Legal Cases/Articles - Warrantless Searches and Exigent Circumstances
Warrantless Searches and Exigent Circumstances
By Jaime E. Suarez
"A warrantless search of a home is per se unreasonable and thus unconstitutional under the Fourth Amendment."1 The Fourth Amendment to the United States Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”2
In fact, the United States Supreme Court has observed that warrantless searches are the chief evil against which the Fourth Amendment is aimed.3 "At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." 4
However, the Fourth Amendment's prohibition of warrantless searches is not absolute.5
The United States Supreme Court has crafted a few carefully drawn exceptions to the warrant requirement to cover situations where “the public interest require[s] some flexibility in the application of the general rule that a valid warrant is a prerequisite for a search.”6 One recognized exception to the warrant requirement exists where someone inside the home requires medical aid or assistance.7 Under this exception, the police may enter a home without first obtaining a warrant if they have an "objectively reasonable basis ... to believe that there is an immediate need for police assistance for the protection of life or substantial property interests."8
Another such exception is that the police may enter a private premises and conduct a search if “exigent circumstances” mandate immediate action.9 The exigent circumstances exception recognizes a “warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant.”10 The exigent circumstances exception encompasses several common situations where the time required to secure a search warrant is not feasible or advisable, including: danger of flight or escape, loss or destruction of evidence, risk of harm to the public or the police, mobility of a vehicle, and hot pursuit.11
Glover v. Eight Unknown D.E.A. Agents/Drug Task Force Agents
From Birmingham, Alabama Task Force - Background12
On January 16, 2002, law enforcement officials agents attempted to secure a search warrant for Jerry Wayne Glover's residence on the suspicion that he was operating a clandestine methamphetamine lab there. The magistrate judge determined that the agents lacked sufficient evidence to merit a warrant. So the agents arranged to have a confidential source enter Glover's house on the pretense of delivering a tank of anhydrous ammonia he had ordered. The ammonia is one of the chemicals used to manufacture methamphetamine.
The confidential source was wired and agents were monitoring the situation, ready to raid the alleged lab if necessary. In their affidavits, the agents stated that after entering Glover's residence, the confidential source started coughing and complaining of chemical fumes over the wire. Glover claims that he never heard any coughing but admits that the source went upstairs to use the bathroom.
Fearing the confidential source was being exposed to noxious chemicals, the agents entered Glover's house and arrested him. Glover claims that when the law enforcement officials entered he stood still, raised his hands and did not resist. Nonetheless, the law enforcement officials grabbed him and pulled him into the garage.
Glover was then questioned about the presence of guns and chemicals in the house. After about thirty minutes of searching, the agents found only denatured alcohol, a small amount of methamphetamine and an unopened container of anhydrous ammonia in the garage.
Glover eventually pleaded guilty to attempting to manufacture methamphetamine, in violation of 21 U.S.C. § 846, and the possession of pseudoephedrine, in violation of 21 U.S.C. § 841(c)(2).13 He was sentenced to 122-months imprisonment and three years of supervised release.
Glover’s Appeal
On appeal the United States Court of Appeals, Eleventh Circuit first addressed Glover's claim that the agents unlawfully entered his house without a warrant and wrongfully seized his property.14
In its analysis, the Eleventh Circuit stated that the agents knew that “(1) the confidential source was coughing and appeared unable to breathe; (2) they had received a tip that Glover was manufacturing methamphetamine and ordering dangerous chemicals, and (3) as stated in the agents' affidavits, the area around the house smelled of chemicals.”15 According to the Court, the above evidence was sufficient to justify entry.16
In support of this assertion, the Court cited to other cases including one stating that an exigency may exist in cases involving methamphetamine labs where other people are in the vicinity because of the dangers associated with cooking and storing the chemicals used;17 one case stating that warrantless entry of a residence was justified where agents knew the defendant was purchasing materials used to make methamphetamine, smelled the odor of cooking methamphetamine, and were aware of the dangers of an active methamphetamine lab;18 and one case ruling that the exigent circumstances test was met because of the flammable and explosive nature of the chemicals used to make methamphetamine.19
The Eleventh Circuit of the United States Court of Appeals states "when exigent circumstances demand an immediate response, particularly where there is danger to human life, protection of the public becomes paramount and can justify a limited, warrantless intrusion into the home."20 Thus, a warrantless search and seizure, even of a home, is justified where both probable cause and exigent circumstances exist.21
Although the Court noted that Glover argued that the agents had fabricated evidence and created exigent circumstances so that they could enter his home without a warrant, the Court stated that this “assertion [wa]s based solely on Glover's conclusory allegations without the support of any admissible evidence.”22
The Court also stated that “the agents' seizure of some chemicals and a small quantity of methamphetamine from Glover's home did not violate the Fourth Amendment, because the agents attest[ed] that everything seized was in plain view.”23 If entry into a residence is justified by exigent circumstances, then an officer is permitted to seize any evidence in plain view.24 Therefore the Court found that there was no constitutional violation in either the entry or the seizure.
The Court concluded that considering the facts in the light most favorable to Glover, the agents did not violate his constitutional rights when they entered his house without a warrant, because there is no need for a warrant when exigent circumstances demand immediate entry; moreover there was no unlawful seizure because all evidence taken was in plain view.
1 See Wheeler v. State, --- So.2d ----, 2007 WL 1296024 (Fla. 2d DCA), 32 Fla. L. Weekly D1193 (Fla. 2d DCA 2007) (quoting Seibert v. State, 923 So.2d 460, 468 (Fla.), cert. denied, 127 S.Ct. 198 (2006)).
2 See United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir.2002) (quoting U.S. Const. amend. IV).
3 See Wheeler v. State, --- So.2d ----, 2007 WL 1296024 (Fla. 2d DCA), 32 Fla. L. Weekly D1193 (Fla. 2d DCA 2007) Payton v. New York, 445 U.S. 573, 585 (1980).
4 See Wheeler v. State, --- So.2d ----, 2007 WL 1296024 (Fla. 2d DCA), 32 Fla. L. Weekly D1193 (Fla. 2d DCA 2007) (quoting Kyllo v. United States, 533 U.S. 27, 31 (2001) (citation and internal quotation marks omitted)).
5 Id.
6 See Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979).
7 See Wheeler v. State, --- So.2d ----, 2007 WL 1296024 (Fla. 2d DCA), 32 Fla. L. Weekly D1193 (Fla. 2d DCA 2007) (citing Seibert, 923 So.2d at 468 ("One exception is the presence of an emergency situation which requires the police to assist or render aid.")).
8 Id.(citing Seibert, 923 So.2d at 468)
9 See United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir.2002) (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949-50, 56 L.Ed.2d 486 (1978)).
10 See United States v. Holloway, supra (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978)).
11 See United States v. Holloway, 290 F.3d at 1334-1335(citing Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) (listing situations falling within exigent circumstances exception); see also United States v. Reid, 69 F.3d 1109, 1113-14 (11th Cir.1995) (upholding warrantless search of residence based on exigent circumstances arising from risk of losing evidence, risk of flight, and danger of harm to public or officers); United States v. Forker, 928 F.2d 365, 368-69 (11th Cir.1991) (upholding warrantless search of vehicle based on mobility); United States v. Tobin, 923 F.2d 1506, 1510-11 (11th Cir.1991) (en banc) (upholding warrantless search of residence based on danger narcotics would be destroyed or removed); United States v. Burgos, 720 F.2d 1520, 1525-26 (11th Cir.1983) (upholding warrantless search of residence based on threat of injury to neighborhood arising from defendant's stash of weapons); United States v. Blasco, 702 F.2d 1315, 1326 (11th Cir.1983) (upholding warrantless search based on imminent danger of flight or escape); United States v. Kreimes, 649 F.2d 1185, 1192 (5th Cir. Unit B 1981) (upholding warrantless search based on hot pursuit and danger posited by possibility of armed fugitive remaining at large)).
12 The facts are as outlined in the unpublished opinion, Glover v Eight Unknown D.E.A. Agents / Drug Task Force Agents From Birmingham Alabama Task Force, 2007 WL 559805, *1 (11th Cir. 2007).
13 See Glover v Eight Unknown D.E.A. Agents / Drug Task Force Agents From Birmingham Alabama Task Force, supra 2007 WL 559805, at *2.
14 See Glover v Eight Unknown D.E.A. Agents / Drug Task Force Agents From Birmingham Alabama Task Force, supra 2007 WL 559805, at *3.
15 Id.
16 Id.
17 Id. (citing United States v. Atchley, No. 04-6521, 2007 WL 148761, at *7 (6th Cir. Jan. 23, 2007)).
18 Id. (citing United States v. Rhiger, 315 F.3d 1283, 1290 (10th Cir.2003)).
19 Id. (citing United States v. Spinelli, 848 F.2d 26, 30 (2d Cir.1988)).
20 Id. (quoting United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir.2002)).
21 Id. (citing United States v. Davis, 313 F.3d 1300, 1302 (11th Cir.2002)).
22 Id.
23 See Glover v Eight Unknown D.E.A. Agents / Drug Task Force Agents From Birmingham Alabama Task Force, supra 2007 WL 559805, at *4.
24 Id. (citing United States v. McGough, 412 F.3d 1232, 1238 (11th Cir.2005)).
Jaime E. Suarez © 2007. All rights reserved. |
