The Exigent Circumstances Exception to the Warrant Requirement

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1991

H. Patrick Furman University of Colorado Law School

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Citation Information H. Patrick Furman, The Exigent Circumstances Exception to the Warrant Requirement, 20 COLO. LAW. 1167 (1991), available at https://scholar.law.colorado.edu/articles/886.

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The Exigent Circumstances Exception To the Warrant Requirement

by H. Patrick Furman

the warrant requirement in a situation Colorado Supreme Courts as an exigent U.S. Constitution guaran- where probable cause already exists. circumstance that may justify a war- tees the right of the people to The prosecution bears the burden of es- rantless search.9 In Warden v. Hayden,10 hebe Fourthfree from Amendment unreasonable to the tablishing probable cause, just as it witnesses followed a robbery suspect Tsearches and seizures. Colorado Consti- bears the burden of establishing the exi- from the scene of the robbery to a home. tution Article II, § 7 makes the same gent circumstance itself.6 The police arrived minutes later. The guarantee in virtually identical lan- As with other exceptions to the war- U.S. Supreme Court was satisfied that guage. Searches conducted without warrant requirement, the exigent circum- the exigencies of the situation justified rants are "per se unreasonable under stances exception must be narrowly an entry into and a thorough search of the Fourth Amendment-subject only drawn. If doubt exists about whether the home. The search included such ac- to few specifically established and well the decision to search was reasonable, tions as looking in the washing machine delineated exceptions."' One of these ex- "such doubt must be resolved in favor and the tank of a recently flushed toilet, ceptions is the exigent circumstances of the defendant whose property was which were approved "as part of an ef- exception, 2 which this article discusses. searched."7 fort to find a suspected felon, armed, The exigent circumstances exception within the house into which he had run General Principles and is broken down into three main cate- only minutes before."' Procedures gories: As suggested above, the facts of this A defendant, as the moving party in a 1) the bona fide pursuit of a fleeing case fit into more than one category of suppression hearing, has the burden of suspect; exigent circumstances. The Court was proof. However, because a warrantless 2) situations that create a risk of the concerned with both officer safety and search and seizure is presumptively ille- immediate destruction of evidence; the possibility of further flight. gal, the defendant can satisfy that bur- and An issue that may arise in the context 3) colorable claims of an emergency of a claim that the "hot pursuit" excep- den merely by establishing that the po- 8 lice did not have a warrant.' The prose- threatening the life of another. tion applies to a warrantless search is cution then has the burden of establish- Proof that a particular set of facts falls whether the pursuit was bona fide. In ing an exception to the warrant require- into any of these categories suffices to People v. Santisteven, the Colorado Court ment. 4 This general rule applies with meet the requirements of the exigent of Appeals rejected a claim of hot pur- full force at hearings in which it is ar- circumstances exception. However, it is suit when gued that the exigent circumstances ex- not unusual for a particular set of facts the police had information that the ception applies.5 to fall into more than one category. For defendant was in his own home, ap- Proof that an exigent circumstance example, a suspect who flees with a hos- proximately two hours after the stab- exists requires, first and foremost, proof tage may create a situation that falls in- that probable cause exists. An exigent to both the bona fide pursuit and the This newsletter is prepared by the life-threatening emergency categories. circumstance is not a substitute for prob- Criminal Law Section of the Colorado able cause. It is merely an exception to The following sections discuss the three categories in detail. Bar Association. This month's column was written by H. Patrick Furman, Column Ed.: H. Patrick Furman Hot Pursuit Boulder, a clinical professor of law at of the University of Colorado The bona fide pursuit of a fleeing sus- the Legal Aid & Defender Programat School of Law, Boulder-492-8126 pect is recognized by both the U.S. and the University of ColoradoLaw School. 1168 THE COLORADO LAWYER June 1168 THE COLORADO LAWYER June

bing. They had no evidence that he Evidence of the arrest of a person leav- The court held that the necessary exi- was leaving and, indeed, the house ing a house that is under surveillance is gent circumstance was provided by the was surrounded by six uniformed offi- not an exigent circumstance in the ab- fact that alcohol in the blood begins to di- cers to prevent that eventuality.12 sence of some evidence that those in the minish shortly after the drinking stops, Conversely, in a similar situation, the house would be alarmed by that per- regardless of what the police or the sus- Colorado Supreme Court found that the son's absence." pect does. 22 hot pursuit exception extended to a sus- The danger of loss or destruction pect who was surrounded hours after must be more than speculative. As the Emergency Exception 3 his offense. In People v. Drake, the po- Colorado Supreme Court stated in Peo- In the 1983 case ofPeople v. Clements, lice had probable cause to believe the ple v. Thrner, the Colorado Supreme Court stated that defendant was involved in a murder [t]o justify a warrantless entry and "a bona fide public emergency is a vari- earlier in the day and that he was plan- seizure on the basis of destruction of ant of the exigent circumstances excep- ning to leave town. They traced the de- evidence, the perceived danger must tion to the warrant requirement."23 The fendant to a motel room and surround- be real and immediate.' 8 court, having previously recognized the ed it. The court found that the police The simple fact that the evidence in- existence of the emergency doctrine, reasonably feared that the defendant volved can be destroyed easily (like most first approved the application of the doc- might attempt to escape once it became drugs) does not, by itself, amount to trine in a 1977 case, People v. Amato.24 dark. This danger, coupled with the seri- proof that a real danger of loss or de- In Amato, police, fire and ambulance ousness of the offense and the danger struction exists.19 personnel were dispatched on an emer- that the defendant might destroy evi- gency call concerning a possible drug dence in the motel room, satisfied the overdose. They were directed to the court that exigent circumstances existed "A danger of the loss or bathroom of an apartment, where they to justify the warrantless arrest of the destruction of evidence arises found the defendant suffering an appar- defendant. ent drug overdose. Drug paraphernalia It is important to note that, in Drake, most frequently in drug were observed in plain view on a toilet more than one exigency existed. Both cases, because drugs often in the bathroom by a fireman, who point- the risk of flight and the danger of de- are easily destroyed." ed them out to a policeman. More para- struction of evidence were present and phernalia were found on the defendant's were used to justify the warrantless ar- person during a cursory search by the rest of the defendant and the search of police at the hospital. The trial court his motel room. The question of whether this exigent found that no emergency justified these circumstance exists must be evaluated warrantless searches and suppressed Destruction of Evidence in light of the principle that the police the items. The Colorado Supreme Court A danger of the loss or destruction of should obtain a warrant whenever feasi- reversed. evidence arises most frequently in drug ble. According to the Thrner court: The court did not engage in a detailed cases because drugs often are easily de- The question is whether there is a real analysis of the emergency exception. stroyed. The principles to be applied or substantial likelihood that the con- Rather, the court simply noted that the when the prosecution seeks the applica- traband or known evidence on the police and fire personnel were at the tion of this exception are reasonably premises might be removed or de- apartment in response to an emergency clear. stroyed before a warrant could be ob- call with the primary purpose of render- The burden of proving the applicabili- tained.20 ing assistance. They were not searching ty of the loss or destruction exception The loss or destruction exception also for evidence. They found it in plain view rests on the prosecution. In People v. arises in situations where the evidence in the bathroom. The court found that Garcia, the Colorado Supreme Court itself is transitory. The alcohol in a driv- these acts fit within even the "strictest stated: er's blood is the most common example possible formulation of the emergency The threat of immediate destruction of this type of evidence. The Colorado Su- rule."25 or removel of evidence constitutes an preme Court has held that evidence of In People v. Martin,26 the Court of Ap- exigent circumstance if the prosecu- the amount of alcohol in a driver's blood peals ruled on an emergency situation tion can demonstrate that the police can be admitted in a vehicular homicide that occurred when the defendant was had an articulable basis to justify a prosecution, even when it has been ob- injured in a fall from a balcony at the reasonable belief that evidence was tained over the driver's objection. It is home where she worked. The police and about to be removed or destroyed.14 admissible as long as: ambulance were called. As the defen- A reasonable belief that evidence is 1) there is probable cause to arrest dant was being transported to the hospi- about to be removed or destroyed has the driver on an alcohol-related tal, she expressed concern about a coat been proved to the satisfaction of the traffic offense; she had left in the home. The police Colorado Supreme Court by evidence 2) there is a clear indication that a went to get the coat and noticed some that the suspects actually have ob- blood test will provide useful evi- cash, which belonged to the defendant, served police surveillance.' 5 Evidence dence; lying on a counter. They decided to put that the suspects may be alerted to the 3) there are exigent circumstances the money in her coat. Before putting it presence of the police by the fact that that make it impractical to obtain in the coat pocket, a policeman looked in one of their confederates has been ar- a warrant; and the pocket, allegedly to make sure there rested also may serve to establish a rea- 4) the test is reasonable and is con- were no sharp objects in the pocket that sonable fear of destruction of evidence.16 ducted in a reasonable manner.21 might hurt him. Inside the pocket, he 1991 CRIMINAL LAW NEWSLETTER 1169 1991 CRIMINAL LAW NEWSLETTER 1169

saw a bindle. The bindle was found to During the car search, the police contain cocaine. found the switch described by the infor- Investigators The trial court denied the motion to mant, but they did not find any dyna- suppress, holding that the search of the mite. The police cleared the area, called coat pocket fell within the emergency the bomb squad and searched the defen- exception. The Court of Appeals af- dant's apartment. The search revealed firmed, rejecting the argument that any narcotics, not explosives. Based on this RONALD B. emergency ended once the defendant and other information, the police ob- was in the ambulance on the way to the tained a warrant to search the apart- rm. THOMAS, C.L.I. INVESTIGATIONS hospital. The court held that emergency ment. The trial court found no emergen- follow-up procedures fall within the cy and suppressed the use of the evi- PERSONAL INJURY scope of the emergency and that the de- dence obtained in the search. However, INVESTIGATOR cision to put the money in the coat pock- the Colorado Supreme Court reversed et was not unreasonable. The court fur- the order. * Detailed Witness Statements * Photography ther found that, in light of the police of- The court was satisfied that there * Professional Malpractice ficer's training and experience, his deci- was probable cause to believe an explo- * Analysis sions to check the pocket first and to sive device was located in the defen- * Comprehensive Reports seize and search the bindle were not un- dant's apartment and that the possible CIVIL CRIMINAL reasonable. presence of the device gave rise to exi- The Colorado Supreme Court recently gent circumstances that justified the * Financial & Personal noted some limits on the emergency doc- warrantless search. The court notes Background Investigations 27 * Serving Colorado for 25 Years trine. In People v. Wright, the defen- that the trial court should review the to- * Member of the National Assoc. dant was in an automobile accident. tality of the circumstances, including of Legal Investigators Paramedics gave her purse to a police the time necessary to obtain a warrant, officer, who brought it to the hospital the character of the investigation and CERTIFIED where the paramedics had taken the de- the risk posed by delay. The dynamite LEGAL INVESTIGATOR fendant. The defendant was coherent had great explosive force; a number of and under the care of hospital personnel people already had been evacuated from 875 SO. Colorado Blvd., Ste. 666 when the officer decided to look in her the area (an apartment complex); there Denver, CO 80222 purse for evidence of identification so was the danger of an explosion delayed Denver (303) 231-6196 Evergreen (303) 674-6295 that he could complete his reports. He by the timing device about which the de- found drugs and drug paraphernalia. fendant had bragged; and a warrant The trial court suppressed this evi- might take two to three hours to obtain. dence, and the Supreme Court affirmed, Based on all these factors, the Supreme rejecting the argument that this search Court stated, "We believe that an emer- was justified under the medical emergency situation justifying the warrant- gency exception to the warrant require- less entry was adequately established ment. The court found that there was no under the standards articulated in Mal- medical emergency because the defen- czewski." 29 dant already was receiving appropriate People v. Malczewski had involved the treatment, and the officer was not look- safety of a baby in an apartment.3 0 A po- ing for information to help in the treat- lice officer on routine patrol was told by ment. the defendant's wife that the defendant Another type of emergency situation had the couple's baby in the family that falls within the exigent circum- apartment. She was concerned about stances exception involves general the safety of the baby because the defen- threats to public safety. In People v. dant had been drinking. The officer Higbee,28 the Colorado Supreme Court went to the apartment and knocked on reversed a trial court order suppressing the door. The defendant came to the physical evidence seized during a search door, but did not open it. As the parties of the defendant's apartment. The search spoke through a window, the officer was based on the statement of a police could hear a baby crying in the back- informant-who had purchased a con- ground. After a while, the defendant trolled drug from the defendant-that brought the baby to the door. Eventual- the defendant had what appeared to be ly, the defendant began fighting with the dynamite rigged to a switch in his car. officer while still holding the baby. When The informant stated that the defen- a second officer arrived, the defendant dant bragged about how he could ex- was subdued. plode the dynamite either with the In Malczewski, the Colorado Supreme switch or by a timing device. The police Court held that the emergency excep- later observed the defendant carrying tion justified the warrantless entry into items from his car into his apartment. the defendant's apartment. The court They arrested him and searched his car. described the emergency exception in 1170 THE COLORADO LAWY ER June 1170 THE COLORADO LAWYER June terms somewhat broader than it used in sulting discovery and seizure of the Californiav. Carney, 471 U.S. 386 (1985), other cases: drugs was constitutionally permissible. People v. Cagle, 688 P.2d 718 (Colo. 1984); The emergency variant of the exigent The mere fact that the police suspected and bank records, United States v. Miller, circumstances exception requires a there was criminal activity afoot did not 425 U.S. 435 (1976), People v. DiGiacomo, showing of an immediate crisis inside turn their actions into a pretext for an 612 P.2d 1117 (Colo. 1980). 3. People v. Jansen, 713 P.2d 907 (Colo. unconstitutional criminal investigation. the home and the probability that po- 1986). lice assistance will be helpful in alle- 31 4. People v. Amato, 562 P.2d 422, 423 viating that crisis. Conclusion (Colo. 1977). The court also reiterated that the trial The exigent circumstances exception 5. Jansen, supra, note 3; McCall v. court should examine the totality of the to the warrant requirements is a flexi- People, 623 P.2d 397 (Colo. 1981). circumstances as they appeared to the ble exception and has been applied in a 6. Jansen,supra, note 3. police officer at the time of the warrant- variety of situations. However, practi- 7. Id. at 911-12; citing, Robinson v. State, less entry. tioners should remember that this ex- 388 So.2d 286 (Fla.App. 1980). 773 P.2d 1053 (Colo. A public emergency also was found to ception, like any other exception to the 8. People v. Miller, McCall, supra, note 5. exist in Clements.32 The emergency 1989); warrant requirement, should be nar- 9. Warden v. Hayden, 387 U.S. 294 arose when a police officer smelled ether rowly tailored. The state and federal con- (1967); Miller, supra,note 8. in the trunk of a car in an apartment stitutions, and the opinions interpreting 10. Warden, supra,note 9. complex parking lot. Expert testimony those constitutions, express unambigu- 11. Id. at 299. established that ether, when allowed to ous support for the principle that war- 12. 693 P.2d 1008, 1012 (Colo.App. 1984). stand, is unstable, spontaneously com- rants should be obtained whenever fea- 13. 785 P.2d 1257 (Colo. 1990). bustible and highly explosive. The police sible. Exigent circumstances may justify 14. Garcia, supra,note 1 at 581. searched the car under the supervision violating this principle, but claims of 15. People v. Gomez, 632 P.2d 538 (Colo. of hazardous materials experts and such exigencies always should be exam- 1981). found, in addition to the ether, con- ined with care. 16. People v. Bustam, 641 P.2d 968 (Colo. trolled substances and other incriminat- 1982). 17. People v. Turner, 660 P.2d 1284 (Colo. ing evidence. NOTES 1983). The trial court found that there was a 18. Id. at 1288. colorable claim of emergency but also 1. Katz v. United States, 389 U.S. 347, 19. Id.; Vale v. Louisiana, 399 U.S. 30 found that the police had "used the po- 357 (1967); People v. Garcia, 752 P.2d 570 (1970). tential emergency as a pretext for enter- (Colo. 1988). 20. Thrner, supra, note 17 at 1288. ing the trunk." The court further found 2. Other exceptions currently recognized 21. People v. Sutherland, 683 P.2d 1192 that the police could have alleviated the could arguably be said to include abandon- (Colo. 1984). emergency in a less intrusive manner.33 ment, People in the Interest of D.E.J., 686 22. Schmerber v. California,384 U.S. 757 P.2d 794 (Colo. 1984); consent, People v. (1966). Based on this finding, the trial court Lowe, 616 P.2d 118 (Colo. 1980); drug screens concluded that the discovery of the 23. People v. Clements, 661 P2d 267 (Colo. in connection with "sensitive" jobs, Skinner v. 1983). drugs in the trunk was not inadvertent. Railway Labor Executives Association, 489 24. Supra, note 4. Thus, the court found that the discovery U.S. 602 (1989); good faith mistake, Illinois 25. Id. at 424. was not covered by the plain-view ex- v. Krull, 480 U.S. 340 (1987); searches inci- 26. 19 Colo.Law. 2488 (Dec. 1990) (App.No. ception. The trial court suppressed the dent to arrest, Maryland v. Buie, 110 S.Ct. 88CA1130, annc'd 10/11/90). evidence seized from the trunk. 1093 (1990); inventory searches, People v. In- 27. 20 Colo.Law. 801 (April 1991) (S.Ct.No. The Supreme Court reversed the sup- man, 765 P.2d 577 (Colo. 1988); plain view 90SA403, annc'd 2/11/91). pression order, holding that the trial discovery, Horton v. California, 110 S.Ct. 28. 802 P.2d 1085 (Colo. 1990). court finding that an emergency existed 2301 (1990); and roadblocks, People v. Rister, 29. Id. at 1091. 803 P.2d 483 (Colo. 1990). Additionally, the 30. 744 P.2d 62 (Colo. 1987). was well founded and that the police ac- probable cause and warrant requirements tions to neutralize the danger were rea- 31. Id. at 66. are significantly modified in cases involving 32. Supra, note 23. sonable and narrowly tailored. The schoolchildren, New Jersey v. TL.O., 469 33. Id. at 270. court specifically held that the entry in- U.S. 325 (1985); probationers, Griffin v. Wis- to the trunk was reasonable and the re- consin, 483 U.S. 868 (1987); automobiles,

Former CBA Employee Wins National Award

Linda Kennerly, practice development administrator for Rothgerber, Appel, Powers & Johnson and former employee in the CBA communications department, has won a first place award in a national communications contest for her work on the CBA's Colorado Pledge project. She will receive the award from the National Federation of Press Women ("NFPW") in the category of "Information to the Media: Media Kit" at the NFPW's annual convention in Orlando, Florida. The award is for the materials written, compiled and distributed to news reporters at the Colorado Pledge project news con- ference in October, which was hosted by CBA President Jerry Conover. The announcement received national publicity, with broadcast coverage on the NBC Nightly News, CNN and local channels 2, 4, 7 and 9. Radio coverage included all stations on the CNN Business Network and local stations, with a highlight on Paul Harvey's radio program. The story was carried by newspa- pers across the U.S., including The Wall Street Journal.