DOCSLIB.ORG

The Homicide Scene Exception to the Fourth Amendment Warrant

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Homicide Scene Exception to the Fourth Amendment Warrant Journal of Criminal Law and Criminology Volume 71 Article 8 Issue 3 Fall Fall 1980 The omicH ide Scene Exception to the Fourth Amendment Warrant Requirement: A Dead Issue Bruce D. Hausknecht Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Bruce D. Hausknecht, The omicH ide Scene Exception to the Fourth Amendment Warrant Requirement: A Dead Issue, 71 J. Crim. L. & Criminology 289 (1980) This Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/80/7103-0289$02.00/0 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 71, No. 3 Copyright @ 1980 by Northwestern University School of Law Printedin U.S.A. THE "HOMICIDE SCENE" EXCEPTION TO THE FOURTH AMENDMENT WARRANT REQUIREMENT: A DEAD ISSUE? The Supreme Court traditionally has used very tion5 allows police officers, who make a legitimate narrow language in cases involving warrantless warrantless entty into a dwelling in response to searches. The Court has stated that "searches con- reports of a death or great bodily injury, to conduct ducted outside the judicial process, without prior a warrantless search of the dwelling for suspects, approval by judge or magistrate, are unreasonable victims, and evidence related to the crime.6 The per se under the fourth amendment-subject only homicide scene exception has not received unani- to a few specifically established and well-delineated mous recognition by the lower courts,7 and the exceptions."' Notwithstanding this precise lan- Supreme Court in its first consideration of the guage, the exceptions recognized by the Court have exception in Mincey v. Arizonas appeared to decide been neither "few" nor "well-delineated." Rather against its recognition. Upon closer examination, than adopt a narrow construction of the fourth however, it appears that the homicide scene excep- amendment, the Court has liberally interpreted tion has actually survived Mincey under the protec- the amendment and expanded its exceptions in tion of other warrant exceptions and deserves rec- 2 order to avoid inequitable results. During the past ognition in its own right in certain cases. This ten years some lower federal and state courts, re- comment will explore the emergence of the homi- sponding more to the practical results of Supreme cide scene exception, the effect of the Mincey deci- Court warrantless search cases than to the Court's sion upon the exception, its relationship to other rhetoric, have recognized a significant new excep- exceptions, and the acceptable scope of a warrant- tion to the fourth amendmentYs3 warrant require- less homicide scene search under present law. ment: the "homicide scene" exception.4 This excep- I. THE ARGUMENT FOR THE HOMICIDE SCENE 1Katz v. United States, 389 U.S. 347, 357 (1967). 2See Haddad, Well-Delineated Exceptions, Claims of Sham, EXCEPTION and FourfoldProbable Cause, 68J. CRM. L. & C. 198 (1977). Before looking at the arguments for and against 'The fourth amendment provides: the homicide scene exception, it is necessary to The right of the people to be secure in their examine the Supreme Court's test for establishing persons, houses, papers, and effects, against unrea- new warrant exceptions as expressed in dictum in sonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable 5The controversy between the homicide scene excep- cause, supported by Oath or affirmation, and par- tion and the warrant requirement only comes into play ticularly describing the place to be searched, and in areas where someone, usually a defendant, has a the person or things to be seized. reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. CONsT. amend. IV. U.S. 128, 133-34 (1978). No such expectation of privacy 'See United States v. Birrell, 470 F.2d 113 (2d Cir. exists when a body is found in a public place, and no 1972); Brown v. Jones, 407 F. Supp. 686 (W.D. Tex. question as to the right of the police to conduct a war- 1974), rev'don other grounds, 489 F.2d 1040 (5th Cir. 1974); rantless search of the public place arises. No cases have Stevens v. State, 443 P.2d 600 (Alaska 1968), cert. denied, been found where the homicide scene exception arose 393 U.S. 1039 (1969); State v. Mincey, 115 Ariz. 472, 566 other than in situations involving private dwellings or P.2d 273 (1977) (en bane), rev'd sub nom. Mincey v. hotel rooms. Arizona, 437 U.S. 385 (1978); State v. Duke, 110 Ariz. 6 The notion that a warrantless entry is justified in a 320, 518 P.2d 570 (1974) (en banc); People v. Superior life-threatening, emergency situation has become an ac- Court, 41 Cat. App. 3d 636, 116 Cal. Rptr. 24 (1974); cepted part of the fourth amendment doctrine. See, e.g., People v. Wallace, 31 Cal. App. 3d 865, 107 Cal. Rptr. Vale v. Louisiana, 399 U.S. 30 (1970); United States v. 659 (1973); People v. King, 54 Ill. 2d 291, 296 N.E.2d Barone, 330 F.2d 543 (2d Cir. 1964), cert denied, 377 U.S. 731 (1973); State v. Chapman, 250 A.2d 203 (Me. 1969); 1004 (1964); Patrick v. State, 227 A.2d 486 (Del. 1967). Davis v. State, 236 Md. "389, 204 A.2d (1964), cert. denied, Consequently, this comment is limited to the permissible 380 U.S. 966 (1964); State v. Sutton, 454 S.W.2d 481 scope of searches that occur after a justified warrantless (Mo. 1970) (en banc); Geary v. State, 91 Nev. 784, 544 entry.7 P.2d 417 (1975); Brown v. State, 475 S.W.2d 938 (Tex. See, e.g., Sample v. Eyman, 469 F.2d 819 (9th Cir. Crim. App. 1971); Parsons v. State, 160 Tex. Crim. 387, 1972); Root v. Gauper, 438 F.2d 361 (8th Cir. 1971); 271 S.W.2d 643 (1953), cert. denied, 348 U.S. 837 (1954); People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976) State v. Oakes, 129 Vt. 241, 276 A.2d 18 (1971), cert. (en bane); State v. Pires, 55 Wis. 2d 597, 201 N.W.2d denied, 404 U.S. 965 (1971); Longuest v. State, 495 P.2d 153 (1972). 575 (Wyo. 1972), cert. denied, 409 U.S. 1006 (1972). 8 437 U.S. 385 (1978). COMMENTS [Vol. 71 Camara v. Municipal Court.9 Although Camara in- able cause for searching any particular car. How- volved an administrative search, the test has gen- ever, I should candidly strive hard to sustain such 0 eral application:' an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that In assessing whether the public interest demands indignity if it was the only way to save a threatened creation of a general exception to the Fourth life and detect a vicious crime. But I should not Amendment's warrant requirement, the question is strain to sustain such a roadblock and universal not whether the public interest justifies the type of search to salvage a few bottles of bourbon and catch 15 search in question, but whether the authority to a bootlegger. search should be evidenced by a warrant, which in turn depends in part upon whether the burden of Thus, in a murder scene situation, the discovery of 6 obtaining a warrant is likely to frustrate the govern- the body may "heighten" the exigent quality and mental purpose behind the search.... Unfortu- justify a broader search than would be permissible nately, there can be no ready test for determining if the victim merely were slightly wounded. reasonableness other than by balancing the need to In more recent cases, the Supreme Court has search against the invasion which the search en- refused to adopt the Brinegar dissent and consider 1 7 tails. the gravity of the offense. In Katz v. United States1 The key to the Camara test is the Court's concern the Court refused to exempt the surveillance of a with the "frustration of governmental purpose." telephone booth from the usual warrant require- The Camara test strikes a balance between the need ments. The majority opinion sidestepped the issue to search and the invasion which results from the of national security and gravity of the offense, relegating the subject to a footnote.'8 However, search. The length of time required to obtain a warrant is an important factor in determining Justices Douglas and Brennan addressed the issue in a separate concurring opinion. The two Justices whether the governmental purpose is likely to be would require a warrant even where the crime frustrated,1 2 but it is not the only factor courts involved was treason, the worst crime of all.' 9 They must consider. Courts also must weigh public pol- 3 intended to "respect the present lines of distinction icy considerations in the balance.' and not improvise because a particular crime seems One element of public policy is the gravity of 20 the offense. The Justices have discussed both sides particularly heinous." In Mincey v. Arizona, the of this issue. In his dissent in Brinegar v. United Court again declined to hold that the seriousness States,14 Justice Jackson stated the argument for of the offense under investigation itself creates exigent circumstances of the kind that under the considering the gravity of the offense when creating 2 exceptions to the warrant requirement: fourth amendment justify a warrantless search.
Load more

Recommended publications
  • Warrantless Entries Into Private Homes by Mpd Officers
    WARRANTLESS ENTRIES INTO PRIVATE HOMES BY MPD OFFICERS REPORT AND RECOMMENDATIONS OF THE POLICE COMPLAINTS BOARD TO MAYOR VINCENT C. GRAY, THE COUNCIL OF THE DISTRICT OF COLUMBIA, AND CHIEF OF POLICE CATHY L. LANIER June 12, 2013 POLICE COMPLAINTS BOARD Kurt Vorndran, Chair Assistant Chief Patrick A. Burke Iris Chavez Karl M. Fraser Margaret A. Moore 1400 I Street, NW, Suite 700 Washington, DC 20005 (202) 727-3838 Website: www.policecomplaints.dc.gov Table of Contents I. Introduction and Overview ............................................................................................1 II. Complaints Received by OPC .......................................................................................2 III. Current Policies and Practices .......................................................................................5 IV. Legal and Policy Concerns ............................................................................................7 V. Best Practices .................................................................................................................8 VI. Recommendations ........................................................................................................11 VII. Conclusion ...................................................................................................................13 I. INTRODUCTION AND OVERVIEW Pursuant to the Fourth Amendment of the United States Constitution, every citizen is guaranteed the right to be free from unreasonable searches and seizures. When the police
    [Show full text]
  • Fourth Amendment Litigation
    Still the American Frontier: Fourth Amendment Litigation Deja Vishny September 2012 United States Constitution: The Fourth Amendment 1 Wisconsin State Constitution Article 1 Sec. 11 The Exclusionary Rule The Fruit of the Poisonous Tree Doctrine Attenuation Inevitable Discovery Independent Source Other exceptions to the Fruit of the Poisonous Tree Doctrine Applicability of the Fourth Amendment: The Expectation of Privacy Cars Sample list of areas the court has found to private and non-private. Deemed Non-Private: Standing & Overnight Guests Searches by Private Parties Requirement of Search Warrant Determination of probable cause Definition of the Home: Curtilage Permissible scope of search warrants Plain View Good Faith Knock and Announce Challenging Search Warrants Permissible warrantless entries and searches in homes and businesses Exception: Search Incident to Arrest Exception: Protective Sweep Exception: Plain View Exception: Exigent Circumstances : The Emergency Doctrine Exception: Exigent Circumstances: Hot Pursuit Exception: Imminent Destruction of Evidence Warrantless searches without entry Consent Searches Who may consent to entry and searches of the home Scope of consent Seizures of Persons: The Terry Doctrine Defining a Seizure Permissible Length of Temporary Seizures Permissible reasons for a Seizure: 2 Seizures bases on anonymous tips Seizures on Public Transportation Requests for Identification Roadblocks: Reasonable Suspicion: Frisk of Suspects Scope of Terry Frisk Seizures of Property Arrest Probable Cause for Arrest Warrantless
    [Show full text]
  • 1/91 Crimpro Outline I) Basic Principles
    Note: This outline is a textbook-only outline of Prof. S’s first syllabus. It does not cover in- class material (to any great degree) nor the second syllabus. Crimpro Outline I) Basic Principles – Police Discretion A) NEW FEDERALISM IDEA. Courts make a floor ; states can always give you more protection. B) What is a criminal case? How far does the doctrine stretch? 1) Criminal cases do not always (and, indeed, do not usually ) require jail and prison. 2) Having the state as a party does not always imply criminality in a case. 3) Basic definition: Something is criminal if the legislature has defined it as such. 4) This distinction can be incredibly important. Civil cases do not always carry the same rights and procedural safeguards as criminal cases. (a) *US v. LO Ward (US 1980, 2): Supreme Court holds that a penalty imposed upon persons discharging hazardous substances into navigable waters was a civil penalty, and thus reporting requirements attached thereto did not violate the Fifth Amendment. 5) Criminal/Civil distinction has two levels (a) Whether Congress/state actor, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label over the other. (b) Where the actor has indicated an intention, there is a further inquiry into to whether the statutory scheme is so punitive in effect or purpose to negate that intention. (US. v. Ward) 6) An example of judicial analysis: Commitment of Sex Offenders. (a) *Allen v. Illinois (US 1986, 2): Commitment proceedings under the Illinois Sexually Dangerous Persons Act were not criminal.
    [Show full text]
  • State V Storm
    IN THE SUPREME COURT OF IOWA No. 16–0362 Filed June 30, 2017 Amended September 18, 2017 STATE OF IOWA, Appellee, vs. CHRISTOPHER GEORGE STORM, Appellant. Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge. Defendant appeals his conviction claiming automobile exception to search warrant requirement should be abandoned. DISTRICT COURT JUDGMENT AFFIRMED. Daniel J. Rothman of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik and Louis S. Sloven, Assistant Attorneys General, for appellee. 2 WATERMAN, Justice. In this appeal, we must decide whether to abandon the automobile exception to the search warrant requirement under article I, section 8 of the Iowa Constitution. In State v. Gaskins, we did not reach that issue, but members of this court noted the rationale for the exception may be eroded by technological advances enabling police to obtain warrants from the scene of a traffic stop. 866 N.W.2d 1, 17 (Iowa 2015) (Cady, C.J., concurring specially). The defendant driver in today’s case was lawfully stopped for a seat belt violation. The deputy smelled marijuana and searched the vehicle, discovering marijuana packaged for resale. The defendant was charged with possession with intent to deliver in violation of Iowa Code section 124.401(1)(d) (2015). He filed a motion to suppress, claiming this warrantless search violated the Iowa Constitution because police can now obtain warrants electronically from the side of the road. The district court denied the motion after an evidentiary hearing that included testimony that it would have taken well over an hour to obtain a search warrant.
    [Show full text]
  • The Knock-And-Announce Rule and Police Arrests: Evaluating Alternative Deterrents to Exclusion for Rule Violations
    \\jciprod01\productn\S\SAN\48-1\san103.txt unknown Seq: 1 3-JAN-14 14:43 The Knock-and-Announce Rule and Police Arrests: Evaluating Alternative Deterrents to Exclusion for Rule Violations By DR. CHRISTOPHER TOTTEN† & DR. SUTHAM COBKIT(CHEURPRAKOBKIT)‡ * Introduction IN ARRIVING AT THE DETERMINATION that the exclusionary rule no longer applies to knock-and-announce violations,1 the Supreme Court’s rationale in Hudson v. Michigan2 included the idea that factors other than exclusion exist to prevent police misconduct concerning the knock-and-announce rule.3 Particular examples of these alterna- tive factors relied upon by the Court are improved training, educa- tion, and internal discipline of police: † Dr. Christopher Totten is an Associate Professor of Criminal Justice (Law) in the Department of Sociology and Criminal Justice at Kennesaw State University. He has a JD and LLM from Georgetown University Law Center and an AB from Princeton University. He is the criminal law commentator for Volumes 46 through 50 of the Criminal Law Bulletin. ‡ Dr. Sutham Cobkit (Cheurprakobkit) is a Professor of Criminal Justice and Director of the Master of Science in Criminal Justice Program in the Department of Sociology and Criminal Justice at Kennesaw State University. He has a PhD in Criminal Justice from Sam Houston State University. * Both authors would like to thank the College of Humanities and Social Sciences at Kennesaw State University for providing a grant that partially funded the study described in this Article. 1. The knock-and-announce rule usually requires police to knock and to give notice to occupants of the officer’s presence and authority prior to entering a residence to make an arrest or conduct a search.
    [Show full text]
  • Kentucky V. King in the Supreme Court
    Warrantless, Police-Triggered Exigent Searches: Kentucky v. King in the Supreme Court Charles Doyle Senior Specialist in American Public Law June 17, 2011 Congressional Research Service 7-5700 www.crs.gov R41871 CRS Report for Congress Prepared for Members and Committees of Congress Warrantless, Police-Triggered Exigent Searches: Kentucky v. King in the Supreme Court Summary Authorities may enter and search a home without a warrant if they have probable cause and reason to believe that evidence is being destroyed within the home. So declared the United States Supreme Court in an 8-1 decision, Kentucky v. King, 131 S.Ct. 1849 (2011)(No. 09-1272). The Kentucky Supreme Court had overturned King’s conviction for marijuana possession and drug dealing, because the evidence upon which it was based had been secured following a warrantless search which failed to conform with that court’s restrictions under its “police-created exigencies” doctrine. The Fourth Amendment usually permits authorities to search a home only if they have both probable cause and a warrant. The warrant requirement may be excused in the presence of exigent circumstances, for instance, when it appears the occupants are attempting to flee or to destroy evidence. Leery lest authorities create exigent circumstances to avoid the warrant requirement, some state and lower federal courts had adopted one form or another of a police-created exigencies doctrine. The Court rejected each of these and endorsed searches conducted under the exigent circumstance exception, unless authorities had created the exigency by threatening to, or engaging in, activities which themselves violated the Fourth Amendment.
    [Show full text]
  • People V. Eichelberger: Police-Created Probable Cause As an Exigent Circumstance, 16 J
    UIC Law Review Volume 16 Issue 2 Article 9 Spring 1983 People v. Eichelberger: Police-Created Probable Cause as an Exigent Circumstance, 16 J. Marshall L. Rev. 457 (1983) Leslie B. Wulfsohn Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Civil Procedure Commons, and the Evidence Commons Recommended Citation Leslie B. Wulfsohn, People v. Eichelberger: Police-Created Probable Cause as an Exigent Circumstance, 16 J. Marshall L. Rev. 457 (1983) https://repository.law.uic.edu/lawreview/vol16/iss2/9 This Comments is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. PEOPLEv. EICHELBERGER:* POLICE-CREATED PROBABLE CAUSE AS AN EXIGENT CIRCUMSTANCE The United States Supreme Court has proscribed warrant- less nonconsensual arrest in a suspect's home absent exigent circumstances.' In People v. Eichelberger,2 the Illinois Supreme Court considered whether the warrantless arrest of the defend- ant in his hotel room fell under the exigency exception because the offense was committed in the arresting officer's presence. The Eichelbergercourt liberally construed the exigency require- ment by equating probable cause3 with exigency, 4 and held the 5 arrest valid. An informant, Michael Flavin, told Paxton, Illinois police of- ficers that James Eichelberger was selling drugs from his room in a local hotel.6 The officers decided to investigate, and Flavin * 91 Ill.2d 359, 438 N.E.2d 140, cert.
    [Show full text]
  • Using Civil Remedies for Criminal Behavior
    If you have issues viewing or accessing this file contact us at NCJRS.gov. U.S. Department of Justice Office of Justice Programs National Institute of Justice Using Civil Remedies for Criminal Behavior Rationale, Case Studies, and Constitutional Issues 151757 U.S. Department of Justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice. Permission to reproduce this G_" :material has been granted b)' Public Domain/OJP/NIJ u. S. Department of Justice to the National Criminal Justice Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permission of the ~ owner. ------------------------------------------------------ About the National Institute of Justice The National Institute of Justice, a component of the Office of Justice Programs, is the research and development agency of the U.S. Department of Justice. NIJ was established to prevent and reduce crime and to improve the criminal justice system. Specific mandates established by Congress in the Omnibus Crime Control and Safe Streets Act of 1968, as amended, and the Anti-Drug Abuse Act of 1988 direct the National Institute of Justice to: • Sponsor special projects and research and development programs that will improve and strengthen the criminal justice system and reduce or prevent crime. • Conduct national demonstration projects that employ innovative or promising approaches for improving criminal justice. • Develop new technologies to fight crime and improve criminal justice. • Evaluate the effectiveness of criminal justice programs and identify programs that promise to be successful if continued or repeated.
    [Show full text]
  • The Exigent Circumstances Exception to the Warrant Requirement
    University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 1991 The Exigent Circumstances Exception to the Warrant Requirement H. Patrick Furman University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Constitutional Law Commons, Criminal Procedure Commons, Evidence Commons, Fourth Amendment Commons, Law Enforcement and Corrections Commons, and the State and Local Government Law Commons 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. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 20 Colo. Law. 1167 1991 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Tue Aug 8 18:34:58 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information CRIMINAL LAW NEWSLETTER U The Exigent Circumstances Exception To the Warrant Requirement by H.
    [Show full text]
  • Developments in Federal Search and Seizure Law
    FEDERAL PUBLIC DEFENDER DISTRICT OF OREGON LISA C. HAY Federal Public Defender Oliver W. Loewy STEPHEN R. SADY 101 SW Main Street, Suite 1700 Elizabeth G. Daily Chief Deputy Defender Portland, OR 97204 Conor Huseby Gerald M. Needham Robert Hamilton Thomas J. Hester 503-326-2123 / Fax: 503-326-5524 Bryan Francesconi Ruben L. Iñiguez Ryan Costello Anthony D. Bornstein Branch Offices: Irina Hughes▲ Susan Russell Kurt D. Hermansen▲ Francesca Freccero 859 Willamette Street 15 Newtown Street Devin Huseby + C. Renée Manes Suite 200 Medford, OR 97501 Kimberly-Claire E. Seymour▲ Nell Brown Eugene, OR 97401 541-776-3630 Jessica Snyder Kristina Hellman 541-465-6937 Fax: 541-776-3624 Cassidy R. Rice Fidel Cassino-DuCloux Fax: 541-465-6975 Alison M. Clark In Memoriam Brian Butler + Nancy Bergeson Thomas E. Price 1951 – 2009 Michelle Sweet Mark Ahlemeyer ▲ Eugene Office Susan Wilk + Medford Office Research /Writing Attorney DEVELOPMENTS IN FEDERAL SEARCH AND SEIZURE LAW Stephen R. Sady Chief Deputy Federal Public Defender October 2020 Update Madeleine Rogers Law Clerk TABLE OF CONTENTS Page A. Introduction ..................................................................................................................... 3 B. What Constitutes A Search? ............................................................................................ 3 C. What Constitutes A Seizure? ......................................................................................... 14 D. Reasonable Expectation of Privacy ..............................................................................
    [Show full text]
  • The Exigent Circumstances Exception to the Fourth Amendment Warrant Requirement for Home Arrests: the Key to the Castle: State V
    Volume 13 Issue 2 Spring 1983 Spring 1983 Search and Seizure - The Exigent Circumstances Exception to the Fourth Amendment Warrant Requirement for Home Arrests: The Key to the Castle: State v. Chavez Kelly Hooper Burnham Recommended Citation Kelly H. Burnham, Search and Seizure - The Exigent Circumstances Exception to the Fourth Amendment Warrant Requirement for Home Arrests: The Key to the Castle: State v. Chavez, 13 N.M. L. Rev. 511 (1983). Available at: https://digitalrepository.unm.edu/nmlr/vol13/iss2/15 This Notes and Comments is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr NOTES SEARCH AND SEIZURE-THE EXIGENT CIRCUMSTANCES EXCEPTION TO THE FOURTH AMENDMENT WARRANT RE- QUIREMENT FOR HOME ARRESTS: THE KEY TO THE CAS- TLE: State v. Chavez INTRODUCTION In State v. Chavez, I the New Mexico Court of Appeals addressed the issue of whether the warrantless entry into a suspect's home to arrest him was justified by the existence of exigent circumstances. 2 The court upheld the arrest. It relied solely on the exigency of imminent escape of the suspect3 despite the weakness of this rationale and the existence of other important factors. The court designated the police entry as "in the nature of a hot pursuit." 4 In so limiting the basis for its decision, the court unnecessarily widened the exigent circumstances exception. It thus set a precedent which permits "the exception to swallow the rule. "' The court very likely reached the right result but should have adhered to a more 6 thorough analysis suggested by other exigent circumstances cases.
    [Show full text]
  • Exigent Circumstances
    Exigent Circumstances “Danger was in the air.”1 When danger is looming—serious and imminent danger—the rules under which officers must operate are instantly transformed. In fact, in a true emergency situation there is really only one operable rule: Do what is reasonably necessary. There are, of course, all kinds of emergencies. But there is one type that is so serious that it will justify one of the most intrusive actions officers can take: a warrantless, nonconsensual and forcible entry into a home. 2 This type of danger has its own designation under the law: It is called an “exigent circumstance.”3 It is essential that officers know what makes a situation “exigent” and what they may do in response. For one thing, a failure to take decisive action may result in loss of life, destruction of property or evidence, or the escape of a desperate and violent fugitive. On the other hand, misjudging a situation and overreacting may cause physical or mental trauma for the occupants of the house, engender disrespect for law enforcement, and result in the suppression of any evidence discovered inside.4 As you will see, the law of exigent circumstances requires that officers make two basic and sometimes difficult determinations. First, they must determine whether exigent circumstances exist or, at least, whether it reasonably appears they do. This subject is covered in this article. The second determination comes into play after officers have concluded they are, in fact, facing an emergency: What should they do about it? Should they cordon off the house and wait for a warrant? Make a forcible entry? Conduct a protective sweep, or maybe a full search? These questions and related issues are covered in the accompanying article entitled “Exigent Responses.” 1 People v.
    [Show full text]