I don’t know that we’ve had this issue come up in military cases, but there’s a first time for everything. Plus this case highlights potentially confusing “tests” that arise from different courts.
During oral argument in Kentucky v. King on Wednesday, the Court struggled to find the proper test for determining when police are prohibited from justifying a warrantless search with exigent circumstances that they create. Because neither side supported the Kentucky Supreme Court’s two-prong test, a straightforward affirmance seems very unlikely; instead, the Court focused on whether the state’s proposed “lawfulness” test or another of the five tests currently being used by lower courts is best.
H/T to SCOTUSBlog.