Officer cannot unreasonbly create exigent circumstances

Patrick H. Dunn won in State v. Campbell, No. 101,860 (Kan. May 3, 2013), obtaining a suppression order in a Riley County drug prosecution.  The issue presented in the case had to do with whether the state proved exigent circumstances that justified a warrantless entry into an apartment.  The KSC agreed with Mr. Campbell that the officers' actions were unreasonably created the purported exigent circumstances:

In contrast to the officers in [Kentucky v. King (U.S. 2011)], the officer here did not mistakenly approach the defendant's apartment door. Nor did the officer here announce his presence or give the occupants any opportunity to make an "informed" decision whether to open the door. In considering the circumstances of this case, we are mindful that the Fourth Amendment permits knock and talk encounters because they are voluntary consensual encounters.

Recently, in discussing whether a dog sniff at the front door of the defendant's home was consistent with the Fourth Amendment, the United States Supreme Court commented on the scope of an officer's permissible actions when approaching a front door, stating, "[t]he knocker on the front door is treated as an invitation or license to attempt an entry." Florida v. Jardines (U.S. March 26, 2013). The invitation or license extended to "solicitors, hawkers and peddlers" also extends to law enforcement officers, who are accordingly permitted to do as any "'private citizen'" might do."

Here, Officer Nible did more than "any private citizen might do." See King, 131 S. Ct. at 1862. Rather than simply knock on the door and wait for an answer, Nible affirmatively chose to conceal his identify by covering the peephole and positioning himself to block the occupant's ability to determine who was standing at the door—essentially forcing the occupant of the apartment to make an uninformed decision. "No customary invitation" permits approaching someone's door in this manner. Pursuant to King, because Nible acted unreasonably by exceeding the scope of a knock and talk, he engaged in conduct that violated the Fourth Amendment and cannot rely on the exigency exception to justify his warrantless entry.

Because the warrantless entry was not justified by exigent circumstances, it violated the Fourth Amendment and the KSC ordered the discovered evidence suppressed.