Chapter 5 - §3. Exceptions to warrant requirement

• Jurisdiction: United States

§3. Exceptions to warrant requirement

There are a number of exceptions to the general warrant requirement under which a warrantless search or seizure may be considered reasonable despite the lack of a warrant. These exceptions can require (1) probable cause, (2) reasonable suspicion, or (3) no suspicion. In creating the exceptions, the U.S. Supreme Court has consistently determined their reasonableness by balancing the need for the search or seizure against the level of intrusion. See Maryland v. King (2013) 569 U.S. 435, 448; Illinois v. McArthur (2001) 531 U.S. 326, 331; Terry v. Ohio (1968) 392 U.S. 1, 20-21. The weight given to those competing interests generally dictates whether the warrantless search or seizure must be conducted with probable cause, reasonable suspicion, or no suspicion.

Note

Under California's Electronic Communications Privacy Act (Pen. C. §§1546 to 1546.4), the California Legislature provided specific circumstances when electronic information can be obtained without a warrant. For a discussion of those circumstances, see "Pen. C. §1546 et seq.," ch. 1, §3.2.2(2)(g).

§3.1. Exceptions requiring probable cause. While most of the exceptions to the warrant requirement require something less than probable cause, a few require that heightened level of proof.

1. Probable cause defined. The probable-cause standard for a warrantless search or seizure is the same standard that applies to securing a warrant. Whiteley v. Warden (1971) 401 U.S. 560, 566, overruled on other grounds, Arizona v. Evans (1971) 514 U.S. 1. See "Probable cause," ch. 5-A, §2.2.1(1)(b).

2. Exceptions. There are three exceptions to the warrant requirement that require probable cause: (1) the exigent-circumstances exception, (2) the automobile-search exception, and (3) the plain-view exception.

(1) Exigent-circumstances exception. The exigent-circumstances exception allows an officer to enter premises (and, in some circumstances, a suspect's body) and conduct a warrantless search or seizure. See, e.g., Steagald v. U.S. (1981) 451 U.S. 204, 221 (entry into third party's home); Payton v. New York (1980) 445 U.S. 573, 590 (entry into suspect's home); People v. Ramey (1976) 16 Cal.3d 263, 275 (same); People v. Toure (4th Dist.2015) 232 Cal.App.4th 1096, 1104 (entry into body); see also Missouri v. McNeely (2013) 569 U.S. 141, 156 (entry into person's body for warrantless blood draw may be allowed under certain circumstances). This exception applies when exigent circumstances "make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." McNeely, 569 U.S. at 148-49; Kentucky v. King (2011) 563 U.S. 452, 460; see Lange v. California (2021) ___ U.S. ___, 141 S.Ct. 2011, 2017 (identifying several scenarios justifying application of exigent-circumstances exception); People v. Smith (4th Dist.2020) 46 Cal.App.5th 375, 384 (exigent-circumstances exception applies to situations requiring prompt police action and may arise when officers are responding to or investigating criminal activity). Courts have defined exigent circumstances as those that would cause a reasonable person to believe that swift entry was "necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." Fisher v. City of San Jose (9th Cir.2009) 558 F.3d 1069, 1075; see Mitchell v. Wisconsin (2019) ___ U.S. ___, 139 S.Ct. 2525, 2533 (plurality op.); McNeely, 569 U.S. at 149; Minnesota v. Olson (1990) 495 U.S. 91, 100; People v. Panah (2005) 35 Cal.4th 395, 465; see, e.g., People v. Suarez (2020) 10 Cal.5th 116, 151 (exigent circumstances justified officer's warrantless entry; D had recently attacked woman in his trailer, D was still at large, and woman's family members—including young children—were missing); People v. Nunes (6th Dist.2021) 64 Cal.App.5th 1, 6 (fire captain's search of metal cabinet in shed not an exigency that required swift action to prevent imminent danger; cabinet was not source of unspecified smell, house was not on fire, and no active fire or visible smoke appeared anywhere on premises). It is not enough that officers seek to eliminate the possibility that someone might require aid; instead, it must appear reasonably necessary to render emergency aid, regardless of whether a crime might be involved. People v. Ovieda (2019) 7 Cal.5th 1034, 1041-42; Smith, 46 Cal.App.5th at 386. The reasonableness of an officer's conduct depends on whether facts available at the moment of the search support a reasonable belief that the action taken was appropriate. Ovieda 7 Cal.5th at 1043; Nunes, 64 Cal.App.5th at 6; People v. Bowen (1st Dist.2020) 52 Cal.App.5th 130, 138-39. Thus, in evaluating the issue, the court must examine the "totality of circumstances" confronting an officer as he decides to make a warrantless entry. Lange, ___ U.S. at ___, 141 S.Ct. at 2018. While courts initially applied the exigent-circumstances exception to entries into the home, the exception has expanded to include other premises where a suspect has a reasonable expectation of privacy and, in some circumstances, within a suspect's body. See, e.g., U.S. v. Murphy (9th Cir.2008) 516 F.3d 1117, 1121 (search of storage unit), overruled on other grounds, Fernandez v. California (2014) 571 U.S. 292; Toure, 232 Cal.App.4th at 1104 (search of body; blood draw); People v. Lee (4th Dist.1986) 186 Cal.App.3d 743, 746 (search of office not open to general public). See "Arrest made inside home," ch. 5-A, §2.2.3(1)(b)[1]. Although an officer will arguably be justified in entering premises when both probable cause and any exigent circumstances exist, the two most common exigent circumstances are (1) hot pursuit and (2) imminent destruction of evidence. See McNeely, 569 U.S. at 149. A third exception arising from exigent circumstances, the emergency-aid exception, allows for entry without probable cause and is discussed separately. See "Emergency-aid exception," ch. 5-A, §3.3.5.

Note

Although the U.S. Supreme Court in Olson recognized the need to prevent a suspect's escape as a potential exigent circumstance, California courts have applied this exception in the past but not in recent years. See People v. Trudell (1st Dist.1985) 173 Cal.App.3d 1221, 1231; In re Jessie L. (2d Dist.1982) 131 Cal.App.3d 202, 213-14; People v. Kilpatrick (3d Dist.1980) 105 Cal.App.3d 401, 410-11, disapproved on other grounds, People v. Bustamonte (1981) 30 Cal.3d 88. For an entry to be reasonable under this exigency, an officer must reasonably believe that an immediate arrest is necessary to ensure public safety and prevent flight. See Trudell, 173 Cal.App.3d at 1231. When determining whether flight is a reasonable possibility, an officer may infer the possibility from a variety of circumstances. See, e.g., id. (flight was reasonable possibility based on seriousness of crime and fact that D knew police were looking for him); In re Jessie L., 131 Cal.App.3d at 213-14 (immediate flight was reasonable possibility based on seriousness of crime); Kilpatrick, 105 Cal.App.3d at 410-11 (flight was reasonable possibility because escape of kidnapping victim would likely alert D of need to flee).

(a) Hot pursuit. Under the exigent-circumstances exception, an officer can enter premises without a warrant when the officer is in hot pursuit of a fleeing suspect. King, 563 U.S. at 460; U.S. v. Santana (1976) 427 U.S. 38, 42-43. The hot-pursuit exception was traditionally applied in situations where an officer pursued a fleeing felon into a residence, either as a result of an attempted arrest in a public place or through an immediate or continuous chase from the crime scene. See Welsh v. Wisconsin (1984) 466 U.S. 740, 753; Santana, 427 U.S. at 42-43. While the exception still covers those situations, California courts have expanded the scope. See People v. White (2d Dist.1986) 183 Cal. App.3d 1199, 1203-04. Although California courts have not identified a formal set of circumstances that must be met, an officer must generally (1) have probable cause to arrest the suspect for a serious offense, (2) have reason to believe that the suspect is inside the place to be entered, (3) be in pursuit of the suspect, and (4) not have time to secure a warrant. If an officer enters premises under the hot-pursuit exception, the search should only be "as broad as may reasonably be necessary" to prevent the suspect from resisting or escaping, which can include searching the premises for the suspect or any weapons. See Warden v. Hayden (1967) 387 U.S. 294, 299-300 (upholding search for weapons but declining to determine whether search must be limited to weapons). During the search, the officer can only seize objects that he would be entitled to seize without a warrant, like objects in plain view. See Coolidge v. New Hampshire (1971) 403 U.S. 443, 465-66 (plurality op.). See "Plain-view exception," ch. 5-A, §3.1.2(3).

[1] Serious offense. For the hot-pursuit exception to apply, an officer must have probable cause to arrest the suspect for a serious or grave offense. See Welsh, 466 U.S. at 752; People v. Williams (1989) 48 Cal.3d 1112, 1138. See "Probable cause defined," ch. 5-A, §3.1.1. Courts may weigh the gravity of the crime against other factors, including the risk of danger and whether the suspect is armed. See Olson, 495 U.S. at 100-01. The more minor the offense at issue, however, the greater likelihood that the search or arrest will be considered unreasonable. See Welsh, 466 U.S. at 750. Courts are divided on whether hot pursuit requires a felony offense. California state courts have generally permitted hot-pursuit entries for jailable misdemeanors; the U.S. Supreme Court has suggested that warrantless entry for misdemeanors should rarely be sanctioned when there is probable cause to believe that only a "minor offense" is...