage of the ignorance of these poor criminals. we said that is perfectly okay. it seems to me the same is going on here. they could have answered the door. open the door and say what do you want, get a warrant and shut the door. they didn't do that but everything was perfectly lawful. it is unfair -- really don't understand the problem. >> i have two responses. the first is along with this notion that criminals are stupid which is why we did these criminal chases, there is no difference between what happened

in this case and how an innocent person would respond. officer cobb's testimony was after banging he heard movement. any innocent person at 10:00 at night would have to move. >> it might make a difference to me with if the police demanded entry prior to the time the alleged engine circumstances arose. the only testimony on this point i am aware of is on page 22 and 23 of the appendix where police banned on the door as loud as they could and yellow police and detective maynard said this is police. is there anything more in the record? any evidence prior to the time they heard what they allegedly heard, a sedna open the door.

>> the portion of the joint appendix we explained to them -- >> we knew there was something that would be destroyed inside the apartment. this is after they heard the sounds. after they claim to have heard the sounds. >> officer cobb's testimony suggests the demand came after the sound of movement. finding by the trial court is this was all happening simultaneously -- >> is there any evidence of that? anybody else testifying? >> officer cobb's testimony was all that was offered. but the chronology of the demand is not positive in this case because the demand itself is not positive. the demand to remove any doubt that the officers were not

seeking a consensual in counter but you still have the -- >> does this turn on how loudly they knock? they just knocked on the door and said this is the police. is there anything wrong with that? >> it depends entirely on whether a reasonable person would interpret that behavior, the officer conveying the impression that entry was imminent and inevitable. and to justice scalia's question about what is unreasonable -- >> what would make a reasonable person believe entry was imminent and inevitable? if all they have done is knock on the door and state police, maybe it depends how loudly they spoke or how loudly they knocked. >> that is the point. they are all relevant criteria.

considering the totality of the circumstances. >> seems to be trying to change the case. this is not a case where they come in and demand entry. after a request for entry they can then based probable cause based on what they hear from behind the door. i know you think whatever they year is perfectly innocent but the issue is whenever they knock on the door, can we come in or whatever and then they hear that activity behind the door they have reason and can enter. seems to me what you are arguing is they did something else. they banque on the door and yelled police and it wasn't simply knocking on the door and seeking entry. you may be right again on the facts but i want to know what your position is on whether they

can assume, knock and say can we come in worse say police. noor say police. no demand to come in. >> they are engaging in a truth knock and talk. the scenario is no one was out there attempting a consensual encounter. our position is because that behavior is a reasonable it is not made unreasonable by the fact that evidence may be destroyed so suppression would not be the remedy. >> to you agree the court below is wrong? what they say if i read it is irrespective how reasonably the police behave if it is reasonably foreseeable that their tactic will create a exigent circumstances i would think it is reasonably foreseeable when you knock on the door very politely and say

that somebody might shout out that if that is reasonable foreseeable says the court, that violates the fourth amendment. we have the second circuit which says as long as the police behaved unlawfully or lawfully it does not violate the fourth amendment and we have the first circuit that has some sort of bad faith test, unreasonable or improper test and the fourth and eighth circuits with a different kind of test and one of the things i would be interested in hearing your view on is what the chief justice said. assuming from your point of view this is a hypothetical case we would like to review on which of those tests or some other test is the appropriate test and why. that was the question he started with and i would be interested in your view on that. >> the appropriate test is the test we proposed.

under our test, if police acted unreasonably when they convey the up -- that can treat is imminent and inevitable. our test follows directly from the fourth amendment requirement that people in their homes deserve precision by conveying the impression -- impression that entry is inevitable the police -- they don't have judicial authority for doing that. there is 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 -- >> if that is the case somehow you are agreeing with the government. you too are saying that there is a lawfulness test. you are just disagreeing about what is lawful. >> to the extent that lawful is a synonym for unreasonable, to the extender does not need to be

a completed antecedent fourth amendment violation we would agree. there is area of agreement between the commonwealth and i and on the issue of this knock and talk of course police officers need to have the investigative tool of the knock and talk. there's nothing wrong with that officer attempting to gain consentual entry and opposition is that is not made unreasonable by factors outside the officer's control no matter how foreseeable. >> outside the category of the ordinary? >> this is a knock and announce case or knock and demand case. >> i don't know about the labels but what did the police do that went beyond what was permitted under your understanding of pure knock and talk? is it the quality level of the knocking? >> it is the banging, not

knocking. >> banging, not knocking? >> not a soft -- not the knock you expect a reasonable person to engage in in ordinary discourse with another person or you would expect from an officer attempting to gain consentual -- >> you have considerable support for the proposition that if the exit and circumstance is created by unlawful activity by 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 was what if police officers are behaving perfectly lawfully and not threatening to kick down the door and they smell the marijuana and they hear the motion inside, that is when i thought we took the case and that is a different question.

you are trying to make the police officer's actions unlawful. i will stipulate that if their actions were unlawful you have a different case and the evidence would have to be suppressed but i didn't think we were here to decide that. whether they not too lao or threatened tooud or threatened to kick in the door, with it they did so lawfully or unlawfully they cannot go in. >> what they did is functional equivalence of saying we are going to kick in the door. i would not go that far but it is a functional equivalent of knock and announce which is exactly the behavior police engage in when they are executing a warrant. it is that behavior that conveys the impression that an occupant has no authority to keep the officer -- >> the basis of the decision, the court below didn't say these

police officers were behaving as though they had a warrant or were about to kick in the door. they said there were exits and circumstances that were the result of the police knocking on the door and saying we are the police. >> i don't disagree that lower courts did not analyze the problems in this fashion. but it is a legal question that calls for examination of how reasonable person would interpret the behavior. >> what does this have to do with the police officers -- i grant you that attempting -- that there is something troubling about the police attempting to coerce entry as opposed to requesting entry. but as my colleagues have pointed out it is not clear from

this record which of the two the police did. you are saying just a loud knock and scream police that that would be coercive. that is how i am reading you? or are you going further and trying to say it is a matter of fact, the testimony is critically clear they locked -- knocked loudly and said police. >> the factual record is clear. the officer testified he banned as loud as possible. this is not the normal knock and officer in gauges in when seeking consent to search. at 10:00 at night, saying we announced police, that is how it appears in the record. >> assume for my sake the police comes to the door. it is not 10:00 at night.

it is 6:00 at night. not quietly on the door and says we are the police, can we talk, and there is the smell of marijuana and here is the sound that can they to a reasonable police officer that evidence is being destroyed. >> the question presented is which of the five tests currently being used by the court of appeals is profitable? you said something about your view on that. say anything else you would like to say on that. which of the five or six tests and you tell me the words that you would like us to use when we answer that question. >> i would like this court to adopt a test that we have proposed that an officer act unreasonably when he or she conveys the impression that

entry into a home is imminent -- >> the key word is unreasonable. and the reason you choose the word unreasonable rather than the second circuit test of unlawful is? >> i am not sure what that means. that is clear in the context of this briefing. does it mean police have had violated a provision of the penal code? does it mean the commonwealth is contending there has to be a completed fourth amendment violation? >> you don't know what unlawful means but you know what a reasonable means? >> yes. unreasonable is the touchstone of every fourth amendment case so there does not have to be an end to see the completed fourth amendment violation. as is the case in every fourth amendment case, did the officers -- >> do you have any doubt that it

is unlawful for a police officer to threaten to burst into a home? >> no. >> so why do you need and reasonable? if indeed there was a threat -- of imminent entry, if that was the threat it is unlawful surely. >> that is why my answer is unlawful and unreasonable are synonyms we would agree. if the court is not terribly -- does not find our test -- the next best test is foresee ability test -- >> this is why i mentioned five tests and a different circuit,

the feasibility test in kentucky supreme court, does this coincide or is it different? >> it is a novel tests that has not been to my knowledge considered by any other circuits. >> it is not wild. it says unreasonable in the fourth amendment. probably when they act lawfully they are acting reasonably, not unreasonably but sometimes they are not. that is your view? >> that is correct. by the way we are not saying -- we are essentially saying of the police -- when they don't have one which is exactly what they did in this case. that proposition is not new. this court made clear that if the police act as though they have a warrant when they don't have when any consent would be

coerced. courts already making determinations about how loud was the knock or the demand of, simply in another context, on the other hand police officers are already receiving the same instruction they would need in order to apply our rule which is don't act as though you have a warrant, don't engage in a knock and announce if you don't have prior judicial authority. what is appealing about our test, unlike the foreseeable detest, is it allows for conduct by the police that is reasonable at its inception to remain reasonable regardless of the suspect's response no matter how foreseeable. >> what is an example of conduct you would consider unreasonable resulting in suppression of the evidence?

>> it is very hard to conceive of where the daylight would be. reasonable or lawful. so long as unlawful doesn't mean violation of penal code provision. so long as it doesn't mean -- there has to be -- the defendant would first have to demonstrate the police were seized in order to convincingly argue that the search was unreasonable. >> you can't give me one example of conduct that is unreasonable? >> i can't think of one, your honor. >> the problem is as reasonable as the test is it is not the test used by the court below and you want us to affirm the decision alone which simply said

if the exit and circumstances are the consequence of police action what ever the police action was, the evidence has to be excluded. how can we affirm that decision as you want us to even applying your test? >> defect will record in this case is fully developed. callie reasonable person would interpret the scenario is a mixed question which this court would review the decision of the supreme court in that regard any way. in that regard it is no different than any case that makes its way where this court is asked to review the record to make the determination how and ordinary person would interpret the officer's conduct. it is simply unreasonable and unlawful for purposes of an officer to convey the impression that he has the authority of a warrant when he doesn't have one

and when that prompts as it obviously would the occupant of a home to move and that movement is used as evidence that exigent circumstances exist and warrantless search is justified if this court were to adopt a the framework, the exception to the warrant to their rule. we ask this court to affirm the decision of the supreme court. >> mr. farley, you have four minutes. >> my time is short so i will make a few points. the question before this court is can lawful police action impermissibly it created the and circumstances and the answer to that question is no. there's never a circumstance in which lawful police behavior

under a fourth amendment analysis can impermissibly create an exit and see. we should not punish police officers for attempted fourth amendment violations or violations that do not reach fruition because it did not serve the point to be exclusionary. >> one of the points of the fourth amendment is to ensure when people search your home they have a warrant. there are exceptions to that but one place where the warrant requirement has real course is in the home. the concern here a you have strong arguments on your side, the concern is your test is going to enable police to penetrate the home, search the home without a warrant, without seeing a magistrate in a wide variety of cases, that all the police have to saying is 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 the eviscerating the warrant requirement in the context of the one place the fourth amendment was most concerned about? >> i would disagree with you. i don't think that it would. with the commonwealth is asking for is no more or no less than reviewing what has been done for generations to determine there was a fourth amendment violation or an unlawful entry or seizure or whether there was a coercion that gained consent for entry. if those things occurred there clearly fourth amendment violations and there should be a suppression of evidence. >> wouldn't technically be a fourth amendment violation if the police gave the impression that they had a warrant and for about to kick in the door. is that a fourth amendment

violation in itself? >> i don't believe so. >> so the unlawful this test would not prevent that. [talking over each other] >> maybe we have to come up with an unreasonable this test. >> if officers demand entry and there's no response to that demand there is no completion of fourth amendment violation. [talking over each other] >> to pretend that they have a warrant. open the door or we will kick in. >> there are large restrictions and prohibitionss to that that officers are well aware of because if a person does answer the door officers know that everything will be suppressed. >> but why? you say when they have done is unlawful. >> if they demand entry and entry is given, that is the fourth amendment violation because they demanded entry without a warrant. in that case once they have entry the evidence would be

suppressed. >> they can't entry by deception. they can't knock on the door and say pizza. >> no. we would just assert that under the lawfulness test we're not asking for anything more or less than what this court has done or other courts have done for generations. this is a simple fourth amendment analysis. there was no demand in this case. was a simple knock and announce case regardless of time of day. there was no coercion, there was no seizure. officers should not be held accountable for unlawful reactions by suspects. >> you will have noticed that justice kennedy left the bench a few minutes early. he is going to tucson to represent the court as circuit justice at the memorial service. he will review the tapes and transcripts of the rest of the argument and participate in