A few weeks ago the United States Supreme Court decided Lange v. California, 594 U.S. ___, ___ S. Ct. ___ (June 23, 2021), holding that the flight of a person suspected of a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home. Today’s post reviews how Lange fits into the landscape of Fourth Amendment cases establishing when an officer may forcibly enter a suspect’s home without a warrant.
Tag Archives: exigency
In 2016, the North Carolina Court of Appeals held in State v. Adams, 250 N.C. App. 664 (2016), that law enforcement officers acted lawfully when, lacking a warrant, they chased a man suspected of driving while license revoked into his home where they arrested him. The court determined that because the officers were engaged in hot pursuit, they did not need to establish additional exigent circumstances such as immediate danger or destruction of evidence to justify forcibly entering the suspect’s home. This year, the United States Supreme Court is reviewing a California case raising the same issue: Does pursuit of a person who a police officer has probable cause to believe has committed a misdemeanor categorically qualify as an exigent circumstance sufficient to allow the officer to enter a home without a warrant? See Lange v. California, 141 S. Ct. 1617 (2020) (granting review of People v. Lange, No. A157169, 2019 WL 5654385 (Cal. Ct. App. Oct. 30, 2019) (unpublished)). Continue reading →
State Supreme Court Issues Significant Rulings on HGN Evidence and Blood Draws in DWI Cases
Two of last week’s opinions from the North Carolina Supreme Court address significant legal issues arising in impaired driving cases. In State v. Godwin, the supreme court reversed the court of appeals, holding that the trial court was not required to explicitly recognize a law enforcement officer as an expert witness before the officer could testify to the results of a Horizontal Gaze Nystagmus (HGN) test. In State v. Romano, the supreme court upheld the court of appeals’ determination that the withdrawal of blood from an unconscious impaired driving defendant violated the Fourth Amendment, notwithstanding a state statute authorizing this practice. Continue reading →
The DWI Year in Review, Part I
Don’t call the School of Government next week. We’ll all be out. Next week is conference-time for many of the court officials we serve, and we will be traversing the state (driving the speed limit at all times, of course) to speak at various legal conferences. Case updates are a perennial staple of these conference agendas, so I’ve been reviewing last year’s cases with a particular focus on impaired driving. A number of opinions address issues that are frequently litigated in DWI cases, so I thought I’d share the highlights with you in a two-part post. This post reviews the past year’s jurisprudence on implied consent testing and compelled blood draws. Tomorrow’s post will review the recent case law on reasonable suspicion and probable cause for DWI. Continue reading →
The court of appeals decided its first post-Missouri v. McNeely alcohol exigency case yesterday. The court in State v. Dahlquist determined that the four to five hours that the arresting officer estimated would have elapsed had he first traveled to the intake center at the jail to obtain a search warrant and then taken the defendant to the hospital for a blood draw constituted an exigency sufficient to excuse the Fourth Amendment’s warrant requirement. Thus, the Dahlquist court held that the trial court properly denied the defendant’s motion to suppress as the warrantless withdrawal of the defendant’s blood at a nearby hospital over his objection was lawful. What’s most interesting about the case is not its holding, presaged by State v. Fletcher, 202 N.C. App. 107 (2010), and McNeely itself, but instead its dicta. The court stated that while it found an exigency in this case, officers should consider amending their post-arrest procedures in future cases in two respects. First, where the technology is available, they should testify in support of search warrants by videoconference as authorized by G.S. 15A-245. Second, rather than estimating wait times based on past experience, officers should call magistrates’ offices and hospitals to obtain current information about wait times.
Facts. Dahlquist was a relatively routine impaired driving case. The defendant was stopped at a DWI checkpoint in the Charlotte area in the early morning hours. He smelled strongly of alcohol, admitted to drinking, and failed several field sobriety tests. He was arrested for DWI and taken to a Blood Alcohol Testing (“BAT”) mobile for purposes for a breath test. He refused to submit to the test. The officer then took the defendant to Mercy Hospital where his blood was drawn without his consent.
Procedural history. The defendant moved in superior court to suppress the evidence of his alcohol concentration obtained from the warrantless withdrawal of his blood. The superior court denied the motion, and the jury found him guilty of driving while impaired. The defendant appealed the denial of his motion to suppress.
Court of appeals opinion. The appellate court noted the Supreme Court’s holding in McNeely that the natural dissipation of alcohol, standing alone, does not create an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement. As a result, whether an exigency exists must be determined case by case based on a totality of the circumstances. Thus, the question before the Dahlquist court was whether the circumstances in that case gave rise to an exigency sufficient to justify a warrantless search.
As previously noted, the trial court concluded that they did, and the court of appeals agreed. The officer took the defendant directly to the hospital because “he knew that over time the amount of alcohol in blood dissipates.” Slip op. at 7. The officer also “knew from his years of experience” that the hospital was fifteen minutes away and that he could obtain a sample of the defendant’s blood from hospital staff within an hour after arriving. Id. The officer “surmised from his past experience that, on a weekend night, it would take between four and five hours to obtain a blood sample if he first had to travel to the [magistrate’s office] to obtain a search warrant.” Slip op. at 8.
Dicta. After concluding that the trial court properly denied the defendant’s motion to suppress, the court of appeals elected to “elaborate on one point” related to the procedure for obtaining a warrant, namely “advances in technology,” a topic also addressed in McNeely. The Supreme Court in McNeely noted that federal magistrate judges may issue warrants based on information communicated by telephone or other electronic means and that most states allow police or prosecutors to apply for search warrants remotely using the telephone, video-conferencing and electronic communication. The Dahlquist court noted that G.S. 15A-245(a) was amended in 2005 to allow a search warrant to be issued based on audiovisual transmission of oral testimony under oath or affirmation from a sworn law enforcement officer to the issuing official. (Before this procedure may be used, the senior resident superior court judge and chief district court judge must obtain the approval of the Administrative Office of the Courts.) Yet the officer in Dahlquist assumed he had only two options: (1) travel to the magistrate’s office and risk the loss of evidence; or (2) proceed to the hospital without a warrant. The court encouraged officers to consider the option of testifying in support of search warrants by videoconference.
As noted earlier, the court also said that the “better practice in such cases might be for an arresting officer, where practical, to call the hospital and the [magistrate’s office] to obtain information regarding the wait times on that specific night, rather than relying on previous experiences.”
Practical concerns. When G.S. 15A-245 was amended in 2005 to allow officers to testify in support of search warrants by videoconference, my colleague John Rubin pointed out that that the act amending the statute, S.L. 2005-334, did not “address various implementation issues—for example, how the testimony will be memorialized and served.” John Rubin, Criminal Law and Procedure, North Carolina Legislation 2005, at 85 (Martha Harris, ed. 2006) (noting that the federal rules require that testimony be recorded, transcribed and certified as accurate by the issuing official; in addition, the issuing official must prepare an original warrant and the applicant must prepare a duplicate warrant for service). Whether as a result of these issues or the lack of available technology, my sense is that few, if any jurisdictions, use this procedure.
Bottom line. Police departments, in consultation with the courts in their districts, would be wise to consider whether using video-conference testimony from officers would expedite the process of obtaining a search warrant in impaired driving cases. While the Dahlquist court determined that the time required for the arresting officer to apply for the warrant in person created an exigency in that case, its commentary indicates that the court may, in a future case, factor the availability of videoconferencing technology into its totality of the circumstances analysis.
Moreover, officers shouldn’t guess at wait times when there is a practical alternative such as calling ahead. Dahlquist strongly hints that such estimates, even when based on experience, may weigh less heavily in the State’s favor in subsequent cases.
Supreme Court Weighs in on Nonconsensual, Warrantless Blood Draws in DWI Cases
The United States Supreme Court decided Missouri v McNeely yesterday, holding that in impaired driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. The high court thus resolved the split among state courts regarding whether its 47-year-old decision in Schmerber v. California, 384 U.S. 757 (1966), required facts in addition to the natural dissipation of alcohol to establish an emergency sufficient to trigger the exigent circumstances exception to the warrant requirement – it does – and rejected the State’s call for a categorical rule authorizing warrantless blood draws whenever an officer has probable cause to believe a person has been driving while impaired based solely on the evanescent nature of alcohol.
Facts. The defendant in McNeely was stopped for speeding. The officer noticed signs that the defendant was impaired by alcohol, and the defendant admitted to having consumed a couple of beers at a bar. After the defendant performed poorly on field sobriety tests, he was arrested.
On the way to the police station, the defendant told the officer he would not provide a breath sample. The officer then drove to the hospital to obtain a sample of the defendant’s blood for analysis. Upon arriving at the hospital, the officer asked the defendant whether he would consent to a blood test, informing him, pursuant to Missouri’s implied consent law, that if he did not, his license would be revoked and the refusal could be used against him in a future prosecution.
The defendant refused. The officer then directed a hospital lab technician to draw the defendant’s blood. Subsequent laboratory testing measured the defendant’s blood alcohol concentration at 0.15.
The defendant was charged with DWI. He moved to suppress the breath results, arguing that taking his blood for chemical analysis without a search warrant violated the Fourth Amendment.
Lower court rulings. The trial court granted the defendant’s motion to suppress. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. The state supreme court affirmed, holding that the U.S. Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), “require[s] more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” Finding no special facts other than the dissipation of alcohol, the Missouri Supreme Court held that the nonconsensual warrantless blood draw violated the defendant’s Fourth Amendment rights.
Supreme court ruling. The Supreme Court granted certiorari to resolve a split of authority on the question of whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. The high court, in an opinion authored by Justice Sotomayor, affirmed the judgment of the Missouri Supreme Court that it does not. The court held that:
- Warrantless searches carried out pursuant to the exigency exception comport with the Fourth Amendment’s reasonableness requirement because there is a compelling need for official action and no time to secure a warrant. Because the police action in such circumstances lacks the traditional justification that a warrant provides, courts must look to the totality of the circumstances to determine whether an emergency existed. The exigency exception thus differs from the categorical exceptions that apply to searches of automobiles and searches of persons incident to arrest, which do not require the courts to assess whether the policy justifications underlying the exception are satisfied.
- While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
- In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
- Some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.
- Exigent circumstances may exist when there is no accident. The procedures for obtaining a warrant and the availability of a magistrate may affect whether there is time to obtain a warrant and thus may establish an exigency.
Concurrence and dissent.
- Justice Kennedy concurred in part and wrote separately to note that states may wish to adopt rules and guidelines giving practical instruction to officers. He further observed that the Court might find it appropriate to consider a case in which it could provide more practical guidance about when an exigency exists.
- Chief Justice Roberts, joined by Justices Bryer and Alito, concurred in part and dissented in part. The Chief Justice agreed with the majority that exigencies are to be determined based on a totality of the circumstances, but argued that because the circumstances in impaired driving cases are often typical, the court should offer more guidance for the police. The Chief Justice argued for the following rule: If an officer investigating an impaired driving case reasonably concludes that there is not sufficient time to seek and receive a warrant or the officer applies for a warrant but does not receive a response before blood can be drawn, a warrantless blood draw may ensue.
- Justice Thomas dissented, arguing that the dissipation of alcohol, without more, constitutes exigent circumstances as it destroys evidence of a crime.
Impact for NC. The North Carolina court of appeals in State v. Fletcher, 202 N.C. App. 107 (2010), employed the totality of the circumstances analysis approved in McNeely in considering whether exigent circumstances existed to support the nonconsensual, warrantless withdrawal of the defendant’s blood in an impaired driving case. Fletcher considered not only the dissipation of alcohol, but also the distance to the magistrate’s office and the time required to obtain a warrant on a Saturday night. Fletcher concluded that an exigency existed based on a potential delay of two to three hours. Because the Supreme Court in McNeely rejected only the per se rule advocated by the State and did not define what length of delay would constitute an exigency, McNeely sheds no light on whether a delay of the sort in Fletcher is a “significant” delay that “negatively affect[s] the probative value of the results.” (Slip op. at 9.)
Fletcher also upheld as constitutional G.S. 20-139.1(d1), which states: “If a person refuses to submit to any test or tests pursuant to this section, any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine.” The court held that the statute required “both probable cause and an officer’s reasonable belief that a delay in testing would result in dissipation of the person’s blood alcohol content,” noting that “[i]n effect, our legislature has codified what constitutes exigent circumstances with respect to DWI’s.” 202 N.C. App. at 98.
Given that Fletcher itself required more than dissipation to support an exigency, perhaps G.S. 20-139.1(d1), as interpreted in Fletcher, and because of its “under the circumstances” clause is constitutional. On the other hand, if the statute is read to authorize warrantless blood draws based on the dissipation of alcohol alone, it clearly violates the standard announced in McNeely.
Yesterday, the Supreme Court decided Kentucky v. King, a case that addresses — actually, eviscerates — the officer-created exigency doctrine. The facts are as follows: Officers investigating possible drug crimes smelled an odor of marijuana emanating from an apartment door. They banged loudly on the door and announced their presence. They heard people moving inside the apartment and suspected that drug evidence was being destroyed. They kicked in the door and saw drugs in plain view. The defendant was one of several people present. He was arrested and charged with drug crimes.
The defendant moved to suppress, arguing that the officers’ warrantless entry was unreasonable, but the trial court disagreed, ruling that exigent circumstances supported the entry. The defendant pled guilty, reserving his right to appeal. An intermediate appellate court affirmed, but the state supreme court reversed. It assumed arguendo that exigent circumstances existed but held that the exigent circumstances exception to the warrant requirement does not apply when it is “reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” In other words, when the police banged on the door, they prompted the occupants to begin destroying evidence, and thereby created the very exigency on which they based their warrantless entry. The Supreme Court granted certiorari to resolve a split of authority regarding the scope of the officer-created exigency doctrine.
The Court held that so long as “the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” Whether the police created the exigency intentionally, or foreseeably, or as a way to avoid seeking a search warrant is immaterial, according to the Court, and grafting any of those considerations onto the Fourth Amendment’s basic command that officers act reasonably would create practical problems. That holding appears to nullify the officer-created exigency doctrine, since the doctrine would apply only when officers are already violating the Fourth Amendment when they create an exigency, and so whatever evidence they find is already subject to suppression.
Applying its holding to the facts of the case, the Court concluded that the officers did not violate the Fourth Amendment or threaten to do so. It viewed the officers’ banging on the door and saying “this is the police” or “police, police, police” as similar to knocking on the door and unlike demanding entry or threatening to enter. Because their conduct amounted to nothing more than requesting consent to enter, it did not implicate the Fourth Amendment, and any response by the occupants could properly be considered in the exigent circumstances calculus.
What’s the effect here? For federal practitioners, it’s substantial, since the Court’s decision undermines the defendant-friendly officer-created exigency ruling in United States v. Mowatt, 513 F.3d 395 (4th Cir. 2008). At the state level, the officer-created exigency doctrine has never been considered by North Carolina’s appellate courts. So King heads off a possible development in the law more than it actually changes the law in North Carolina.
For those interested in further reading, the ABA Journal summary of the case is here, though it doesn’t add much to the above and probably isn’t as good as reading the Court’s syllabus. Professor Orin Kerr’s analysis of the case is here. And Crime and Consequences covers the case here, stating that “this very pro-law-enforcement decision is likely to raise eyebrows. After all, the idea that a police officer can detect the smell of marijuana, knock on a nearby door, and bust into the home after hearing people move about inside . . . might rub wrong even the most tough-on-crime believers. . . . [T]he real issue critics have with this scenario is not the propriety of the officer’s act of knocking on the door, but whether these borderline circumstances rise to the level of ‘exigent circumstances’ justifying a warrantless entry,” an issue on which the Supreme Court did not opine.
The Emergency Doctrine
A couple of recent cases got me thinking about the authority of the police to enter a home without a warrant when there is an emergency.
First, the legal background. Generally, a warrant is required to enter a home without the consent of the occupants. Yet “a warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting, or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal.” Wayne v. United States, 318 F.2d 205 (D.C. Cir. 1963). In the more clinical words of the Supreme Court, “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Brigham City v. Stuart, 547 U.S. 398 (2006). The subjective motivations and intentions of the officers – that is, whether they are actually motivated by a desire to protect an occupant of the home or by a desire to gather evidence – are irrelevant. Id. For a general discussion of the emergency doctrine, see Wayne R. LaFave, Search and Seizure §6.6(a)-(b) (4th ed. 2004). North Carolina has codified the doctrine by statute. G.S. 15A-285 (allowing an officer to enter a building when he or she “reasonably believes that doing so is urgently necessary to save life, prevent serious bodily harm, or avert or control public catastrophe.”).
An issue that frequently arises in cases involving the emergency doctrine is what counts as an “objectively reasonable basis for believing that an occupant is” injured or endangered? The recent cases that got me started thinking about this doctrine shed some light on this issue.
In State v. Cline, __ N.C. App. __ (2010), a toddler was found wandering near a highway. A motorist collected the child and called the police, who began looking for the child’s parents in a nearby neighborhood. A resident told them that the child was likely the defendant’s son. An officer knocked on the front door of the defendant’s residence several times and got no answer. The back door was ajar, and a diaper was lying nearby. The officer was concerned that the child’s parent could be dead or otherwise in need of assistance, so he entered the residence, finding marijuana growing in the bathtub in plain view. The defendant was charged with drug offenses and moved to suppress, but the trial court denied the motion and the court of appeals affirmed, finding that the officer’s entry was supported by his uncertainty about whether the defendant’s father was dead or injured.
In Johnson v. Memphis, __ F.3d __, 2010 WL 3305264 (6th Cir. Aug. 24, 2010), a 911 operator received a hang-up call. The operator called back and received no answer, and police were dispatched to the residence from which the call originated. They found the front door wide open, and received no response when they announced their presence. They entered “to make sure that no one was hurt or in need of assistance,” encountered an aggressive occupant, and shot him. The occupant’s widow sued, claiming, inter alia, that the officers’ entry violated the Fourth Amendment. Both the trial court and the reviewing court disagreed, with the latter holding that “the combination of the 911 hang[-up] call, an unanswered return call, and an open door with no response from within the residence is sufficient to satisfy . . . the emergency aid exception.” The unanswered return call, in particular, suggested that “after the initial call was placed the caller or the phone has somehow been incapacitated.”
I don’t know whether, in theory, an “objectively reasonable basis for believing” means probable cause, or reasonable suspicion, or something else. (Brigham City v. Stuart dodges this issue in a pretty conspicuous manner.) But I’m confident that, in practice, courts are likely to defer to officers’ decisions about when an emergency entry is justified. As the Wayne court explained, “the business of policemen . . . is to act, not to [engage in] . . . the calm deliberation associated with the judicial process.”