SEARCHES WITH EXIGENT CIRCUMSTANCES
Emergency Situations which Justify Warrantless Searches
Exigent or emergency circumstances may allow a search or partial search without a warrant where other exceptions to the general rule requiring search warrants for searches do not apply. Emergency situations include initial homicide investigations, fires, prevention of immediate destruction of evidence, rescue of persons in imminent danger, or hot pursuit of a suspect.
Exigent circumstances frequently exist in homicide investigations where a rapid search may reveal a victim for whom emergency medical care may prove essential or where an immediate response is required to disarm a killer. Once the initial response and search have been conducted, an extensive search with probable cause, but without a warrant, may no longer be justified under the concept of exigent circumstances. For example, in Mincey v. Arizona, 437 U.S. 385 (1978), the defendant killed a narcotics officer during an arrest within a dwelling. Immediately, other officers responded to look for other victims and the perpetrator. The warrantless police presence in the structure lasted four days during which officers collected an extensive amount of evidence. In Mincey, the Court held that once the crime scene had been stabilized, exigent circumstances no longer existed, even though the crime was a homicide. Regardless of the initial emergency, probable cause for a subsequent search existed and, consequently, police could and should have obtained a warrant for the search following the termination of the emergency.
In Cady v. Dombrowski, 413 U.S. 433 (1977), the court upheld the warrantless search and seizure of a firearm from the car trunk of an arrested police officer. The court reasoned that since a firearm was believed to be within the trunk and the car remained in an unsecured area, someone might break into the auto and take or make use of the weapon. While Cady did not involve the clear emergency of a homicide crime scene, the Court upheld the search under the theory of exigent circumstances.
Imminent Destruction of Evidence
Where circumstances indicated that a suspect or an accomplice was about to destroy or was actually in the process of destroying evidence, the Court hinted that exigent circumstances might permit a warrantless search and seizure. See Vale v. Louisiana, 399 U.S. 30 (1970). The Court appeared to validate the suggestion made in Vale when the Court approved a warrantless search and seizure of evidence from a suspect in a homicide case. Cupp v. Murphy, 412 U.S. 291 (1973). The Cupp court approved an immediate warrantless seizure of evidence from beneath the fingernails of the suspect when he began to clean his nails with a key. If the police had not acted instantly, the value of the evidence would have been forever lost.
Emergency situations may exist where a suspect under hot pursuit enters a store or dwelling. Police have no time to procure a warrant either for a search or an arrest, since to do so could result in injury to the innocent occupants or the escape of the fleeing felon. See New York v. Quarles, 467 U.S. 649 (1984), in the introduction to Chapter Three for an emergency in the Miranda context. In Warden v. Hayden, 387 U.S. 294 (1967), later in this lesson, police pursued a fleeing robbery suspect inside a dwelling which turned out to be the suspect's place of residence. The search of the home resulted in the capture of the suspect and the seizure of several weapons. The Hayden court upheld the warrantless search and seizure on the emergency doctrine of hot pursuit.
Exigent circumstances exist in situations where criminality may not initially be suspected. The report of a fire provides the right of fire fighters to enter private premises and to make warrantless seizures of criminal evidence. Where fire officials enter and remain on property following their initial emergency intrusion, no warrant is required. Consult Michigan v. Tyler, 436 U.S. 499 (1978). However, to return to the fire scene at a later time, for the purpose of investigating an arson, requires a warrant based on criminal probable cause. Michigan v. Clifford, 464 U.S. 287 (1984), later this lesson.
Where exigent circumstances permit a warrantless entry, evidence seized during the emergency response is generally admissible in court. However, where the emergency has clearly passed and law enforcement officials desire to make additional searches, courts generally require the use of a search warrant, absent the presence of some other exception to the warrant requirement. See Michigan v. Tyler, supra.
Exigent Circumstances and the Hot Pursuit Doctrine
WARDEN v. HAYDEN, Supreme Court of the United States (1967), 387 U.S. 294, 87 S.Ct. 1642
FACTS:
A robber entered the Diamond Cab Company, took some money, and ran from the premises. Two cab drivers followed the suspect to a particular house near the cab company offices. One driver contacted his dispatcher with a description of the fleeing robber. The police, following word from the cab company dispatcher, surrounded the house and entered without a warrant to search for the robber.
Officers searched the entire house and discovered Hayden in an upstairs bedroom feigning sleep. When no other male was discovered in the residence, police arrested Hayden. During the search, an officer discovered a shotgun and a pistol in a flush tank in a first-floor bathroom. An officer searching the basement uncovered a jacket and trousers matching those worm by the robber. A contemporaneous search of Hayden's bedroom revealed a clip of ammunition for the pistol and shells for the shotgun. All of the evidence was admitted into evidence without objection against Hayden at his robbery trial.
Following Hayden's robbery conviction he unsuccessfully sought relief in Maryland state courts. Although a federal district court subsequently denied habeas corpus relief, the Court of Appeals reversed the lower court. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where information has been relayed to police concerning the hot pursuit of an armed robber who has just entered a home, may police immediately enter the home without a warrant to search for both the individual and his weapon?
HELD: Yes.
RATIONALE:
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II
We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, "the exigencies of the situation made that course imperative." McDonald v. United States, 335 U.S. 451, 456. 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 and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.
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It is argued that, while the weapons, ammunition, and cap may have been seized in the course of a search for weapons, the officer who seized the clothing was searching neither for the suspect nor for weapons when he looked into the washing machine in which he found the clothing. But even if we assume, although we do not decide, that the exigent circumstances in this case made lawful a search without warrant only for the suspect or his weapons, it cannot be said on this record that the officer who found the clothes in the washing machine was not searching for weapons. He testified that he was searching for the man or the money, but his failure to state explicitly that he was searching for weapons, in the absence of a specific question to that effect, can hardly be accorded controlling weight. He knew that the robber was armed and he did not know that some weapons had been found at the time he opened the machine. In these circumstances the inference that he was in fact also looking for weapons in fully justified.
The judgment of the Court of Appeals is Reversed.
Notes
1. Emergency circumstances clearly make searches without warrants reasonable when, in the absence of the emergency, courts would not otherwise approve police conduct. However, the mere fact of a homicide investigation cannot be the talisman to avoid compliance with the Fourth Amendment.
In Mincey v. Arizona, 437 U.S. 385 (1978), defendant shot an undercover police officer in the defendant's place of residence and was promptly arrested. Police conducted a series of warrantless searches of Mincey's residence over a period of several days. In disapproving of the warrantless search, the Court held that since no evidence could be destroyed due to a police guard outside the door, a warrant should have been obtained to search the premises. The Court was unwilling to approve a "murder scene" or "crime scene" exception to the warrant requirement.
Similarly, the Court in Thompson v. Louisiana, 469 U.S. 17 (1984), required that the police conduct a subsequent search pursuant to a warrant. The police made an initial warrantless entry pursuant to a report of a homicide and conducted a limited search for victims and perpetrators, but later conducted a complete warrantless homicide investigation. Since no emergency remained following the initial search, police needed a warrant to conduct a second search.
2. Police intervention to prevent the immediate destruction of evidence has been approved in a variety of situations. In Cupp v. Murphy, 412 U.S. 291 (1973), police seized fingernail scrapings from the suspect in a homicide case. Police requested that the suspect permit them to have a sample of the material under his fingernails. Upon his refusal and attempt to clean his nails, police seized him and conducted a warrantless search of his fingernails. The search could not be justified as incident to an arrest but the Court approved the limited search of his fingernails as reasonable to prevent the destruction of the "highly evanescent evidence."
3. The mere fact of a drug arrest, where police hav probable cause to believe drugs were contained within the suspect's house, does not permit a warrantless search of the home. Police were satisfied that no one else was within the home but continued a successful search for drugs. The Court in Vale v. Louisiana, 399 U.S. 30 (1970), held that an arrest which occurs outside the residence of a suspect does not by itself create any exigent circumstances which would justify a warrantless search of the home.
Emergency Intrusion No Justification for Subsequent Warrantless Search
MICHIGAN v. CLIFFORD,Supreme Court of the United States (1984), 464 U.S. 287, 104 S.Ct. 641
FACTS:
While Raymond and Emma Clifford were away from their home, a fire of suspicious origin caused extensive damage to their residence. The fire was reported to the Detroit Fire Department which dispatched crews to the scene at 5:42 a.m. All fire equipment, fire fighters, and police left the scent at 7:04 a.m. the same day.
Information of the fire reached the Cliffords who instructed their insurance company to hire a crew to secure the house and take other necessary preservative procedures. While the boarding crew was still at work, two arson investigators arrived on the scene and seized a Coleman fuel can [normally contains white gasoline] located in plain view from the driveway.
When sufficient water had been pumped from the basement, by the crew, the arson investigators, without consent, administrative warrant, or criminal search warrant, entered the basement. They discovered more fuel cans, a crock pot, and a timer with attached wires. The arson investigators seized this evidence and continued the investigation.
The search of the remainder of the Clifford home disclosed bare walls from which all pictures and decoration had been removed and the bedroom dressers were full of old clothes. They located cassettes and wiring for a video tape player, but no machine. The evidence clearly pointed toward arson.
The Cliffords were charged with arson and subsequently filed a motion to suppress the evidence taken from the basement and the upstairs of the home, contending that the searches were for purposes of gathering criminal evidence. The trial court denied the motion, but the Cliffords took an interlocutory plea to the Michigan Court of Appeals. This Court reversed the trial court because it found no exigent circumstances to justify the search. The State of Michigan filed the petition for certiorari in which it argued that all administrative investigations should be exempt from the warrant requirement since such intrusions are reasonable.
PROCEDURAL QUESTION:
Where a search of fire-damaged premises is conducted by arson investigators several hours after the fire-related emergency has ceased, must the investigators obtain a criminal search warrant where they plan to search for evidence of criminal arson?
HELD: Yes.
Justice POWELL announced the judgment of the Court and delivered an opinion in which Justices BRENAN, WHITE, and MARSHALL joined.
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III
In its petition for certiorari, the State does not challenge the state court's finding that there were no exigent circumstances justifying the search of the Clifford's home. Instead, it asks us to exempt from the warrant requirement all administrative investigations into the cause and origin of a fire. We decline to do so.
In [Michigan v.]Tyler, we restated the Court's position that administrative searches generally require warrants. 436 U.S., at 504-508. See Marshall v. Barlow's, Inc., 436 U.S. 307 (1978); Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S. 541 (1967). We reaffirm that view again today. Except in certain carefully defined classes of cases, the nonconsensual entry and search of property is governed by the warrant requirement of the Fourth and Fourteenth Amendments. The constitutionality of warrantless and nonconsensual entries onto fire-damaged premises, therefore, normally turns on several factors: whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment; whether exigent circumstances justify the government intrusion regardless of any reasonable expectations of privacy; and, whether the object of the search is to determine the cause of the fire or top gather evidence of criminal activity.
A
We observed in Tyler that reasonable privacy expectations may remain in fire-damaged premises. "People may go on living in their homes or working in their offices after a fire. Even when that is impossible, private effects often remain on the fire-damaged premises." Tyler, 436 U.S., at 505. Privacy expectations will vary with the type of property, the amount of fire damage, the prior and continued use of the premises, and in some cases the owner's efforts to secure it against intruders. Some fires may be so devastating that no reasonable privacy interests remain in the ash and ruins, regardless of the owner's subjective expectations. The test essentially is an objective one: whether "the expectation [is] one that society is prepared to recognize as `reasonable" Katz v. United States, 389 U.S. 347, 361 (1967). (HARLAN, J., concurring). See also Smith v. Maryland, 442 U.S. 735, 739- 741 (1979). If reasonable privacy interests remain in the fire-damaged property, the warrant requirement applies, and any official entry must be made pursuant to a warrant in the absence of consent or exigent circumstances.
B
A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze. Moreover, in Tyler we held that once in the building, officials need no warrant to remain for "a reasonable time to investigate the cause of the blaze after it has been extinguished." 36 U.S., at 510. Where, however, reasonable expectations of privacy remain in the fire-damaged property, additional investigations begun after the fire has been extinguished and fire and police officials have left the scene, generally must be made pursuant to a warrant or the identification of some new exigency.
The aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant or to secure the owner's consent to inspect fire-damaged premises. Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases.
C
If a warrant is necessary, the object of the search determines the type of warrant required. If the primary object is to determine the cause and origin of a recent fire, an administrative warrant will suffice. To obtain such a warrant, fire officials need show only that a fire of undetermined origin has occurred on the premises, that the scope of the proposed search is reasonable and will not intrude unnecessarily on the fire victim's privacy, and that the search will be executed at a reasonable and convenient time.
If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched. If evidence of criminal activity is discovered during the course of a valid administrative search, it may be seized under the "plain view" doctrine. . . .
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The searches of the Clifford home, at least arguably, can be viewed as two separate ones: the delayed search of the basement area, followed by the extensive search of the residential portion of the house. We now apply the principles outlined above to each of these searches.
IV
The Clifford home was a two-and-one-half story brick and frame residence. . . . At the time Lieutenant Beyer and his partner arrived, the home was uninhabitable. But personal belongings remained, and the Cliffords had arranged to have the house secured against intrusion in their absence. Under these circumstances, and in light of the strong expectations of privacy associated with a home, we hold that the Cliffords retained reasonable privacy interests in their fire-damaged residence and that the post-fire investigations were subject to the warrant requirement. . . .
A
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In Tyler we upheld a warrantless post-fire search of a furniture store, despite the absence of exigent circumstances, on the ground that it was a continuation of a valid search begun immediately after the fire. . . .
As the State conceded at oral argument, this case is distinguishable for several reasons. First, the challenged search was not a continuation of an earlier search. Between the time the fire fighters had extinguished the blaze and left the scene and the arson investigators first arrived about 1:00 p.m. to begin their investigation, the Cliffords had taken steps to secure the privacy interests that remained in their residence against further intrusion. . . . Second, the privacy interests in the residence - particularly after the Cliffords had acted - were significantly greater than those in the fire-damaged furniture store, making the delay between the fire and the mid-day search unreasonable absent a warrant, consent, or exigent circumstances. . . . At least where a homeowner has made a reasonable effort to secure his fire-damaged home after the blaze has been extinguished and the fire and police units have left the scene, we hold that a subsequent post-fire search must be conducted pursuant to a warrant, consent, or the identification of some new exigency. So long as the primary purpose is to ascertain the cause of the fire, an administrative warrant will suffice.
B
Because the cause of the fire was then known, the search of the upper portions of the house described above, could only have been a search to gather evidence of the crime of arson. Absent exigent circumstances, such a search requires a criminal warrant. . . . As soon as the investigators determined that the fire had originated in the basement and had been caused by the crock pot and timer found beneath the basement stairs, the scope of their search was limited to the basement area. Although the investigators could have used whatever evidence they discovered in the basement to establish probable cause to search the remainder of the house, they could not lawfully undertake that search without a prior judicial determination that a successful showing of probable cause had been made. Because there were no exigent circumstances justifying the upstairs search, and it was undertaken without a prior showing of probable cause before an independent judicial officer, we hold that this search of a home was unreasonable under the Fourth and Fourteenth Amendments, regardless of the validity of the basement search. . . .
It is so ordered.
Notes
1. Once firefighters have extinguished a fire and have performed preliminary searches for the causes of a fire, exigent circumstances which justified the original entry have concluded. A subsequent entry, detached from the original entry, generally requires either consent or a warrant according to the Court in Michigan v. Tyler, 436 U.S. 499 (1978). In Tyler, arson investigators entered the fire-damaged premises on successive occasions without a warrant for the purposes of building a case against Tyler. The Court held that entries made during or shortly after the fire could be included under the theory of exigent circumstances, but subsequent entries days later required a warrant.
2. While fire fighters or other law enforcement personnel are permitted to enter a building for which a fire call has been received under the exigent circumstances theory, any evidence which police or fire fighters find in plain view and which is indicative of criminality may be seized under the Plain View Doctrine. Consult the prior lesson for the plain view doctrine.
INVENTORY SEARCHES, THE REASONABLENESS THEORY SUPPORTING THE SEARCH
Inventory Searches
An inventory search is a search of the contents of a motor vehicle, purse, coat, back pack, or other item which has lawfully come to the possession of the police. Searches of these items may also be justified under the category of search incident to arrest. The items discovered are typically described on an inventory form and signed by the officers conducting the search. The procedure assists in ensuring that the arrestee's personal effects are returned to him/her at the termination of custody.
Probable Cause not Required
An inventory search constitutes an exception to both the dictate of probable cause and the usual requirement of a warrant. While inventory searches usually develop where police have lawfully impounded a motor vehicle, the legal principle is not so limited. The principle has been applied to search the effects of an arrestee who was in the process of being booked into jail. Illinois v. Lafayette, 462 U.S. 604 (1983), later in this lesson.
Justification for Warrantless Search
The rationale behind an inventory search includes the need to protect the arrestee's property while it remains in police custody, to protect police officers from false claims of loss or destruction, and to ensure that the contents in custody pose no danger to the custodians of the property. South Dakota v. Opperman, 428 U.S. 364 (1976). To conduct such a search of a motor vehicle's contents or of an arrestee's personal effects has been deemed reasonable under the Fourth Amendment in the absence of a warrant or of probable cause.
The existence of the legal rationale does not permit an inventory search unless the law enforcement organization has promulgated rules and regulations designed to search. In Florida v. Wells, 495 U.S. 1 (1990), later in this lesson, the Supreme Court held that searches conducted under the inventory theory must be made pursuant to standardized criteria or an established routine designed to guide an officer during the inventory. The existence of an established policy ensures that an officer does not use the inventory search theory as a ruse or a pretext to support a generalized search for evidence for which probable cause does not exist. In Wells, the Florida Highway Patrol had no policy whatsoever governing searches under an inventory theory. The lack of direction given to law enforcement officers proved fatal to the use of an inventory search.
The regulations governing inventory searches may be formulated to permit an officer to exercise considerable discretion concerning where to search and which articles merit scrutiny of their contents. The Court in Colorado v. Bertine, 479 U.S. 367 (1987), later in this lesson, sanctioned the use of discretion in cases where the officer was pursuing legitimate governmental goals and was not operating under bad faith. The policy could allow or require officers to open all containers or could permit them to open only those likely to contain valuable articles. An inventory search of an automobile would permit a search in all areas prone to contain personal property, but would not include invasive techniques such as partial disassembly of the motor vehicle.
Evidence of criminal activity uncovered during an inventory search conducted in accordance with policy directives produces evidence which will be fully admissible in court unless some other rule or policy excludes the evidence.
Inventory Searches and Police Discretion
COLORADO v. BERTINE, Supreme Court of the United States (1987), 479 U.S. 367, 107 S.Ct. 738
FACTS:
A Boulder, Colorado police officer lawfully arrested respondent Bertine for operating a motor vehicle under the influence of alcohol. The officer called for a tow truck to remove Mr. Bertine's motor vehicle and proceeded to conduct an immediate inventory search of the contents of the motor vehicle. Inside the vehicle, the officer discovered a backpack which contained various controlled substances, money, and cocaine paraphernalia Probable cause to search the motor vehicle and its contents did not exist. The search conducted by the officer followed local police requirements which ordered a detailed inspection and inventory of all impounded vehicles.
The trial court noted that although the search was "somewhat slipshod" in the manner in which it was conducted, the practice did not violate the Fourth Amendment. However, the trial court held that an inventory search as conducted in this case violated relevant portions of the State of Colorado constitution. The Supreme Court of Colorado upheld the trial court decision but based the affirmation on the Constitution of the United States rather than on the Colorado state constitution. The Supreme Court of the United States granted Colorado's petition for a writ of certiorari.
PROCEDURAL QUESTION:
Where police officers have discretion pursuant to a departmental inventory search policy of either conducting an inventory search of an impounded vehicle and its contents or parking the vehicle in a public parking place, does such police discretion leave the inventory search policy without sufficient standards under the Fourth Amendment?
HELD: No.
RATIONALE:
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[A]n inventory search may be "reasonable" under the Fourth Amendment even though it is not conducted pursuant to warrant based upon probable cause. In [South Dakota v.] Opperman [428 U.S. 364 (1976)], this Court assessed the reasonableness of an inventory search of the glove compartment in an abandoned automobile impounded by the police. We found that inventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.
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In our more recent decision, [Illinois v.] Lafayette [462 U.S. 640 (1983)], a police officer conducted an inventory search of the contents of a shoulder bag in the possession of an individual being taken into custody. In deciding whether this search was reasonable, we recognized that the search served legitimate governmental interests similar to those identified in Opperman. We determined that those interests outweighed the individual's Fourth Amendment interests and upheld the search.
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In the present case, as in Opperman and Lafayette, there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. In addition, the governmental interests justifying the inventory searches in Opperman and Lafayette are nearly the same as those which obtain here. In each case, the police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police of others that may have been posed by the property.
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The Supreme Court of Colorado also expressed the view that the search in this case was unreasonable because Bertine's van was towed to a secure, lighted facility and because Bertine himself could have been offered the opportunity to make other arrangements for the safekeeping of his property. But the security of the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of them or dangerous instrumentalities.
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Bertine finally argues that the inventory search of his van was unconstitutional because departmental regulations gave the police officers discretion to choose between impounding his van and parking and locking it in a public parking place. The Supreme Court of Colorado did not rely on this argument in reaching its conclusion, and we reject it. Nothing in Opperman or Lafayette prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Here, the discretion afforded the Boulder police was exercised in light of standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it. There was no showing that the police chose to impound Bertine's van in order to investigate suspected criminal activity.
While both Opperman and Lafayette are distinguishable from the present case on their facts, we think that the principles enunciated in those cases govern the present one. The judgment of the Supreme Court of Colorado is therefore Reversed.
Notes
1. Inventory searches of lawfully impounded automobiles received clear judicial approval in South Dakota v. Opperman, 428 U.S. 364 (1976). In Opperman, police towed a motor vehicle which had articles of personal property clearly visible within the car. No probable cause existed to believe the automobile contained any substance which offended the law. An officer, in the process of taking inventory, observed some drugs in the glove compartment. The Court upheld the seizure of the drugs on the theory that the officer had been engaged in a caretaking search of a lawfully impounded vehicle and such search was not unreasonable under the Fourth Amendment. Note carefully that the Court in Florida v. Wells, 495 U.S. 1 (1990), later this lesson, required that the officer have operated under a written policy, a requirement not at issue in Opperman.
2. Could an inventory search be used as a pretext to conduct a search for which probable cause did not exist? What if an officer possessed discretion concerning whether or not to tow a car and chose towing since such course of conduct would permit a search? Should such search be upheld?