§ 11.01 EXIGENCY EXCEPTION: EXPLAINED

• Jurisdiction: United States

§ 11.01. Exigency Exception: Explained

Many exceptions to the "warrant requirement" of the Fourth Amendment are based on exigent circumstances, that is, on the ground that time constraints make it impracticable for the officer to seek a warrant. Because an exigency is a situation that requires immediate action, it is reasonable for an officer in emergent circumstances to search without a warrant.

Some exigent circumstances commonly recur. For example, an arrest triggers a threat to the police officer that the arrestee might use a concealed weapon or destroy evidence hidden on her person or in the area of her control before the officer can obtain a search warrant. Thus, there is a "search incident to lawful arrest" exception to the warrant requirement. Similarly, the mobility of an automobile makes it difficult to secure a warrant to search a car discovered on the highway. Therefore, there is an "automobile" warrant exception. These and other specific exceptions to the "warrant requirement" are considered in coming chapters of this Text.

Other exigencies occur less frequently, however, or arise in such disparate factual circumstances that courts have not generally classified them under a specific warrant exception. Therefore, these cases tend to be grouped together under the general umbrella of an "exigency" exception to the search warrant requirement, the subject of this chapter.

Certain generalizations regarding the "exigency" warrant exception are possible. First, cases that fall within this exception typically involve situations in which the police act without a warrant because they reasonably believe that criminal evidence will be destroyed or a suspect will avoid capture if they take the time to seek a warrant.

Second, the exigency that justifies the warrantless action should restrict the scope of the resulting search. For example, if the exigency is that a large box containing criminal evidence in a particular house may imminently be destroyed, the right to search for the box should extend only to those places in the residence that could reasonably conceal the box.

Third, the "exigent circumstances" exception lasts no longer than the exigency. That is, once the exigency ends, the police may no longer search without a warrant or they must justify their continued warrantless conduct on the basis of a different exception to the warrant requirement.

Fourth, although an exigency justifies the absence of a search warrant, it does not dispense with any...