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. 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 war- rant 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.