Emergency circumstances, police responses, and Fourth Amendment restrictions.

• Author: Decker, John F.

1. INTRODUCTION

   1. BACKGROUND

      In a large police department, such as one in a large municipality or a state police agency, law enforcement officials must simultaneously respond to a myriad of "crisis" situations. Some of the situations police encounter will involve serious criminality, while others will involve only civil concerns. One officer may be responding to a report of a possible burglary in progress in a residence, while another responds with firefighters to the scene of a fire in a commercial structure, and a third to a street location where an unattended child wanders aimlessly. The first officer may enter the residence to find no burglar or any other person, but rather a faulty alarm system and, more interestingly, numerous marijuana plants belonging to the absent homeowner. The second officer may be examining a fire of suspicious origin and finding evidence of arson, which will eventually lead to uncovering an elaborate scheme involving arson for insurance fraud committed by the building's owner. The third officer may identify the unattended child and, in an effort to return the child to his or her home, discover that the child has been abandoned days earlier, with nothing to eat, by irresponsible parents. The first officer has discovered evidence of the illicit production of cannabis, the second evidence of arson for fraud, and the third evidence of criminal child neglect. The defendants charged with these respective crimes may eventually challenge the presence of the police in their private premises and the police discovery of evidence of their criminality. Each defendant may claim the evidence of their criminality was seized in violation of their constitutional rights and may challenge the admissibility of such evidence in their respective prosecutions. Police may counter that they were properly responding to an emergency when they inadvertently discovered evidence of a crime. This Article will examine this type of police activity, evidence of criminality seized as a result, and defense challenges of the evidence based on Fourth Amendment grounds.(1)

   2. IMPORTANCE OF PROBABLE CAUSE AND THE WARRANT REQUIREMENT

      The United States Supreme Court has held that normally, a police seizure of either evidence of a crime in a constitutionally protected area or a possible criminal defendant must be based on probable cause.(2) Furthermore, the Court has repeatedly stated that a government search or seizure on private premises without a warrant is presumptively unreasonable(3) under the Fourth Amendment(4) unless it falls within one of the "carefully delineated"(5) exceptions to the Fourth Amendment warrant clause.(6) Strong policy interests in preventing possible abuse by government agents support the Court's insistence that government searches and seizures be preceded by the judicial scrutiny needed to procure a warrant. As the Supreme Court has stated,

      The purpose of a warrant is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search. As we have often explained, the placement of this checkpoint between the Government and the citizen implicitly acknowledges that an "`officer engaged in the often competitive enterprise of ferreting out crime' ... may lack sufficient objectivity to weigh correctly the strength of the evidence supporting the contemplated action against the individual's interests in protecting his own liberty and the privacy of his home."(7) The United States Supreme Court has expressed a "preference" that searches and seizures be supported by a judicial warrant based on probable cause(8) and have held unconstitutional a variety of searches that were not supported by a warrant.(9) On the other hand, the Court has approved a substantial number of searches on less than probable cause; namely, some on the basis of a reasonable suspicion(10) and others on no individualized suspicion whatsoever.(11) In addition, the Court has recognized a number of exceptions to the warrant requirement,(12) namely, exigent circumstances,(13) hot pursuit,(14) searches incident to an arrest,(15) seizures of items in plain view,(16) searches of vehicles,(17) inventory searches,(18) consent searches,(19) border searches,(20) searches on the high seas,(21) and searches of heavily regulated businesses to assure compliance with government regulations that are designed to protect the public's health and safety.(22) Finally, the Court has ruled that when police are engaged in "community caretaking functions, totally divorced from the detection, investigation or acquisition of evidence relating to the violation of a criminal statute,"(23) the normal probable cause standard and. warrant requirement need not be satisfied before their caretaking functions commence.(24) Examples of community caretaking functions include examining an automobile that was disabled, or in an accident,(25) and inventorying an impounded cat' for safekeeping purposes.(26) This article will explore the community caretaking doctrine and propose that the doctrine provides the analytical framework for evaluating searches and seizures incident to an emergency. This article proposes that when police officers act in response to an emergency, or in their community caretaking capacity, probable cause is not relevant and a judicial warrant is not needed. In other words, government actions carried out in response to an emergency should be viewed as an exception to normal Fourth Amendment standards because these actions are not considered a search or seizure as contemplated by the Fourth Amendment.

      The United States Supreme Court has alluded to another possible doctrine or exception to the general rule that law enforcement authority's actions must be predicated on probable cause and a warrant, namely, an "emergency,"(27) without necessarily describing it as such.(28) However, the Court and the legal literature(29) have paid scant attention to the growing willingness of the nation's lower courts to recognize this doctrine or exception. The purpose of this article is two-fold. First, it explores a substantial body of caselaw that has addressed governmental claims that law enforcement actions were justified by what could simply be described as an emergency. This review will reveal, not only differences between jurisdictions as to what type of circumstances are properly classified as emergencies permitting, for instance, a warrantless entry into a residence, but will also reveal rather dramatic differences in the method of analysis which the judiciary utilized in assessing the constitutionality of these types of governmental actions in the face of a Fourth Amendment challenge. As to the former, the case law reveals surprisingly little insight into such basic questions as whether an emergency requires a threat to life or limb or whether a mere threat to property interests is sufficient. As to the latter point, some courts rely on a simple, if not simplistic, "reasonableness" analysis which only inquires as to whether the governmental action was appropriate given the surrounding circumstances,(30) while others employ a more sophisticated multi-factor test for determining the validity of an emergency claim.(31)

      The second, and more important, goal of this article is to offer a doctrinal model that will assist courts in determining whether an emergency existed sufficient to validate a law enforcement agent's actions that now are being questioned. Initially, it will note the United States Supreme Court's recognition of the "community caretaking" role of the police that is, on the one hand, an essential characteristic of police work and, on the other hand, the type of activity that should not be saddled with the criminal procedure requirements that police must satisfy when they are investigating a crime and gathering evidence. Further, it will argue this "community caretaking" concern of police provides a principled framework for validating police action carried out in the name of an emergency. Next, a three-prong test will be used to guide courts through the thorny questions of when certain questionable police actions qualify as justifiable emergency actions.. Specifically, the first prong of this three-part test requires that there must be an objectively reasonable basis for a belief in the immediate need for police assistance for the protection of human life or substantial property interests. The second prong of this test insists that the officer's actions must be motivated by an intent to aid or protect, rather than to solve a crime. The third prong demands that the police action in question fall within the scope of the emergency.

      The review of existing caselaw and the three-prong test, which this article argues should be uniformly employed in evaluating government actions claimed to be justified because of emergency considerations, will be presented simultaneously throughout the article. This approach is better suited to identifying the contrasts between some courts' resolution of emergency claims and the three-part test supported by this author than would a mere descriptive survey of the various opinions thereafter followed by this author's set of recommendations. It is the hope of the author that, in the end, this article will clarify one aspect of the very complicated puzzle referred to as Fourth Amendment jurisprudence.

   3. "EMERGENCY" VERSUS "EXIGENT CIRCUMSTANCES": A QUESTION OF NOMENCLATURE

      It is important to note that various courts have characterized as an "exigency" or the "exigent circumstances" concept what this article will, for the sake of clarity, refer to as an "emergency," the "emergency doctrine," or the "emergency exception" to the warrant requirement.(32) Some decisions refer to the so-called "exigent circumstances" exception to the warrant clause as a general exception, which encompasses a variety of other warrant exceptions, such as the automobile exception.(33) This...