Exigent Circumstances (podcast transcript)
Miller: Jenna, the courts often discuss exigencies that can excuse the need for obtaining a search warrant. What does the court mean by exigency?
Solari: An exigency is something that requires immediate attention; for instances, preventing the destruction of evidence, or preventing the escape of a fleeing felon, or preventing harm to somebody. If an officer has facts to reasonably believe that one or more of those exigencies are occurring, then the officer can enter a REP area, like a house, without a warrant. The exigency actually excuses the warrant requirement for that officers’ initial entry.
Miller: I believe you mentioned three exigencies or three exigent circumstances that might excuse the need for a warrant.
Solari: Right. There are three re-occurring types of exigencies which allow police officers to make warrantless entries into REP areas. One occurs when an officer has probable cause to believe that the time it would take to go get a warrant would result in the destruction of the evidence. The second is when officers in hot pursuit of a fleeing felon chases that felon into a REP area. The third is when the officer needs to enter a home to save somebody from harm.
Miller: Well, let’s talk about hot pursuit. That sounds pretty interesting. When can an officer pursue someone into a REP area?
Solari: There are three requirements. First the officer needs probable cause to believe that a serious crime has been committed and that the person who is running away committed it.
Miller: And, this is the same probable cause standard we discussed earlier; that is, information that would lead a reasonable person to believe that a crime has been committed and the suspect committed it.
Solari: Yes, but remember what the officer’s doing in a hot pursuit chase. He’s chasing the suspect into a REP area, like the sanctity of somebody’s home. Therefore, the Supreme Court requires the officer to have PC that the suspect committed a serious offense. What exactly is a serious offense hasn’t exactly been defined by the Supreme Court; however, I think it’s safe to say that a felony should suffice as a serious offense. Additionally, misdemeanor crimes of violence are probably also good enough. For example, an officer can enter a home if he has probable cause to believe a crime of family violence has been committed.
Miller: So the officer must have probable cause that the fleeing suspect committed a serious crime. What’s the second requirement?
Solari: The second, the pursuit of the suspect has to begin from a public place. We see these hot pursuits all the time on TV. The police begin chasing a suspect on a public street. The officers have probable cause that the suspect committed a serious crime and they end up chasing him into someone’s home.
Miller: And you’re telling me it’s reasonable to chase that suspect into a REP area like somebody’s house.
Solari: Well sure. The courts have held that the suspect can not defeat an arrest which started in a public place by ducking into a private place.
Miller: I guess that makes sense. Does the public place always mean public property?
Solari: No. Now, the Supreme Court defines public place for purposes of hot pursuit in terms of REP - reasonable expectation of privacy. For example, in the case of United States v. Santana, the police had probable cause to believe that the suspect had distributed narcotics our of her home. They drove by the suspect’s home, saw the suspect standing in the doorway of her home, stopped, and shouted “police”. The suspect retreated from the doorway into her house and the police chased her inside. The court held that entering that suspect’s house was justified as hot pursuit. The door frame of the suspect’s house was a public place, meaning that it was a place where the suspect was exposed to public view, and where the public could come.
Miller: Okay, so its probable cause to believe the suspect committed a serious crime; and second, the pursuit must begin from a public place.
Miller: There’s one more requirement, right?
Solari: Yes. Now think about a hot pursuit you’ve seen on TV. The chase that you watch is immediate and is continuous. That’s the third requirement. So, for example, the officer has probable cause to believe the suspect has committed or is committing a serious offense, the officer immediately and continually chases the suspect into that REP area. So, by that I mean the officer doesn’t stop for a coffee break on the way or something.
Miller: Well, I guess that makes sense. What if the officer loses sight of the fleeing suspect?
Solari: Well it’s not necessary that the officers continually have the suspect in sight. There are cases where the suspect managed to enter a house without being seen. The officer can still enter that REP area, the house for instance, if the officer has probable cause that the suspect went inside. So, imagine a police officer chasing a suspect, the suspect goes around the corner and the officer momentarily loses sight of the suspect; however, witnesses standing right there on the corner pointing at 123 Main Street and shouting to the officer “he went in there.” That should be enough to establish probable cause that the suspect fled into 123 Main Street.
Miller: Another situation that you had mentioned that might create an exigent circumstance is in situations where the evidence is possibly being destroyed or removed.
Solari: That’s right. Here the police officer has evidence to believe that a third party inside the home is going to destroy or remove evidence during the time that would be necessary for the officer to go and get a warrant.
Miller: How does the government satisfy the exception here for this destruction of evidence?
Solari: Well the circuits are split so officers and agents certainly need to seek the advice of their AUSA to understand the rules in their particular circuits. However, most circuits require probable cause or reasonable belief that third parties are inside the REP area and second that loss or destruction of the evidence is inevitable.
Miller: So if I’m a federal agent and I’m standing on a sidewalk next to a motel room, I can look into the motel room through a partial gap in the blinds, correct?
Solari: Sure. The occupants of the motel room can’t reasonable expect privacy in observations that you make from an vantage point that you rightfully occupied. I mean that’s right to be right to see.
Miller: And, its “right to be right to see, hear and smell” too, correct?
Miller: And that would allow me to put my ear up against the door and listen to what’s being said by the room occupants.
Miller: And I could also smell anything coming from underneath the door, right?
Solari: That’s right.
Miller: And if I saw the occupants passing amongst themselves and smoking something that looked like a hand rolled cigarette, making comments like, “hey man this is great weed” and smelled an aroma I recognized as burning marijuana, I should be able to enter that hotel room without a warrant. I’d have probable cause, or reasonable belief that third parties where inside the motel room right?
Miller: More over, I’d also have probable cause to believe that the time necessary to secure a warrant is going to result in the destruction of the evidence, the marijuana; because, you know, they’re going to smoke it up.
Solari: Right, absolutely. And well you’ve satisfied the requirements for most circuits. It’s not necessary for the agent to actually even see the dope being smoked or destroyed; the operative word is probable cause. For instances, we just discussed the facts in U.S. v. Santana, the police had probable cause to believe that Santana was distributing narcotics from her house, they drove by Santana’s home, saw her standing in her doorway, stopped and shouted “police.” She ran from the doorway into her house and the police chased her inside. The police could enter Santana’s home under that hot pursuit doctrine we talked about. Moreover, a reasonable officer could also conclude based on those facts that Santana had narcotics in her house and that she might flush the drugs in her home down the toilet before the officers could go and obtain a warrant.
Miller: The third exigent circumstance you described involves crime scene emergencies. These are situations where the police have to enter REP areas to save someone.
Solari: Right. The courts have recognized the need to make warrantless entries into a home or another REP area when officers have PC to believe that someone in there is in need of immediate aid.
Miller: What do you mean by immediate aid?
Solari: The courts have interpreted that as situations involving a need to protect or preserved life or avoid serious injury. So when the police enter the home, their goal is to render immediate aid and not search for evidence of a crime.
Miller: And, it’s a probable cause standard right?
Solari: That’s right. The facts should lead a reasonable officer to believe that entering that REP area was necessary to preserve life or protect someone from serious injury.
Miller: Do you have any examples?
Solari: Sure. Think of situations where police officers may have probable cause to believe that entering a REP area might be necessary to preserve life or avoid serious injury. For example, the police see a woman on street having convulsions, so they go over to render assistance. They look in her purse, which we know is a REP area. Their purpose for looking is to render aid. For instances they need to find her I.D., determine whether she is on any type of medication, or find any other information that might help them provide her with immediate medical assistance.
Another might be where the police are dispatched to 123 Main Street, an REP area, to investigate a silent alarm activation. They need to go inside to find out if anyone’s been hurt or if there’s a robbery or something going on in there.
The police enter a house without a warrant based on a 911 call because the caller reported that there were shots fired inside 123 Main Street. They need to enter immediately to provide assistance.
Let’s say police get a reliable tip from an informant. The informant said she was inside 123 Main Street just 20 minutes ago, there was methamphetamine out on the coffee table and small children, three and four years old, were playing on or around the coffee table. Certainly the police would need to go in there to make sure those children weren’t going to hurt themselves or gain access to methamphetamine. We’d have exigent circumstance in that case.
Miller: Now you described three exigent circumstances that might allow a police officer to enter someone’s house or other REP area - hot pursuit, destruction of evidence and emergencies. What can we do after the pursuit is over and we’ve captured the fleeing felon. Or, what can we do after we’ve entered the hotel room and saved the drugs from being flushed down the toilet. Or, what can we do after we’ve entered the house and saved the victim from serious harm? Are the courts going to reward our good deeds and allow us to just search further without a warrant?
Solari: No. Once the pursuit is over, or the evidence is safe from destruction, or we’ve saved the victim who was in need of help, the officers can’t search for evidence without then obtaining a warrant or identifying another reasonable exception to the warrant requirement.
It might be helpful to look at these three exigencies separately. First, let’s take hot pursuit. When officers pursue a fleeing felon into a house, its reasonable for officers to look not only for that person who ran away, but also for weapons that person may have hidden inside the house. Officers can take reasonable precautions to prevent the fleeing felon of course from harming the officers or escaping.
Solari: Once they capture the guy, they can do a SIA – that’s a search incident to arrest.
Miller: And that’s a thorough search of his person and areas within his lunging distance for weapons, means of escape and evidence.
Solari: Right. Now, but after the pursuit’s over, we’ve captured our suspect, and performed our SIA, the courts are not going to allow us to search that home further for evidence; because, of course, the emergency’s over. We found the guy who ran away and we’ve gotten him, placed him under arrest and done our SIA. We’re going to need a warrant or another reasonable exception to the warrant requirements to go any further.
Also, when officers enter a REP area to prevent someone from destroying evidence, that second exigency we talked about. The officer can obviously seize the evidence that was about to be destroyed.
Miller: And, it’s very likely that we can also do a search incident to arrest of the suspect who was about to destroy the evidence. I mean the evidence may be contraband, stuff that’s illegal to possess like drugs. Also, destroying evidence should be a crime in most jurisdictions.
Solari: Right. And of course, don’t forget the value of a Terry Stop and a Terry Frisk of other people who may be with the suspect who was destroying the evidence. Again, to search any further for evidence, after you’ve seized what was about to be destroyed, we’re going to need to get a warrant or find another exception to the warrant requirement.
Now finally, we talked about that third exigency. Officers may enter a REP area to render immediate aid to a victim. Now we can look for things that might help us render that assistance. So for example, again, we got a 911 call that someone’s laying on the floor unconscious at 123 Main Street. We can enter that home without a warrant. We can search the victim’s person for things that might help us render aid - her identification, prescription medicine bottles, medical ID bracelets - stuff that we can use to help her with medical assistance.
Miller: And if we find crack cocaine in her purse?
Solari: Well, that’s something that the EMT’s are going to want to know. I mean perhaps the victim at 123 Main Street overdosed. But I think I understand your question, which is, can the crack that we found in the woman’s purse that we found while we were looking during that emergency be used at the woman’s trial for illegal possession of crack cocaine. The answer is “yes.” The crack’s considered to be in plain view because we were inside the purse legitimately trying to look for something to help us render aid, but once the emergency is over, the EMT’s come, they take the woman away to the hospital, we probably can’t justify continuing a search of 123 Main Street based on the emergency exception again. The emergency is over. The victim’s been removed from the house. So we’re going to have to go get a warrant or again identify another exception to continue our search of that house.
Miller: That was a lot of information.
Solari: It was.
Miller: Let’s take a break and when we come back we’ll talk about the plain view exception to the warrant requirement.