There are only three lawful ways to enter a home: consent, exigent circumstances, or a warrant. This installment of Police Law in a Nutshell will briefly explain exigent circumstances. A previous installment covered consent searches, and a future post will discuss warrant searches.
Home Searches 2 – Exigent Circumstances
The “exigent circumstances” exception to the Fourth Amendment’s warrant requirement allows law enforcement to enter a home without a warrant or consent. The specific exigency restricts the scope of any search conducted after entry. Therefore, officers might be limited in their ability to search for evidence once inside unless another exception to the warrant requirement applies. These limitations will be briefly discussed below.
The U.S. Supreme Court has ruled that a warrantless intrusion into a home can be justified by hot pursuit of a fleeing felon; the imminent destruction of evidence; the need to prevent a suspect’s escape; or the risk of danger to police or others, whether inside or outside a residence. For the exigent circumstances exception to apply, there must be probable cause to believe that at least one of the above factors, or some other factor that would frustrate legitimate law enforcement efforts, exists. Remember that these exceptions apply only when the Fourth Amendment first applies: when the suspect has a reasonable expectation of privacy in the home (i.e., generally when it is the suspect’s home or when the suspect is a welcomed guest in the house).
Some Examples of Exigent Circumstances Searches:
Emergency Aid Doctrine: Officers may enter private premises without a warrant or consent if it reasonably appears that such action is urgently necessary to (a) prevent death or serious physical injury to officers or others, (b) provide necessary emergency medical assistance, or (c) protect against the imminent threat of significant property damage. When evaluating the risk of danger, the severity of any suspected crime and the likelihood that the suspect is armed are taken into consideration. Note that this exigency would not allow searches unrelated to providing the emergency aid and/or preventing the risk of injury or property destruction. However, other exceptions, such as the plain view doctrine, could apply.
Hot Pursuit: Hot pursuit of a fleeing felon has been found to justify entry into a home. The U.S. Supreme Court has ruled that hot pursuit for a misdemeanor offense did not alone justify entry into thesuspect’s home. Note that this exigency would not likely justify a search of a home for more than the suspect, though other exceptions, such as plain view, could apply.
Destruction of Evidence: Stopping the imminent destruction of evidence of a serious (jailable) crime is often considered an exigent circumstance to enter a home and search for or seize said evidence.
Escape: Preventing a suspect’s continued flight or escape beyond entry into the home itself may justify entry into a house to seize the suspect. Note that this exigency would not likely justify a search of a home for more than the suspect, though other exceptions, such as plain view, could apply.
Keep in mind:
• The search must be limited to the scope of the exigent circumstances.
• Once an exigency has ended, any additional intrusion needs consent or a warrant.
• Contraband or evidence in plain view may be seized, and may establish probable cause to “freeze” the premises while seeking a warrant.
• There is no automatic exigency at a crime scene, no matter the seriousness of the alleged crime. Unless you can articulate an exigency, consent or a search warrant is required to search or process a crime scene for evidence.
• The exigent circumstances exception does NOT apply if you create the exigency through an actual or threatened violation of the Fourth Amendment. For example, you knock on a door, an occupant refuses to open it, you announce that you will break down the door, even though you have no authority to do so, and then make forcible entry, claiming a belief that evidence is being destroyed. However, simply knocking on a door – as in a knock-and-talk – does not constitute creating an exigency.
If you have questions or situations you want to present to Brian MacMaster, email brian.macmaster@dirigosafety.com.