The police don’t need a warrant to conduct a search that’s in response to an emergency (“exigent circumstances”). Sometimes they don’t even need probable cause, as when they’re simply looking out for public safety. The theory is that public safety and the preservation of evidence are priorities in certain situations.
LAWS MAY DIFFER
Though many critical rights come from the U.S. Constitution, states have their own constitutions and statutes. State law often provides protections that are similar, if not identical, to the those the federal Constitution gives. But occasionally state law offers expanded rights. Keep this potential expansion in mind when reading about general criminal law principles. It could be, for example, that evidence that would be admissible under the federal Constitution is inadmissible under state law.
For more on fundamental rights as they relate to the federal Constitution and state law, see What does the Bill of Rights do?
Here are some scenarios in which judges are likely to uphold warrantless searches of a person or entry into a residence. In these situations, an officer’s duty to protect people and preserve evidence ostensibly outweighs the privacy interest protected by the Fourth Amendment.
A defendant subjected to a purported exigent-circumstances search doesn’t have to simply accept the officer’s justification. Rather, he or she can file a motion to suppress the evidence, at which point a judge will determine whether the officer conducted the search or seizure pursuant to a viable emergency and didn’t have time to get a warrant. Consider the following examples.
Reason to Break in? Responding to a call from a neighbor, Officer Jules finds a three-year-old wandering round an apartment building without adult supervision. The neighbor, Jim Roman, tells the officer that the child lives alone with her mother, that the mother left about two hours earlier, and that the child has been outside alone ever since. Officer Jules knocks on the mother’s door a number of times. Getting no response, he breaks in and looks through the apartment. There he finds stolen food stamps in the bedroom. The food stamps are probably not admissible in evidence against the mother in a subsequent prosecution for stealing them. Officer Jules wasn’t faced with an emergency at the time of the search. The child was safely in custody and Jules had no reason to suspect that the mother or anyone else was inside the apartment.
No Poking Around. Officer McNab has a warrant for Ruby’s arrest (for stealing jewelry). He knocks at her door, and when she answers, he arrests her. He immediately searches her apartment for evidence (rather than quickly glancing around for anyone else in the house) and finds a number of pieces of stolen jewelry in a shoebox in a corner of the basement. A judge shouldn’t admit the jewelry into evidence. No exigent circumstance justified the warrantless search. Officer McNab had time to try to obtain a search warrant. Also, the search wasn’t valid as “incident to arrest” because it exceeded Ruby’s immediate surroundings.