I have long thought of the exigent circumstances doctrine as an exception to the warrant requirement – it allows a search to be conducted when probable cause is present but it is impractical for officers to take the time to obtain a search warrant. That understanding was shaken when I read Phil Dixon’s summary of United States v. Curry, 937 F.3d 363 (4th Cir. 2019). The majority in Curry ruled that exigent circumstances allowed officers to search several men without probable cause or even reasonable suspicion because they were walking away from an area where shots had just been fired. In other words, the court took the position that exigent circumstances excused not only the lack of a warrant, but also the lack of individualized suspicion. Have I been mistaken all these years?
exigent circumstances
North Carolina Court of Appeals Finds Exigent Circumstances to Enter Home Without a Warrant to Conduct Protective Sweep for Officer Safety and to Prevent Destruction of Evidence
The United States Supreme Court has stated that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” and that “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. United States, 445 U.S. 573, 585-86 (1980). So in an ordinary case officers will need an arrest warrant to enter a person’s house to make an arrest of the resident or a search warrant to search for and seize property there. There are a few exceptions to the warrant requirement: (1) obtaining consent to enter from an appropriate person, (2) probable cause and exigent circumstances, (3) making a protective sweep of a home for dangerous people when an officer is there to make an arrest, (4) entering a home to seize weapons for self-protection, and (5) entering a home to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. See generally Arrest, Search, and Investigation in North Carolina (4th ed. 2011) at pages 66-73 (entering premises to arrest), 217-18 (probable cause and exigent circumstances), 232-33 (entry or search of home to render emergency assistance or for self-protection). A new edition of this book will be available this coming winter, possibly as soon as December 2016.
Hospitalization of DWI Suspect Does Not Create Per Se Exigency Justifying Warrantless Blood Draw
The Chatham County sheriff’s deputy who arrested Ronald McCrary in Siler City for impaired driving at 7:34 p.m. on December 28, 2010 decided that if McCrary was taken to the hospital, he would obtain a sample of his blood without a warrant. McCrary was in fact taken to a nearby hospital—at his insistence—where he refused to cooperate with the medical staff and refused to consent to the withdrawal of his blood. Once the hospital discharged McCrary at 9:13 p.m., several officers restrained him while hospital staff withdrew his blood. Was the blood draw legal?
State v. Granger Adds to State’s Missouri v. McNeely Jurisprudence
State v. Granger, decided last week, is the latest case in which the North Carolina Court of Appeals has considered, in light of Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013), whether an exigency supported the warrantless withdrawal of an impaired driving suspect’s blood over the person’s objection. Readers may recall that the … Read more
Supreme Court Update
Today, I wanted to note two timely and interesting items concerning the United States Supreme Court. First, the Court just granted certiorari in Chaidez v. United States, a case that presents the issue of whether Padilla v. Kentucky applies retroactively. Padilla, of course, is the case that requires criminal defense attorneys, in some circumstances, to … Read more
Kentucky v. King and the Officer-Created Exigency Doctrine
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 … Read more
State v. Fletcher and Warrantless Blood Draws
I’ve blogged before about G.S. 20-139.1(d1). When a DWI arrestee refuses to submit to a test for alcohol, that section allows “any law enforcement officer with probable cause” to “compel the [arrestee, without a search warrant] to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain … Read more