The Exigent Circumstances Exception to the Warrant Requirement
| Publication year | 1991 |
| Pages | 1167 |
1991, June, Pg. 1167. The Exigent Circumstances Exception To the Warrant Requirement
The Fourth Amendment to the U.S. Constitution guarantees the right of the people to be free from unreasonable searches and seizures. Colorado Constitution Article II, º 7 makes the same guarantee in virtually identical language. Searches conducted without warrants are "per se unreasonable under the Fourth Amendment---subject only to few specifically established and well delineated exceptions.(fn1)"One of these exceptions is the exigent circumstances exception,(fn2) which this article discusses.
A defendant, as the moving party in a suppression hearing, has the burden of proof. However, because a warrantless search and seizure is presumptively illegal, the defendant can satisfy that burden merely by establishing that the police did not have a warrant.(fn3) The prosecution then has the burden of establishing an exception to the warrant requirement.(fn4) This general rule applies with full force at hearings in which it is argued that the exigent circumstances exception applies.(fn5)
Proof that an exigent circumstance exists requires, first and foremost, proof that probable cause exists. An exigent circumstance is not a substitute for probable cause. It is merely an exception to the warrant requirement in a situation where probable cause already exists. The prosecution bears the burden of establishing probable cause, just as it bears the burden of establishing the exigent circumstance itself.(fn6)
As with other exceptions to the warrant requirement, the exigent circumstances exception must be narrowly drawn. If doubt exists about whether the decision to search was reasonable, "such doubt must be resolved in favor of the defendant whose property was searched."(fn7)
The exigent circumstances exception is broken down into three main categories:
1) the bona fide pursuit of a fleeing suspect;
2) situations that create a risk of the immediate destruction of evidence; and
3) colorable claims of an emergency threatening the life of another.(fn8)
Proof that a particular set of facts falls into any of these categories suffices to meet the requirements of the exigent circumstances exception. However, it is not unusual for a particular set of facts to fall into more than one category. For example, a suspect who flees with a hostage may create a situation that falls into both the bona fide pursuit and the life-threatening emergency categories. The following sections discuss the three categories in detail.
The bona fide pursuit of a fleeing suspect is recognized by both the U.S. and Colorado Supreme Courts as an exigent circumstance that may justify a warrantless search.(fn9) In Warden v. Hayden,(fn10) witnesses followed a robbery suspect from the scene of the robbery to a home. The police arrived minutes later. The U.S. Supreme Court was satisfied that the exigencies of the situation justified an entry into and a thorough search of the home. The search included such actions as looking in the washing machine and the tank of a recently flushed toilet, which were approved "as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before."(fn11)
As suggested above, the facts of this case fit into more than one category of exigent circumstances. The Court was concerned with both officer safety and the possibility of further flight.
An issue that may arise in the context of a claim that the "hot pursuit" exception applies to a warrantless search is whether the pursuit was bona fide. In People v. Santisteven, the Colorado Court of Appeals rejected a claim of hot pursuit when
the police had information that the defendant was in his own home, approximately two hours after the stabbing.
They had no evidence that he was leaving and, indeed, the house was surrounded by six uniformed officers to prevent that eventuality.(fn12)
Conversely, in a similar situation, the Colorado Supreme Court found that the hot pursuit exception extended to a suspect who was surrounded hours after his offense. In People v. Drake,(fn13) the police had probable cause to believe the defendant was involved in a murder earlier in the day and that he was planning to leave town. They traced the defendant to a motel room and surrounded it. The court found that the police reasonably feared that the defendant might attempt to escape once it became dark. This danger, coupled with the seriousness of the offense and the danger that the defendant might destroy evidence in the motel room, satisfied the court that exigent circumstances existed to justify the warrantless arrest of the defendant.
It is important to note that, in Drake, more than one exigency existed. Both the risk of flight and the danger of destruction of evidence were present and were used to justify the warrantless arrest of the defendant and the search of his motel room.
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