12.1: Exigent Circumstances

Police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving.1

Most people would probably agree that officers who encounter exigent circumstances should do whatever is reasonably necessary to quickly defuse the situation, including making a forcible entry into a residence. Certainly, most people who pay taxes would insist upon it. And that is, in fact, the law in California and in most states. Except there’s a problem: Nobody is quite sure of what the term “exigent circumstances” encompasses.

Over the years, it has been variously defined as a situation in which there is a “compelling need for official action”2 or a condition in which “real, immediate, and serious consequences will certainly occur,”3 and an “immediate major crisis.”4 But the most concise and accurate definition was provided by the Seventh Circuit which said that the term “exigent circumstances” is merely “legal jargon” for an “emergency.”5

In addition to its fuzziness, the number of situations that qualify as exigent circumstances has expanded greatly. At first it was limited to imminent threats to public safety. But over time the courts started employing it in situations where the threatened harm was the destruction of evidence or the apprehension of fleeing suspects.6

And then the courts started to recognize an entirely new type of exigent circumstance that became known as “community caretaking” or sometimes “special needs.” These are essentially situations that are “totally divorced from the detection, investigation, or acquisition of evidence,”7 and which also did not rise to the level of a true emergency—and yet the officers believed they needed to act and their belief was objectively reasonable. As the Ninth Circuit observed, the term “exigent circumstances” has become “more of a residual group of factual situations that do not fit into other established exceptions [to the warrant requirement].”8

Another change in the law was the establishment of a simpler and more elastic test for determining whether a situation fell into the category of “exigent.” It is known as “The Balancing Test,” and that is where we will start.

The Balancing Test

In the past, a threat could qualify as an emergency only if officers had probable cause to believe it would materialize.9 The problem with this requirement was that, by focusing on whether there was sufficient proof that a threat existed, the courts would sometimes ignore the overall reasonableness of an officer’s belief that a threat existed. They would also sometimes disregard the reasonableness of the manner in which officers responded. For example, a judge who was only interested in whether there was probable cause to believe that some harm was about to occur would overlook such seemingly important circumstances as the magnitude of the threat, the likelihood that the threat would materialize, and whether the officers’ response to the situation was proportionate to the threat.

For these reasons, the Supreme Court decided to abandon the probable cause requirement and, as noted, replace it with a type of the balancing test. Specifically, it ruled that a search or seizure pursuant to the exigent circumstances exception to the warrant requirement would be lawful if the need for the officers’ response outweighed its intrusiveness.10 Or, as the Fourth Circuit put it, “As the likelihood, urgency, and magnitude of a threat increase, so does the justification for and scope of police preventive action.”11

One important consequence of this test (as opposed to a probable cause requirement) is that if the need for the intrusion was not high, officers might still be able to respond if they could to reduce the intrusiveness to their response.

There is, however, one exception to the rule that probable cause is not required. It pertains to forcible entries into homes which, by their very nature, are so highly intrusive that the need for such a response can outweigh its intrusiveness only if the officers had probable cause to believe the threat would materialize.12

The Need for Immediate Action

The first and most important step in applying the balancing test is to assess the strength of the need for an immediate search or seizure. In making this determination, the courts apply the following general principles.

The “reasonable officer” test

In evaluating the significance of a threat— whether it’s a threat to a person’s life, to an investigation, or to a community caretaking interest— the courts apply the “reasonable officer” test. This means they examine the circumstances from the perspective of the proverbial “reasonable” officer who, while he sometimes makes mistakes, is always able to provide a sensible explanation for his actions.13 “The core question,” said the Second Circuit, “is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe that there was an urgent need to render aid or take action.”14

Another way to apply this test is to think, “How would the public respond if the threat materialized but I did nothing or waited for a warrant?”15 As the Court of Appeal put it, “In testing reasonableness of the search, we might ask ourselves how the situation would have appeared if the fleeing gunman armed with a shotgun had shot and possibly killed other officers or citizens while the officers were explaining the matter to a magistrate.”60

Training and experience

Because an officer’s training and experience “can be critical in translating observations into reasonable conclusions,”17 the courts will also take into account the responding officers’ training and experience as it pertains to such matters.

Reliability of information

Unlike the probable cause test which focuses heavily on the reliability of the information upon which the officer’s judgment was made, the balancing test is more flexible . Instead, the importance of reliable information decreases as the need for im- mediate action increases.18 Thus, in applying the balancing test in Florida v. J.L., the Supreme Court said, “We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk.”19 Similarly, the Eleventh Circuit said that “when an emergency is reported by an anonymous caller, the need for immediate action may outweigh the need to verify the reliability of the caller.”20 It should also be noted that the existence of conflicting information as to the nature or scope of a threat does not necessarily eliminate the need for immediate action.21

Magnitude of potential harm

It is not surprising that the most weighty of all the relevant circumstances is the magnitude of the potential harm that might result if the officers delayed taking action. As the Ninth Circuit explained, “[W]hether there is an immediate threat to the safety of the arresting officer or others, the most important factor” is the magnitude of the potential threat.22 We will discuss this subject later in more detail.

Harm is “imminent”

The courts often say the threat must have been “imminent.” But this just means that the officers must have reasonably believed that the threat would have materialized before they would have been able to obtain a warrant.23 Thus, the Court of Appeal observed, “Imminent essentially means it is reasonable to anticipate the threatened injury will occur in such a short time that it is not feasible to obtain a search warrant.”24

The officers’ motivation

The officers’ motivation for taking action is unimportant in applying the balancing test in emergency aid and investigative emergency situations because their mental state has nothing to do with the magnitude of the threat or the reasonableness of their response.25 Thus, in an emergency aid case, Brigham City v. Stuart, the Supreme Court said, “It therefore does not matter here whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence.”26

In community caretaking cases, however, the officers’ motivation is significant because the word “caretaking” implies that the officers must have been motivated by a “caretaking” interest. As the California Supreme Court observed, “The defining characteristic of community caretaking functions is that they are totally unrelated to the criminal investigation duties of the police.”27

Manner of officer’s response

Regardless of the nature of the threat, a warrantless search or seizure will not be upheld if the officers did not respond to the threat in a reasonable manner. As the court explained in People v. Ray, “The officer’s post-entry conduct must be carefully limited to achieving the objective which justified the entry—the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance or property is at risk and to provide that assistance or to protect that property.”28

Nevertheless, a delay is apt to be less significant if officers needed additional time to evaluate the situation or devise an appropriate response.29 As the California Supreme Court pointed out, “An officer is not required to rush blindly into a potential illicit drug laboratory and possibly encounter armed individuals guarding the enterprise, with no regard for his own safety just to show his good faith belief the situation is emergent.”30

Having examined the general principles that apply in determining whether exigent circumstances existed, we will now show how those principles are applied by the courts in the three categories of exigent circumstances: (1) imminent threat to a person or property, (2) community caretaking, and (2) investigative emergencies.

Imminent Danger to a Person

The need for rapid police intervention is greatest—and will almost always justify an immediate and intrusive response—when officers reasonably believed it was necessary to eliminate or address an imminent threat to a person’s health, safety, or sometimes property. “The most pressing emergency of all,” said the Court of Appeal, “is rescue of human life when time is of the essence.”31 Or as the Fourth Circuit put it, “[P]rotecting public safety is why police exist.”32

PERSON INJURED

That a person in a residence had been injured is not an exigent circumstance. But it becomes one if officers reasonably believed that the person’s life or safety were at risk, even if it was not life-threatening. For example, in Brigham City v. Stuart 33 police responded to a noise complaint at 3 A.M. and were walking up to the house when, as they passed a window, they saw four adults “attempting, with some difficulty, to restrain a juvenile,” at which point the juvenile “broke free and hit one of the adults in the face,” causing him to spit blood. The officers immediately opened the screen door, entered the residence and stopped the fight. They also arrested some of the adults for disorderly conduct and contributing to the delinquency of a minor.

The arrestees argued in court that the officers’ entry was illegal because there was no significant threat to anyone. Specifically, they claimed that “the injury caused by the juvenile’s punch was insufficient to trigger the so-called ‘emergency aid doctrine’” because the victim was not knocked unconscious or at least semi-conscious. In rejecting this argument, the Supreme Court pointed out that the “role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.”

Note that in Stuart, the existence of a threat was based on direct evidence. It most cases, however, it will be based on circumstantial evidence, such as the following:

SICK PERSON: Having learned that one of the occupants of an apartment was “sickly,” officers knocked on the door. They could hear several moans or groans from inside, but no one answered the door.34

UNRESPONSIVE PERSON: Officers were walking by the open door of a hotel room when they saw a man “seated on the bed with his face lying on a dresser at the foot of the bed.” They also saw “a broken, jagged piece of mirror” and “dark balls” which appeared to be heroin.35

SHOOTING OUTSIDE A HOME: Although the shooting apparently occurred just outside the home, there were bloodstains on the door indicating that “a bleeding victim had come into contact with the door, either by entering or by exiting the residence.”36

SHOOTING INSIDE A HOME: Officers responded to a report of a shooting inside a house. No one met them when they arrived and the house was dark, but there were two cars in the driveway and the lights outside were on. When no one answered the door, the officers went in through a window.37

IRRATIONAL AND VIOLENT: A man inside a motel room appeared to be “irrational, agitated, and bizarre”; he had been carrying two knives; his motel room was “in disarray, with furniture over- turned, beds torn apart, and the floor littered with syringes and a bloody rag.”38

CHILD IN DANGER: An anonymous 911 caller re- ported that a child was being beaten by her parents; i.e., that it was happening now. When officers arrived they heard a man shouting inside the house, and then the man “bombarded” them with a “slew of profanities.”39

CHILD IN DANGER: Police received a report of “two small children left” alone at an apartment. No one answered door. A woman arrived and started to enter the apartment. An officer saw “considerable trash and dirty clothes strewn about the kitchen area,” and the woman was drunk.40

911 hangups

When people need immediate help, they usually call 911. But sometimes people who dial 911 hang up before the call is completed or while the dispatcher is trying to obtain information. In such cases, the 911 operator will have no way of knowing whether the connection was lost because the caller lost consciousness, or because someone was preventing the caller from completing the call, or if the caller was a child who was curious about what happens when someone dials 911. The operator cannot, however, ignore the call. As the Seventh Circuit observed, a “911 system designed to provide an emergency response to telephone tips could not operate if the police had to verify the identity of all callers and test their claim to have seen crimes in progress.”41

So, how can the responding officers determine whether a 911 hangup constitutes an emergency that would justify a search or seizure? While there are no easy answers, the courts often rule that such a response is justified if the officers saw or heard something upon arrival that was consistent with a call for help. For example, in applying this principle, the courts have noted the following:

• “[The] combination of a 911 hang call, an unanswered return call, and an open door with no responses from within the residence is sufficient to satisfy the exigency requirement.”42
• “Even more alarming, someone was answering the phone but immediately placing it back on the receiver.”43
• An “hysterical” man phoned the police at 5 A.M. and shouted, “Get the cops here now!” After the man gave his address, the phone was disconnected; the front door was ajar.44
• The woman who answered the door for the responding officers was nervous and gave them “obviously false statements,” which led them to believe “she had been threatened or feared retaliation should she give honest answers.”45

Domestic violence

On the subject of domestic violence calls, the Ninth Circuit noted that their volatility makes them “particularly well-suited for an application of the emergency doctrine.”46 Thus, in Tierney v. Davidson the Second Circuit said, “Courts have recognized the combustible nature of domestic disputes, and have accorded great latitude to an officer’s belief that warrantless entry was justified by exigent circumstances when the officer had substantial reason to believe that one of the parties to the dispute was in danger.”47

Still, as in 911 hangup cases, the courts seem to require some additional suspicious or corroborating circumstance before officers may enter without a warrant. “We do not suggest,” said the Ninth Circuit, “that domestic abuse cases create a per se exigent need for warrantless entry; rather, we must assess the total circumstances, presented to the law officer before a search, to determine if exigent circumstances relieved the officer of the customary need for a prior warrant.”48

For example, in People v. Pou 49 LAPD officers responded to a report of a “screaming woman” at a certain address. When they arrived, they could hear the “very loud” sound of people arguing. The officers knocked and announced several times, but no one responded. Finally, a man opened and door and the officers told him that they needed “to come in and look at the apartment to make sure everybody was okay.” When the man refused to admit them, they entered and conducted a protective sweep. “Under these circumstances,” said the court, “it was objectively reasonable for an officer to believe that immediate entry was necessary to render emergency assistance to a screaming female victim inside or to prevent a perpetrator from inflicting additional immediate harm to that victim or others inside the house.”

Similarly, in People v. Higgins 50 officers were dispatched at 11 P.M. to an anonymous report of a domestic disturbance involving “a man shoving a woman around.” No one responded to their knocking, but they saw a man inside the residence and then heard a “shout.” They knocked again, and a woman answered the door. “She was breathing heavily and appeared extremely frightened, afraid, very fidgety, and very nervous.” The officers also noticed a “little red mark” under one eye and “slight darkness under both eyes.” The woman tried to explain away the officers’ concern by saying that she was injured when she fell down some stairs, and that the noise from the fall might have prompted someone to call the police. When she said that her boyfriend had left, they knew she was lying (because they heard him “shout”), at which point they forcibly entered. In ruling the entry was lawful, the court noted that the woman “was extremely frightened and appeared to have been the victim of a felony battery. Moreover, [she] lied about being alone and gave the officers a suspicious story about having fallen down the stairs.”

In Pou and Higgins the officers had clearly seen and heard enough to reasonably believe that an immediate entry was justified by exigent circumstances. In many cases, however, the responding officers will have nothing more that a report of domestic violence from a 911 caller. Although some additional suspicious circumstance is ordinarily necessary before the officers may forcibly enter a home based on that alone, the courts have ruled that a 911 call may, in and of itself, justify a less intrusive response, such as trespassing. This is because it is common knowledge that 911 calls are traced and recorded, and therefore people who phone 911 instead of a non-emergency line are (at least to some extent) leaving themselves exposed to identification even if they gave a false name or refused to identify themselves.51 As the Supreme Court pointed out, “A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.”52

For example, in U.S. v. Cutchin the D.C. Circuit upheld a car stop based solely on a 911 report that the driver had a sawed-off shotgun and a .38 caliber pistol at his side. In such cases, said the court, so long as the caller did not appear to be unreliable, “a dispatcher may alert other officers by radio, who may then rely on the report, even though they cannot vouch for it.”53

Missing persons

The courts have usually upheld forcible entries into a home for the purpose of locating a missing person when (1) the officers reasonably believed the report was reliable, (2) the circumstances surrounding the disappearance were sufficiently suspicious, and (3) there was reason to believe that an immediate warrantless entry was necessary to confirm or dispel their suspicions. Two examples:

In People v. Rogers 54 a woman notified San Diego police that a friend named Beatrice had been missing, that she was living with Rogers in an apartment complex that he managed and, even though Beatrice had been missing for three weeks, Rogers had refused to file a missing person report. In addition, she had previously heard Rogers threaten to lock Beatrice in a storage room in the basement. An investigator phoned Rogers who claimed that Beatrice had been missing for only a week or so, at which point Rogers said he “had to go,” and quickly hung up. Later that day, the investigator and uniformed officers went to the apartment and spoke with Rogers who claimed that Beatrice might have gone to Mexico “with someone.” The investigator asked if he could look in the storage room just to confirm that she was not being held there. At that point, Rogers’ “neck started to visibly throb” and he said no. The investigator then forcibly entered and found Beatrice’s remains. Rogers was charged with her murder. In ruling that the entry was justified, the court pointed out, among other things, Rogers’ “noticeable lack of concern over the whereabouts of his child’s mother” and his “physical reaction” when the investigator mentioned his threat to lock Beatrice in the storage room.

In People v. Macioce, 55 some friends of Mr. and Mrs. Macioce notified San Jose police that the couple was missing. The friends were especially concerned because the Macioces missed a regular church meeting which they usually attended, and also because Mr. Macioce failed to appear for a knee operation. They also said the Macioce’s car was parked in the carport but, during the past two days, they had knocked on the door of the house several times but no one responded and the mail was piling up. When the officers also received no response at the front door, they entered the apartment and discovered the body of Mr. Macioce who, as it turned out, had been killed by Mrs. Macioce. In rejecting Mrs. Macioce’s motion to suppress everything in the house (including her husband’s corpse) the court said the warrantless entry “was eminently reasonable.”

Drug labs

An illegal drug lab in a home or business will constitute an exigent circumstance if officers were aware of facts that reasonably indicated that it posed an imminent threat.56 This requirement is automatically satisfied if officers reasonably believed that the lab was being used to manufacture meth or PCP because the chemicals used to produce these substances tend to explode.57

What about the odor of ether? It is arguable that any detectible odor of ether coming from a home constitutes an exigent circumstance because ether is highly volatile.58 For example, in People v. Stegman,59 in which the odor was detected two houses away, the court said, “Ether at such high levels of concentration would be highly dangerous regardless of purpose, thus constituting an exigent circumstance.”

Dead bodies

Officers who respond to a report of a dead body inside a home or other place are not required to assume that the reporting person was able to make a medical determination that the person was deceased. Consequently, they may enter the premises to confirm.60 As the D.C. Circuit observed, “Acting in response to reports of dead bodies, the police may find the ‘bodies’ to be common drunks, diabetics in shock, or distressed cardiac patients. Even the apparently dead are often saved by swift police response.”61

If officers detect the odor of a decaying body coming from the premises, it has been held that if one person is dead under suspicious circumstances, it is not unreasonable for officers to enter to make sure there is no one on the premises who might be saved. Said the Ninth Circuit, “[A] report of a dead body can easily lead officers to believe that some- one might be in need of immediate aid.”62 Note that the coroner has a legal right to enter to examine the body and take other action required by law.63

Investigative Threats

Although there is no "crime scene" exception to the warrant requirement, the courts have consistently recognized an exception in situations where there existed an imminent threat that evidence of a crime would be destroyed or corrupted, or that a suspect was, or will soon be, in flight.64

The lawfulness of a search based on such a threat—an “investigative emergency”—is technically determined by employing the same balancing test that is used in the other exigent circumstances; i.e., it is lawful if the need for the action exceeded its intrusiveness. As a practical matter, however, the restrictions on investigative threats are greater because the officers’ objective is to protect a law enforcement interest as opposed to a threat to the general public (although these threats are not necessarily mutually exclusive).

The primary restriction on investigative threats pertains to warrantless entries into homes. In these cases the courts still apply the balancing test, but they generally require that the need portion of the test be supported by probable cause.65 Although. as noted earlier, probable cause is not required when the emergency entry into a home was based on an imminent threat to people or property, most courts consider it an absolute requirement when the only objective is to defuse a threat that is based solely on a law enforcement interest.66 Moreover, the courts are generally not apt to uphold an intrusion based on destruction of evidence or “fresh” pursuit unless the crime under investigation was especially serious.67 (As we will discuss later, the seriousness of the crime is not an important factor when officers are in “hot” pursuit.)

Destruction of evidence

Probably the most common investigative emergency is a threat that certain evidence would be destroyed if officers waited for a warrant.68 This is because a lot of evidence can be destroyed quickly, and its destruction is a top priority for most criminals when they think the police are closing in. There are, however, three requirements that must be met to invoke this exigent circumstance:

EVIDENCE ON PREMISES

Officers must have had probable cause to believe there was destructible evidence on the premises.69 In the absence of direct proof, probable cause may be based on logical inference. For example, people who commit certain crimes (such a drug dealers) usually possess certain instrumentalities or fruits of the crime, and they usually keep these things in their home, car, or other relatively safe place.70

1. JAILABLE CRIME: Although the crime under investigation need not be “serious” or even a felony,71 it must carry a potential jail sentence.72
2. IMPENDING DESTRUCTION: Officers must have been aware of some circumstance that reasonably indicated the suspect or someone else was about to destroy the evidence.73 Thus, the mere possibility of destruction does not constitute an exigent circumstance.74

A common indication that evidence was about to be destroyed is that, upon arrival to execute a search warrant, the officers saw or heard a commotion inside the residence which, based on the their training and experience, was reasonably interpreted as indicating the occupants were destroying evidence or were about to start.75 For example, in People v. Ortiz two officers who were walking past an open door to a hotel room saw a woman “counting out heroin packages and placing them on a table.” The officers then entered without a warrant and court ruled the entry was lawful because:

Viewed objectively, these facts were sufficient to lead a reasonable officer to believe that defendant or the woman saw, or might have seen, the officers. Since it is common knowledge that those who possess drugs often attempt to destroy the evidence when they are observed by law enforcement officers, it was reasonable for [the officer] to believe the contraband he saw in front of defendant and the woman was in imminent danger of being destroyed.76

Some other examples:

• After knocking, the officers “heard noises that sounded like objects being moved.”77
• After the officers knocked and announced, the suspect “disappeared behind the curtains, and the officers heard a shuffling of feet and the sound of people moving quickly about the apartment.”78
• When an occupant opened the door and saw that the callers were officers, he immediately attempted to slam the door shut.79
• After the officers knocked and announced, the suspect opened the door but immediately slammed it shut when she was informed that her accomplice had consented to a search. The officers then “heard footsteps running away from the door, a faucet turn on, and drawers being banged open and closed.” Said the court, “These are classic signs indicating destruction of evidence.”80
• Another “classic” sign is the “repeated flushing of the toilet behind the locked door of the bathroom in premises where [drugs are] being kept and the police are at the threshold.”81

It might also be reasonable to believe that a suspect inside the house would destroy evidence if there was reason to believe that he had just learned, or would quickly learn, that an accomplice or co- occupant had been arrested and would therefore have reason to cooperate with officers.82 As the D.C. Circuit explained, “[T]he police will have an objectively reasonable belief that evidence will be destroyed if they can show they reasonably believed the possessors of the contraband were aware that the police were on their trail.”83

Thus, in People v. Freeny the court concluded that narcotics officers in Los Angeles reasonably believed that the suspect’s wife would destroy drugs in the house because she was inside and her husband had just been arrested some distance away after selling drugs to an undercover officer. Said the court, “No reasonable man could conclude other than that Mrs. Freeny would destroy evidence of her guilt, which was equal to that of appellant, if she learned of his arrest.”84

Note, however, that even if there existed a threat of imminent destruction, a warrantless entry or search will not be upheld if the officers said or did something before entering that they knew, or should have known, would have provided the occupants with a motive to destroy evidence immediately; e.g., an officer without a warrant said “open the door or we’ll break it open.”85 Also, in most cases the evidence can be sufficiently protected by securing the premises while seeking a warrant.

Hot pursuits

In the context of exigent circumstances, a “hot” pursuit occurs when (1) officers had probable cause to arrest the suspect, (2) the arrest was “set in motion” in a public place (which includes the doorway of the arrestee’s home), and (3) the suspect responded by retreating into his home or other private place. When this happens, officers may pursue him inside because, said the Supreme Court, “a suspect may not defeat an arrest which has been set in motion in a public place by the expedient of escaping to a private place.”86

For example, in the case of U.S. v. Santana,87 officers in Philadelphia went to Santana’s house to arrest her because she had just sold drugs to an undercover officer. As they arrived, they saw her standing at the doorway. She saw them too, and ran inside. After they entered and arrested her, the officers seized evidence in plain view which Santana thought should be suppressed. The Supreme Court disagreed, ruling that officers in “hot” pursuit do not need to terminate a chase when the suspect flees into a residence. Some other examples:

• Responding to a report of a domestic dispute, officers found the victim outside her home. Her face and nose were red and she was “crying uncontrollably.” She said her husband, who was inside the house, had “hit her a few times in the face.” The husband opened the door when the officers knocked but, seeing the officers, tried to close it. The officers went in.88
• While staking out a stolen car, an officer saw a known auto burglar walk up to the driver’s side and reach down “as if to open the door.” When the burglar saw the officer, he ran into his home nearby. The officer chased him inside and arrested him.89
• An officer who was investigating a report of a “very strong odor of ether” coming from an apartment, saw Luna step out of the apartment. Luna appeared to be under the influence of PCP. When the officer ordered her to “come down the stairs,” Luna went back into the apartment and closed the door. The officer went in after her.90
• An officer attempted to make a traffic stop on Lloyd who disregarded the officer’s red light and siren, drove home and ran inside. They went inside and arrested him.91

Note that while the other investigative emergencies can be invoked only if the crime under investigation was especially serious, this requirement does not apply to hot pursuits. As the Supreme Court explained, “Where the pursuit into the home was based on an arrest set in motion in a public place, the fact that the offenses justifying the initial detention or arrest were misdemeanors is of no significance in determining the validity of the entry without a warrant.”92

Finally, a suspect who runs from officers triggers the “hot” pursuit exception even though the crime occurred at an earlier time. Thus, the courts have ruled that a hot pursuit “need not be an extended hue and cry in and about the public streets,”93 but it must be “immediate or continuous.”94 For example, in People v. Patino,95 LAPD officers were dispatched late at night to a silent burglary alarm at a bar. As they arrived, they saw a man “backing through the front door carrying a box.” When the man saw the officers, he dropped the box and escaped. About an hour later, the officers saw him again and resumed the chase. When the man ran into an apartment, the officers went in after him and encountered Patino who was eventually ar- rested for obstruction. Patino contended that the officers’ entry was unlawful, but the court disagreed because “[t]he facts demonstrate that the officers were in hot pursuit of the burglary suspect even though an hour had elapsed after they were first chasing the suspect.”

“Fresh” pursuits

Unlike “hot” pursuits, “fresh” pursuits are not physical chases. Instead, they are pursuits in the sense that officers with probable cause are actively attempting to apprehend the suspect and, in doing so, are quickly responding to developing information as to his whereabouts; and eventually that information adds up to probable cause to believe that he is presently inside his home or other private structure.96 The cases indicate that an entry based on “fresh pursuit” will be permitted if the following circumstances existed:

(1) Serious felony: The crime under investigation must have been a serious felony, usually a violent one.97

(2) Diligence: At all times the officers must have been diligent in their attempt to apprehend the perpetrator.98

(3) Suspect located: The officers must have developed probable cause to believe that the perpetrator was presently inside a certain house or structure.99

(4) Evidence of flight: Officers must have reasonably believed that the perpetrator was in active flight or soon would be.

In some cases, an officer’s belief that a suspect is fleeing will be based on direct evidence. An example is found in People v. Lopez where LAPD officers learned that a murder suspect was staying at a certain motel, and that someone would soon be delivering money to him so that he could escape to Texas.100 In most cases, however, evidence of flight will be based on circumstantial evidence. Examples include seeing a fresh trail of blood leading from a murder scene to the suspect’s house,101 and knowing that a violent parolee-at-large was trying to avoid arrest by staying at different homes.102

In some cases, the fact that the suspect had recently committed a serious felony may also justify the conclusion that he is in active flight. This is because the perpetrator of such a crime will expect an immediate, all-out effort to identify and apprehend him. The length of such an effort will vary depending on the seriousness of the crime and the number of leads. In any event, if during this time officers developed probable cause to believe the perpetrator was inside his home or other place, a warrantless entry will usually be justified under the “fresh” pursuit doctrine. Examples:

• At 8 A.M., Hayden robbed a Baltimore cab company employee at gunpoint. As he left, someone in the office yelled “holdup,” and two cab drivers in the vicinity heard this, saw Hayden, and followed him to his home nearby. Police were alerted, arrived quickly, entered and arrested Hayden. Court: “The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given.”103
• The body of a young woman was discovered at 5:20 A.M. along a road in Placer County. She had been raped, robbed, and murdered. Sheriff’s detectives quickly identified the woman and developed probable cause to believe that Williams was the perpetrator. The next day, they found the victim’s stolen car near the apartment of Williams’ girlfriend. They entered the apartment and arrested him. In ruling the ar- rest was lawful under the “fresh” pursuit doctrine, the court noted that the investigation proceeded steadily and diligently from the time the body was discovered and that “[t]he proximity of the victim’s car clearly suggested defendant’s presence in the apartment, and also made flight a realistic possibility.” 104
• Gilbert killed a police officer in Alhambra during a botched bank robbery. He and one of his accomplices, King, got away but, unknown to them, a third accomplice named Weaver was captured a few minutes later. Weaver identified Gilbert as the shooter and told officers where he lived. While en route to the apartment, officers learned that King had just left the apartment. Figuring that Gilbert was still in- side, officers forcibly entered. Although Gilbert was not there, officers found evidence in plain view. During a suppression hearing, one of the officers testified that “we knew . . . there were three robbers. One was wounded and accounted for, one had just left a few minutes before, and there was a third unaccounted for. Presumably he was in the apartment.” The court responded, “Since the officers were in fresh pursuit of two robbers who escaped in the same automobile, [the officer’s] assumption was not unreasonable. The officers entered, not to make a general exploratory search to find evidence of guilt, but in fresh pursuit to search for a suspect and make an arrest. A police officer had been shot, one suspect was escaping, and another suspect was likely to escape.”105

Community Caretaking

As noted earlier, the role of law enforcement officers in the community has grown over the years. In fact, it now includes an “infinite variety of services,”106 that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”107 Sometimes the responding officers determine that they cannot resolve the matter unless they enter or maybe even search a home, business, or car. Can they do so without a warrant?

In the past, the answer was usually no because there was no demonstrable threat to life or property.108 But as time went on, cases started cropping up in which the courts would acknowledge that, despite the absence of a true emergency, they could not fault the officers for intervening. Some of these courts avoided issue by invoking the “harmless error” or “inevitable discovery” rules, or saying that a true emergency existed even though it obviously didn’t. Others would rule that the search was illegal and that the evidence must be suppressed but, at the same time, they would say something like, “I don’t think that the officers were wrong in what they did. In fact, I commend them.”

Over time, however, the courts started confronting the issue. One of the first to do so was the California Supreme Court which, in People v. Ray, pointed out many people nowadays “do not know the names of [their] next-door neighbors” and that “tasks that neighbors, friends or relatives may have performed in the past now fall to the police.” And, said the court, there would be “seriously undesirable consequences for society at large” if officers were required to explain to the reporting person, “Sorry. We can’t help you. We need a warrant but can’t get one because there’s no ‘crime.’”109

This is why the courts now recognize the relatively new exigent circumstance that has become known as “community caretaking” or “special needs.”110 Examples of typical community caretaking situations include “check the welfare calls,” clearing vehicle accidents, looking for lost children and, recently, trying to corral a loose horse.111

CARETAKING VS. EXIGENT CIRCUMSTANCES

Although some courts have suggested that community caretaking and exigent circumstances are separate concepts, they are not. On the contrary, they are both (1) based on a situational and readily-apparent need that can only be met, or is traditionally met, by law enforcement officers; and (2) are subject to the same balancing test: the police action is lawful if the need for it outweighed its intrusiveness.

There are, however, three significant differences between community caretaking and exigent circumstances. First, community caretaking situations are, by definition, not as dangerous as traditional exigent circumstances.112 This means that searches and seizures based on community caretaking will ordinarily be upheld only if the officers’ response was relatively nonintrusive. Second, an intrusion based on a community caretaking interest may be deemed unlawful if the court finds that the officers’ sole motivation was to make an arrest or obtain evidence.113 As the California Supreme Court explained, “[C]ourts must be especially vigilant in guarding against subterfuge, that is, a false reliance upon the personal safety or property protection rationale when the real purpose was to seek out evidence of crime.”114

Third, unlike police actions that are based on exigent circumstances, officers are not expected to respond to every situation that could be justified by a community caretaking interest. As the New York Court of Appeals explained:

[W]e neither want nor authorize police to seize people or premises to remedy what might be characterized as minor irritants. People sometimes create cooking odors or make noise to the point where neighbors complain. But as we live in a free society, we do not expect the police to react to such relatively minor com- plaints by breaking down the door.115

Still, it may happen occasionally that the officers cannot just ignore the problem just because it might be classified as a “minor irritant.” For example, in U.S. v. Rohrig 116 officers responded to a report of loud music coming from Rohrig’s house. The time was 1:30 A.M., and the music was so loud that the officers could hear it about a block away. As they pulled up, several “pajama-clad neighbors emerged from their homes to complain about the noise.” The officers knocked on Rohrig’s door and “hollered to announce their presence” but no one responded. Having no apparent alternatives (other than leaving the neighbors at the mercy of Rohrig’s thunderous speakers), the officers entered the house through an unlocked door and saw wall-to-wall marijuana plants. Not only did the court rule that the officers’ response was appropriate, it noted the absurdity of prohibiting them from assisting the neighbors:

[I]f we insist on holding to the warrant requirement under these circumstances, we in effect tell Defendant’s neighbors that “mere” loud and disruptive noise in the middle of the night does not pose “enough” of an emergency to warrant an immediate response, perhaps because such a situation ‘only’ threatens the neighbors’ tranquility rather than their lives or property. We doubt that this result would comport with the neighbors’ understanding of “reasonableness.”

Intrusiveness of Response

So far we have been discussing how the courts determine the strength of the need to enter a residence or take other action in response to an exigent circumstance. Now, having determined the importance of taking action, the courts must weigh this circumstance against the intrusiveness of the officers’ actions. And if the need was equal to or greater than the intrusiveness, the police response will be deemed lawful. Otherwise, it won’t.

But, in addition to the abstract intrusiveness of the officers’ response (or sometimes in place of it), the courts will focus more on whether the officers responded to the threat in a reasonable manner,117 which essentially means that their response displayed a “sense of proportion.” 118

Officers are not, however, required to utilize the least intrusive means of defusing the emergency. As the Supreme Court explained, “The question is not simply whether some other alternative was available, but whether the police acted unreason- ably in failing to recognize or to pursue it.”119 Furthermore, the courts have been cautioned to avoid second-guessing the officers’ assessment of the need for immediate action so long as it was within the bounds of reasonableness. Thus, the California Court of Appeal observed, “Of course, from the security of our lofty perspective, and despite our total lack of practical experience in the field, we might question whether or not those who physically confronted the danger in this instance, selected the ‘best’ course of action available.”120

Although it is not possible to rank the various police responses on an intrusiveness scale, there are some generalizations that can be made.

ENTERING A HOME: The most intrusive of the usual police responses to exigent circumstances is a forcible entry into a home. As the Supreme Court observed, “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”121 For this reason (as discussed earlier) the courts have consistently ruled that such an intrusive response can be justified only if the officers had probable cause to believe the threat would materialize.

Also note that, in addition to the physical entry, the courts will consider whether the officers gave notice of their identity and purpose beforehand. Again quoting the Supreme Court, “[T]he method of an officer’s entry into a dwelling [is] among the factors to be considered.”122

AFTER ENTRY: While a full search is permitted if it was reasonably necessary,123 it is seldom necessary because most threats can be defused by conducting a “sweep” or “walk-through” to either locate a fleeing suspect or determine if there is anyone inside who needs help or who might destroy evidence. Then, if necessary, officers can secure the premises pending issuance of a warrant, whether by removing the occupants or preventing anyone from entering. For example, in Segura v. United States the Supreme Court pointed out that “[i]n this case, the agents entered and secured the apartment from within. Arguably, the wiser course would have been to depart immediately and secure the premises from the outside by a ‘stakeout’ once the security check revealed that no one other than those taken into custody were in the apartment. But the method actually employed does not require a different result.”124

TRESPASSING: Merely walking on a suspect’s property may constitute a technical search, but it is relatively nonintrusive, and will be deemed reasonable if the officers’ entry was restricted to areas that needed to be checked in order to defuse the threat.125 If there was reason to believe that an emergency existed inside a home, an officer’s act of looking through windows from outside is also considered nonintrusive.126

MAKE SAFE: If the emergency resulted from a dangerous condition (e.g., a meth lab), officers may do those things that are reasonably necessary to eliminate the threat, including a search. As the Fourth Circuit observed, “The authority to defuse a threat in an emergency necessarily includes the authority to conduct searches aimed at uncovering the threat’s scope.”127

SEARCHING CELL PHONES: Officers may access the contents of a cell phone without a warrant if they reasonably believed that immediate access was necessary to defuse an imminent danger of death or serious physical injury.128 Otherwise, officers must seize the phone to protect it and its contents from destruction, then seek a warrant.129

Vacating and Reentry

Officers who have entered a home or business pursuant to exigent circumstances must leave within a reasonable amount of time after the threat to people, property, or evidence has been eliminated. As noted, however, they may secure the premises (i.e., temporarily “seize” it) pending the issuance of a search warrant if they reasonably believed they had probable cause for one.130 Thus, officers must avoid what happened in the landmark case of Mincey v. Arizona.131

Here, an officer in Tucson was killed by a drug dealer when officers entered the suspect’s apartment to execute a search warrant. After the premises were secured, officers supervised the removal of the officer’s body and made sure that “the scene was disturbed as little as possible.” These actions were plainly permissible. But then the officers “proceeded to gather evidence.” In fact, they remained in the home for four days, during which time they “opened drawers, closets, and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination.” All told, they seized between 200 and 300 items.

In the Supreme Court, the government urged the Court to establish a “crime scene exception” to the warrant requirement or, at least, a “murder scene” exception. The Court refused. Although it acknowledged that the crime under investigation was exceptionally serious, and although the officers had probable cause for a warrant that could have authorized an intensive search, it ruled that “the warrantless search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.”

When to vacate

Like most things involving exigent circumstances, there is no simple test to determine the point at which officers must stop and obtain court authorization for any further intrusion. So we will simply review a few examples of situations in which the courts addressed the issue.

EXPLOSIVES: The emergency created by the presence of explosives in a structure ended when the danger has been eliminated.132

DANGEROUS CHEMICALS: The emergency ended when the imminent danger of fire or explosion has been eliminated.133

STRUCTURE FIRES: The exigency caused by a residential or commercial structure fire does not automatically end when the fire is under control or even with the “dousing of the last flame.”430 Instead, it ends after investigators have deter- mined the cause and origin of the fire,135 and have determined that the premises were safe for re-occupancy.136 The amount of time that is reasonably necessary for such purposes will depend on the size of the structure; conditions that made the investigation more time-consuming, such as heavy smoke and poor lighting; and whether there were other circumstances that delayed the investigation, such as the presence of explosives or dangerous chemicals.137 Still, a warrant will be required when investigators have concluded that the cause was arson and their purpose had shifted from finding the cause and origin to conducting a criminal investigation.138

SHOOTING INSIDE A RESIDENCE: The emergency created by a murder or non-fatal shooting in a residence ends after officers had determined there were no suspects or other victims on the scene, the victim had been removed, and there was no threat to evidence located inside.139

BARRICADED SUSPECT: The threat ends after the suspect was arrested and officers determined there were no victims or other suspects inside.140

BURGLARY IN PROGRESS: The emergency ends after officers arrested the burglar and had deter- mined there were no accomplices on the premises, and that the residents were not in need of emergency aid.141

Reentry

After vacating the premises, officers may not reenter unless they have a search warrant or consent.142 Exception: Officers may reenter for the limited purpose of seizing evidence if (1) they saw the evidence in plain view while they were lawfully inside; (2) due to exigent circumstances, it was impractical to seize the evidence before the emergency was neutralized; and (3) the officers had not surrendered their control of the premises.143

For example, in People v. Superior Court (Quinn) 144 an officer entered a house on grounds of hot pursuit. While looking for the suspect, he saw drugs which he did not seize because the suspect was still at large. Immediately after arresting the suspect and removing him from the premises, the officer reentered the residence and retrieved the drugs. Although the emergency was over when the officer reentered, the court ruled the reentry was lawful because the officer “did not trench upon any constitutionally protected interest by returning for the single purpose of retrieving contraband he had observed moments before in the bedroom but had not then been in a position to seize.”

Similarly, in Cleaver v. Superior Court two men shot two officers in Oakland then, after a shootout, barricaded themselves in the basement of a home. About two hours later, officers launched a tear gas canister into the building, causing a fire.145 One of the suspects was shot and killed as he fled; the other, Cleaver, was arrested. Evidence technicians were initially unable to enter the basement because of smoke and tear gas. But about three hours later one of them entered and seized some evidence but could not conduct a thorough search because of impaired visibility. About six hours later, an officer entered and recovered additional evidence.

In upholding both reentries, the California Supreme Court said, “The 11:30 P.M. search was thwarted by residual smoke, fumes and tear gas. The relatively short delays until 2 A.M. and 8 A.M. necessitated by darkness and continuing impaired visibility, cannot be deemed constitutionally improper or unreasonable under all the circumstances yet in this case.”

References

1. Graham v. Connor (1989) 490 U.S. 386, 397.
2. Michigan v. Tyler (1978) 436 U.S. 499, 509.
3. U.S. v. Williams (6th Cir. 2003) 354 F.3d 497, 503.
4. In re Sealed Case (D.C. Cir. 1998) 153 F.3d 759, 766.
5. U.S. v. Collins (7th Cir. 2007) 510 F.3d 697, 699.
6. See Ker v. California (1963) 374 U.S. 38 [fresh pursuit].
7. Cady v. Dombrowski (1973) 413 U.S. 433, 441 [gun in a vehicle].
8. Murdock v. Stout (9th Cir. 1995) 54 F.3d 1437, 1440.
9. See, for example, People v. Ray (1999) 21 Cal.4th 464, 471.
10. See Illinois v. McArthur (2001) 531 U.S. 326, 331 [“[W]e balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.”]; Illinois v. Lidster (2004) 540 U.S. 419, 426 [“[I]n judging reasonableness, we look to the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”].
11. Mora v. City of Gaithersburg (4th Cir. 2008) 519 F.3d 216, 224.
12. See People v. Lujano (2014) 229 Cal.App.4th 175, 183 [“But to fall within the exigent circumstances exception to the warrant requirement, an arrest or detention within a home or dwelling must be supported by both probable cause and the existence of exigent circumstances.”]; U.S. v. Alaimalo (9th Cir. 2002) 313 F.3d 1188, 1193 [“Even when exigent circumstances exist, police officers must have probable cause to support a warrantless entry into a home.”].
13. See United States v. Cortez (1981) 449 U.S. 411, 418; People v. Ammons (1980) 103 Cal.App.3d 20, 30.
14. U.S. v. Klump (2nd Cir. 2008) 536 F.3d 113, 117-18.
15. See People v. Superior Court (Peebles) (1970) 6 Cal.App.3d 379, 382 [“One way of testing the reasonableness of the search is to ask ourselves what the situation would have looked like had another bomb exploded, killing a number of people”]; U.S. v. Black (9th Cir. 2007) 482 F.3d 1035, 1040 [“the police would be harshly criticized had they not investigated”].
16. People v. Bradford (1972) 28 Cal.App.3d 695, 704.
17. People v. Ledesma (2003) 106 Cal.App.4th 857, 866. Also see Illinois v. Gates (1983) 462 U.S. 213, 232.
18. See People v. Wells (2006) 38 Cal.4th 1078, 1083; U.S. v. Wheat (8th Cir. 2001) 278 F.3d 722, 732, fn.8.
19. Florida v. J.L. (2000) 529 U.S. 266, 273-74.
20. U.S. v. Holloway (11th Cir. 2002) 290 F.3d 1331, 1339.
21. See U.S. v. Russell (9th Cir. 2006) 436 F.3d 1086, 1090 [“Given the substantial confusion and conflicting information, the police were justified in searching the house”].
22. Ames v. King County (9th Cir. 2017) 846 F.3d 340, 348. Also see Florida v. J.L. (2000) 529 U.S. 266, 273-74; Navarette v. California (2014) U.S. [134 S.Ct. 1683]; People v. Coulombe (2000) 86 Cal.App.4th 52, 58 [report of man with a gun “in a throng of thousands of New Year’s Eve celebrants”].
23. 23 See People v. Koch (1989) 209 Cal.App.3d 770, 782; People v. Camilleri (1990) 220 Cal.App.3d 1199, 1206 [“Implicit in this burden is a showing there was insufficient time to obtain a warrant.”]; Bailey v. Newland (9th Cir. 2001) 263 F.3d 1022, 1033 [“[T]he presence of exigent circumstances necessarily implies that there is insufficient time to obtain a warrant”].
24. People v. Blackwell (1983) 147 Cal.App.3d 646, 652.
25. See Brendlin v. California (2007) 551 U.S. 249, 260 [what matters is “the intent of the police as objectively manifested”].
26. (2006) 547 U.S. 398, 404. Edited.
27. People v. Ray (1999) 21 Cal.4th 464, 471.
28. (1999) 21 Cal.4th 464, 477.
29. See In re Jessie L. (1982) 131 Cal.App.3d 202, 214 [“The police did not idly sit by during a period in which a warrant could have been obtained, but promptly gathered together a number of officers and went to the locations involved.”]; People v. Stegman (1985) 164 Cal.App.3d 936, 945 [OK to wait for backup]; U.S. v. Najar (10th Cir. 2006) 451 F.3d 710, 719 [“A delay caused by a reasonable investigation into the situation facing the officers does not obviate the existence of an emergency.”].
30. People v. Duncan (1986) 42 Cal.3d 91, 104.
31. People v. Riddle (1978) 83 Cal.App.3d 563, 572.
32. Mora v. City of Gaithersburg (4th Cir. 2008) 519 F.3d 216, 228.
33. (2006) 547 U.S. 398. Also see People v. Pou (2017) 11 Cal.App.5th 143, 149 [“[e]ven a casual review of [Stuart] reveals officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid doctrine”].
34. People v. Roberts (1956) 47 Cal.2d 374.
35. People v. Zabelle (1996) 50 Cal.App.4th 1282, 1287-88 [“The circumstances justified the officer’s belief that defendant might have overdosed on heroin. Thus, his entry into the room to check on defendant’s condition was justified.”].
36. People v. Troyer (2011) 51 Cal.4th 599, 607. Also see People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1013.
37. People v. Soldoff (1980) 112 Cal.App.3d 1.
38. U.S. v. Arch (7th Cir. 1993) 7 F.3d 1300, 1304-5.
39. Schreiber v. Moe (6th Cir. 2010) 596 F.3d 323, 330-31.
40. People v. Sutton (1976) 65 Cal.App.3d 341.
41. U.S. v. Wooden (7th Cir. 2008) 551 F.3d 647, 650.
42. Johnson v. City of Memphis (6th Cir. 2010) 617 F.3d 864, 869. Also see Hanson v. Dane County (7th Cir. 2010) 608 F.3d 335, 337 [“A lack of an answer on the return of an incomplete emergency call implies that the caller is unable to pick up the phone—because of injury, illness (a heart attack, for example), or a threat of violence.”]. Compare U.S. v. Martinez (10th Cir. 2011) 643 F.3d 1292, 1297-98 [a 911 call in which the dispatcher hears only static does not warrant the same concern as a call in which the caller hung up].
43. U.S. v. Najar (10th Cir. 2006) 451 F.3d 710, 720.
44. U.S. v. Snipe (9th Cir. 2008) 515 F.3d 947.
45. Hanson v. Dane County (7th Cir. 2010) 608 F.3d 335, 338.
46. U.S. v. Martinez (9th Cir. 2005) 406 F.3d 1160, 1164. Also see Tierney v. Davidson (2nd Cir. 1998) 13 F.3d 189, 197 [the courts “have recognized the combustible nature of domestic disputes, and have accorded great latitude to an office’s belief that warrantless entry was justified by exigent circumstances.”].
47. (2nd Cir. 1998) 133 F.3d 189, 197.
48. U.S. v. Brooks (9th Cir. 2004) 367 F.3d 1128, 1136.
49. (2017) 11 Cal.App.5th 143, 152.
50. (1994) 26 Cal.App.4th 247.
51. See People v. Brown (2015) 61 Cal.4th 968, 982 [a call to 911 constitutes “[a]nother indicator of veracity”]; People v. Dolly (2007) 40 Cal.4th 458, 467 [“[M]erely calling 911 and having a recorded telephone conversation risks the possibility that the police could trace the call or identify the caller by his voice.”].
52. Navarette v. California (2014) U.S. [134 S.Ct. 1683, 1689].
53. (D.C. Cir. 1992) 956 F.2d 1216, 1217.
54. (2009) 46 Cal.4th 1136.
55. (1987) 197 Cal.App.3d 262.
56. See People v. Duncan (1986) 42 Cal.3d 91, 103 [“[T]here is no absolute rule that can accommodate every warrantless entry into premises housing a drug laboratory . . . the emergency nature of each situation must be evaluated on its own facts.”].
57. See People v. Duncan (1986) 42 Cal.3d 91, 105 [“The extremely volatile nature of chemicals, including ether, involved in the production of drugs such as PCP and methamphetamine creates a dangerous environment”]; People v. Messina (1985) 165 Cal.App.3d 937, 943 [“[T]he types of chemicals used to manufacture methamphetamines are extremely hazardous to health.”]; U.S. v. Cervantes (9th Cir. 2000) 219 F.3d 882, 891-91 [“sickening chemical odor” that “might be associated with methamphetamine production”].
58. See People v. Osuna (1986) 187 Cal.App.3d 845, 852 [expert witness “stressed that the primary danger associated with ethyl ether anhydrous is flammability. Its vapors are capable of traveling long distances and can be ignited by a gas heater, a catalytic converter or a car, a cigarette”].
59. (1985) 164 Cal.App.3d 936.
60. See People v. Wharton (1991) 53 Cal.3d 522, 578 [“Because there existed the possibility that the victim was still alive, we cannot fault the officers’ decision to investigate further.”]; U.S. v. Richardson (7th Cir. 2000) 208 F.3d 626 [officers testified that “laypersons without medical knowledge are not in a position to determine whether a person is dead or alive”].
61. Wayne v. U.S. (D.C. Cir. 1963) 318 F.2d 205, 213, 241.
62. U.S. v. Stafford (9th Cir. 2005) 416 F.3d 1068, 1074 [“[A] report of a dead body can easily lead officers to believe that someone might be in need of immediate aid.”].
63. See People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1023; Gov. Code, §§ 27491.1, 27491.2.
64. See Illinois v. McArthur (2001) 531 U.S. 326, 330; Mincey v. Arizona (1978) 437 U.S. 385, 392 [no “crime scene” exception].
65. See People v. Lujano (2014) 229 Cal.App.4th 175, 183 [“But to fall within the exigent circumstances exception to the warrant requirement, an arrest or detention within a home or dwelling must be supported by both probable cause and the existence of exigent circumstances.”]; People v. Strider (2009) 177 Cal.App.4th 1393, 1399.
66. See People v. Troyer (2011) 51 Cal.4th 599, 607 [“We decline to resolve here what appears to be a debate over semantics. Under either approach [i.e., reasonableness vs. probable cause] our task is to determine whether there was an objectively reasonable basis [for the entry].”]; U.S. v. Alaimalo (9th Cir. 2002) 313 F.3d 1188, 1193 [“Even when exigent circumstances exist, police officers must have probable cause to support a warrantless entry into a home.”].
67. See People v. Herrera (1975) 52 Cal.App.3d 177, 182 [the more serious the crime, “the greater the governmental interest in its prevention and detection”]; People v. Higgins (1994) 26 Cal.App.4th 247, 252 [“If the suspected offense is extremely minor, a warrantless home entry will almost inevitably be unreasonable under the Fourth Amendment.”].
68. See Kentucky v. King (2011) 563 U.S. 452, 460 [“to prevent the imminent destruction of evidence has long been recognized as a sufficient justification for a warrantless search”]; Missouri v. McNeely (2013) U.S. [133 S.Ct. 1552, 1559].
69. See Illinois v. McArthur (2001) 531 U.S. 326, 331-32; People v. Thompson (2006) 38 Cal.4th 811, 820-22.
70. See People v. Senkir (1972) 26 Cal.App.3d 411, 421; People v. Farley (2009) 46 Cal.4th 1053, 1099.
71. See Illinois v. McArthur (2001) 531 U.S. 326, 331-32.
72. See Illinois v. McArthur (2001) 531 U.S. 326, 336; People v. Torres (2012) 205 Cal.App.4th 989, 995.
73. See People v. Koch (1989) 209 Cal.App.3d 770, 782; Ferdin v. Superior Court (1974) 36 Cal.App.3d 774, 782.
74. See Richards v. Wisconsin (1997) 520 U.S. 385, 391; People v. Bennett (1998) 17 Cal.4th 373, 384; People v. Camilleri (1990) 220 Cal.App.3d 1199, 1209 [“Where the emergency is the imminent destruction of evidence, the government agents must have an objectively reasonable basis for believing there is someone inside the residence who has reason to destroy the evidence.”].
75. See U.S. v. Moreno (2nd Cir. 2012) 701 F.3d 64, 75; Richards v. Wisconsin (1997) 520 U.S. 385, 396.
76. People v. Ortiz (1995) 32 Cal.App.4th 286, 293.
77. People v. Seaton (2001) 26 Cal.4th 598, 632.
78. People v. Hill (1970) 3 Cal.App.3d 294, 299-300.
79. People v. Baldwin (1976) 62 Cal.App.3d 727, 739.
80. U.S. v. Andino (2nd Cir. 2014) 768 F.3d 94, 100-101.
81. People v. Clark (1968) 262 Cal.App.2d 471, 475.
82. See Illinois v. McArthur (2001) 531 U.S. 326, 332 [suspect knew that his wife was cooperating with officers and they reasonably could have concluded that he would, if given the chance, get rid of the drugs fast].
83. U.S. v. Socey (D.C. Cir. 1988) 846 F.2d 1439, 1445, fn.6.
84. (1974) 37 Cal.App.3d 20, 33. Also see U.S. v. Ramirez (8th Cir. 2012) 676 F.3d 755, 764.
85. Kentucky v. King (2011) 563 U.S. 452, 469 [“the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment”].
86. United States v. Santana (1976) 427 U.S. 38, 43. Edited.
87. (1976) 427 U.S. 38.
88. People v. Wilkins (1993) 14 Cal.App.4th 761.
89. People v. Superior Court (Quinn) (1978) 83 Cal.App.3d 609, 615-16.
90. People v. Abes (1985) 174 Cal.App.3d 796.
91. People v. Lloyd (1989) 216 Cal.App.3d 1425.
92. Stanton v. Sims (2013) U.S. [134 S.Ct. 3, 4]. Also see In re Lavoyne M. (1990) 221 Cal.App.3d 154, 159.
93. United States v. Santana (1976) 427 U.S. 38, 43.
94. Welsh v. Wisconsin (1984) 466 U.S. 740, 743. Also see White v. Hefel (7th Cir. 2017) 875 F.3d 350, 356 [“the police did not lose track of [the suspect] for any signficant time”].
95. (1979) 95 Cal.App.3d 11.
96. See People v. Escudero (1979) 23 Cal.3d 800, 808.
97. See Minnesota v. Olson (1990) 495 U.S. 91, 100; People v. Escudero (1979) 23 Cal.3d 800, 811.
98. See People v. Williams (1989) 48 Cal.3d 1112, 1139 [“no unjustified delay”].
99. See People v. Benton (1978) 77 Cal.App.3d 322, 327; People v. Smith (1966) 63 Cal.2d 779, 797.
100. (1979) 99 Cal.App.3d 754, 766.
101. People v. McDowell (1988) 46 Cal.3d 551.
102. People v. Manderscheid (2002) 99 Cal.App.4th 355, 362.
103. Warden v. Hayden (1967) 387 U.S. 294, 298.
104. People v. Williams (1989) 48 Cal.3d 1112.
105. People v. Gilbert (1965) 63 Cal.2d 690.
106. U.S v. Rodriguez-Morales (1st Cir. 1991) 929 F.2d 780, 784-85.
107. Cady v. Dombrowski (1973) 413 U.S. 433, 441.
108. See, for example, People v. Smith (1972) 7 Cal.3d 282, 286.
109. People v. Ray (1999) 21 Cal.4th 464, 472, 480. Also see U.S. v. Rohrig (6th Cir. 1996) 98 F.3d 1506, 1519.
110. See Cady v. Dombrowski (1973) 413 U.S. 433, 441; People v. Ray (1999) 21 Cal.4th 464, 472; U.S. v. Rodriguez-Morales (1st Cir. 1991) 929 F.2d 780, 785.
111. People v. Williams (2017) 15 Cal.App.5th 111.
112. See People v. Ray (1999) 21 Cal.4th 464, 476-77; U.S. v. Rodriguez-Morales (1st Cir. 1991) 929 F.2d 780, 785.
113. See People v. Morton (2004) 114 Cal.App.4th 1039, 1047; U.S. v. Orozco (9th Cir. 2017) 858 F.3d 1204, 1216.
114. People v. Ray (1999) 21 Cal.4th 464, 477.
115. People v. Molnar (N.Y. App. 2002) 774 N.E.2d 738, 741.
116. (6th Cir. 1996) 98 F.3d 1506.
117. See Mincey v. Arizona (1978) 437 U.S. 385, 393 [“[A] warrantless search must be strictly circumscribed by the exigencies which justify its initiation.”]; Thompson v. Louisiana (1985) 469 U.S. 17, 22 [“Petitioner’s call for help can hardly be seen as an invitation to the general public that would have converted her home into the sort of public place for which no warrant to search would be necessary.”]; People v. Gentry (1992) 7 Cal.App.4th 1255, 1261, fn.2 [“The nature of the exigency defines the scope of the search”]; Henderson v. Simi Valley (9th Cir. 2002) 305 F.3d 1052, 1060 [“The officers’ intrusion into the house was limited to those particular areas where entry was required to retrieve [the owner’s daughter’s] property. The officers played no active role in [the] court-ordered foray. They merely stood by to prevent a beach of the peace while the court’s order was implemented.”].
118. McDonald v. United States (1948) 335 U.S. 451, 459. Also see People v. Ray (1999) 21 Cal.4th 464, 477 [the officers’ conduct “must be carefully limited to achieving the objective which justified the entry”].
119. United States v. Sharpe (1985) 470 U.S. 675, 686.
120. People v. Osuna (1986) 187 Cal.App.3d 845, 855.Also see San Francisco v. Sheehan (2015)
121. Payton v. New York (1980) 445 U.S. 573, 585.
122. Wilson v. Arkansas (1995) 514 U.S. 927, 934. U.S. [135 S.Ct.1765, 1777].
123. See People v. Sirhan (1972) 7 Cal.3d 710, 740 [“Only a thorough search in the house could insure that there was no evidence therein of such a conspiracy.”]; Mora v. City of Gaithersburg (4th Cir. 2008) 519 F.3d 216, 226 [“The authority to defuse a threat in an emergency necessarily includes the authority to conduct searches aimed at uncovering the threat’s scope.” ].
124. (1984) 468 U.S. 796, 811. Also see Illinois v. McArthur (2001) 531 U.S. 326, 336 [“Temporarily keeping a person from entering his home is considerably less intrusive than police entry.”]; Mincey v. Arizona (1978) 437 U.S. 385, 394 [any threat to the destruction of evidence was minimized because of “the police guard at the apartment”]; People v. Bennett (1998) 17 Cal.4th 373, 387.
125. See Florida v. Jardines (2013) U.S. [133 S.Ct. 1409, 1415]; People v. Lujano (2014) 229 Cal.App.4th 175, 183-84; People v. Gemmill (2008) 162 Cal.App.4th 958, 970; People v. Camacho (2000) 23 Cal.4th 824, 836; People v. Manderscheid (2002) 99 Cal.App.4th 355, 364.
126. People v. Gemmill (2008) 162 Cal.App.4th 958, 971.
127. Mora v. City of Gaithersburg (4th Cir. 2008) 519 F.3d 216, 226.
128. See Pen. Code § 1546.1(c)(6).
129. See Riley v. California (2014) U.S. [134 S.Ct. 2473, 2486]; U.S. v. Henry (1st Cir. 2016) 827 F.3d 16, 27.
130. See Illinois v. McArthur (2001) 531 U.S. 326, 331-32; People v. Bennett (1998) 17 Cal.4th 373, 386.
131. (1978) 437 U.S. 385.
132. See People v. Remiro (1979) 89 Cal.App.3d 809, 830-31.
133. See People v. Avalos (1988) 203 Cal.App.3d 1517, 1523; People v. Duncan (1986) 42 Cal.3d 91, 105; People v. Blackwell (1983) 147 Cal.App.3d 646, 653; People v. Abes (1985) 174 Cal.App.3d 796, 807-9.
134. Michigan v. Tyler (1978) 436 U.S. 499, 510.
135. See Michigan v. Tyler (1978) 436 U.S. 499, 510; Michigan v. Clifford (1984) 464 U.S. 287, 293; People v. Glance (1989) 209 Cal.App.3d 836, 845 [officers may “remain for a reasonable time in order to ascertain the cause and origin of the blaze”].
136. See U.S. v. Buckmaster (6th Cir. 2007) 485 F.3d 873, 876.
137. See Michigan v. Tyler (1978) 436 U.S. 499, 510, fn.6; People v. Avalos (1988) 203 Cal.App.3d 1517, 1523 [meth lab.
138. See Michigan v. Clifford (1984) 464 U.S. 287, 298, fn.9; U.S. v. Rahman (7th Cir. 2015) 805 F.3d 822, 833.
139. See People v. Amaya (1979) 93 Cal.App.3d 424, 430-32; People v. Boragno (1991) 232 Cal.App.3d 378, 392.
140. See People v. Keener (1983) 148 Cal.App.3d 73, 77.
141. See People v. Bradley (1982) 132 Cal.App.3d 737.
142. See People v. Lucero (1988) 44 Cal.3d 1006, 1018.
143. See San Francisco v. Sheehan (2015) U.S. [135 S.Ct. 1765, 1775]; People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1014.
144. (1978) 83 Cal.App.3d 609.
145. (1979) 24 Cal.3d 297.

Contributors and Attributions

• Larry Alvarez (Faculty of Administration of Justice Instructor and Administration of Justice at College of the Canyons)