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? Continue reading
Tag Archives: exigent circumstances
Is the Exigent Circumstances Doctrine an Exception to the Warrant Requirement, or Something More?
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. Continue reading →
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? Continue reading →
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 United States Supreme Court held 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. The Granger court held that exigent circumstances justified the warrantless withdrawal of the defendant’s blood about an hour and a half after he drove when it would have taken an additional 40 minutes to obtain a warrant and it was impractical for the lone investigating officer to leave the defendant unattended in the hospital.
Facts. The defendant in Granger was driving in Wilmington around 2:19 a.m. when he rear-ended another vehicle. Officer Eric Lippert of the Wilmington Police Department responded to the report of an accident. When he approached the defendant’s car, he noticed that the defendant was in pain and that he smelled of alcohol. The defendant was taken to the hospital by ambulance.
Officer Lippert spoke with the defendant at the hospital. He noticed during their exchange that the defendant’s eyes were bloodshot and glassy. The defendant told the officer that he had been drinking. He said he had taken “‘three shots’” between 10 p.m. and 11 p.m. and that he had taken his last shot twenty minutes before the accident, around 2 a.m. The officer administered two portable breath tests to the defendant. Both were positive for alcohol. He also administered the horizontal gaze nystagmus test, which the defendant “did not pass.”
The officer determined that he has probable cause to obtain a blood sample from the defendant. (It is not clear from the court of appeals’ opinion or the record whether the officer then charged the defendant with impaired driving. Being charged with an implied consent offense is a prerequisite to obtaining a chemical analysis of a person pursuant to the state’s implied-consent laws. ) The officer then (at 3:10 a.m.) read the defendant his implied consent rights, and waited for a nurse to draw defendant’s blood for analysis. A nurse became available 40 minutes later, at 3:50 a.m., and the officer asked the defendant to submit to the blood draw. The defendant refused.
The officer instructed the nurse to draw the defendant’s blood over the defendant’s objection. A test of the blood sample revealed an alcohol concentration of 0.15.
Procedural History. The defendant was convicted of DWI in district court, and appealed for trial de novo in superior court. He moved in superior court to suppress the blood test results on the basis that his Sixth Amendment right to confront witnesses had been violated by the State’s failure to prove the chain of custody of his blood sample. He also filed a motion to dismiss, arguing that his Fourth Amendment rights were violated because his blood was withdrawn at the behest of the police officer without a warrant.
The superior court determined that there were sufficient exigent circumstances to justify the warrantless withdrawal of the defendant’s blood and therefore denied the defendant’s latter motion, which it characterized as a “motion to suppress.” The superior court did not rule on the defendant’s Sixth Amendment argument. The defendant pled guilty, preserving his right to appeal the superior court’s denial of his motion to suppress.
The defendant argued on appeal that the trial court erred in denying his motion to suppress the results of the blood test as there was no exigency sufficient to excuse the Fourth Amendment’s warrant requirement.
Court of Appeals Opinion. The court of appeals held that the following factors supported the trial court’s conclusion that exigent circumstances existed:
- The officer was concerned about the dissipation of alcohol from the defendant’s blood since the officer developed probable cause for DWI more than an hour after the accident.
- The officer was concerned about dissipation “‘due to delays from the warrant application process[.]’“ (Slip op. at 15.) The officer estimated that it would take at least 40 minutes to travel to the magistrate’s office, obtain a warrant, and return to the hospital.
- The officer was investigating the matter alone “and would have had to call and wait for another officer to arrive before he could travel to the magistrate to obtain a search warrant.” (Slip op. at 16.)
- The officer was concerned that if he left the defendant unattended or waited any longer for a blood draw, the hospital might administer pain medication that would “contaminat[e]” the defendant’s blood sample.
Predictable Outcome . . . But Curious Considerations. While some of the specific facts relied upon by the appellate court are curious, the holding in Granger isn’t particularly surprising. After all, the circumstances closely resemble those held to constitute an exigency in Schmerber v. California, 384 U.S. 757 (1966). In both circumstances, the defendant was taken to a hospital for medical treatment following a vehicular accident, and time was required to investigate the accident. While the “40 plus minute delay” that would have resulted in Granger had the officer sought a warrant is not particularly lengthy (Slip op. at 11), it arguably could have, under McNeely, ”significantly undermin[ed] the efficacy of the search,” and thus amounted to the sort of circumstance in which obtaining a warrant is “impractical.” McNeely, 133 S.Ct at 1561.
As for the curious facts, I’m not sure why the officer could not have left the defendant alone in the hospital while he applied for a warrant. [Update: Though not articulated in the trial court evidence or findings, an informed reader advised that departmental procedures typically require that a law enforcement officer who has probable cause to arrest a suspect for DWI have an officer watch the suspect patient at all times so the patient cannot leave the hospital voluntarily.] And given that the officer testified that he would not stop or interfere with a person’s medical treatment, it is not clear how his remaining in the hospital would have prevented pain medication from being administered if deemed necessary. Moreover, the State has had previous success in establishing the reliability of blood tests performed on samples obtained after pain medication had been administered. See State v. Armstrong, 203 N.C. App. 399, 418-19 (2010) (noting that State presented three witnesses who testified that the drug administered to the defendant did not increase his blood-alcohol level; cf. BJ’s Wholesale Club v. W.C.A.B. (Pearson), 43 A.3d 559, 564 (Pa. Commw. Ct. 2012) (noting the lack of competent evidence that the prescription pain medication and narcotic taken by the claimant “in any way caused or contributed to her high blood alcohol level”).
The court’s reliance on these factors leaves me wondering whether it would have found an exigency if two officers had been present—even factoring in the same delay. Future jurisprudence will no doubt continue to clarify the parameters of exigency for warrantless blood draws.
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 counsel their clients about the immigration consequences of criminal convictions. SCTOUSblog covers the basics of Chaidez here. Remember that the North Carolina Court of Appeals has ruled that Padilla is not retroactive, as discussed here, and that the issue is the subject of a split of authority nationally, as discussed here.
Second, remember Kentucky v. King, the case that essentially demolished the so-called officer-created exigency doctrine? (If you don’t, check out this prior post.) As I noted at the time, the Court did not determine whether the facts of King actually amounted to exigent circumstances — it merely held that the officers did not improperly create any exigency. The case was remanded to the Supreme Court of Kentucky, which reached the more fundamental question and ruled that the circumstances weren’t exigent. More details here at the Volokh Conspiracy.
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.
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 a court order . . . would result in the dissipation” of alcohol in the arrestee’s system.”
I argued in my prior post that in a routine refusal case, an officer should get a search warrant rather than rely on G.S. 20-139.1(d1), which should be used only when circumstances suggest that obtaining a warrant would be unusually time-consuming. Yesterday, the court of appeals decided State v. Fletcher, which confirms my basic point, but also suggests that the courts are willing to allow warrantless blood draws under circumstances that really aren’t that unusual.
The defendant in Fletcher stopped at a checkpoint and exhibited several signs of impairment. He was arrested and taken to an Intoximeter. Compressing the facts a bit, he refused to provide a sample, and the arresting officer took him to the emergency room for a warrantless blood draw, the results of which confirmed his impairment. He moved to suppress the results, arguing that there was nothing unusual about the case that justified a warrantless blood draw, but the trial court denied his motion and the court of appeals affirmed.
The appellate court noted that G.S. 20-139.1(b1) is essentially a statutory codification of the exigent circumstances exception to the search warrant requirement, as applied in the context of blood draws. And it found sufficient exigency in the following facts: (1) the magistrate’s office was 12 miles away; (2) it was often very busy on weekend evenings, meaning that a search warrant application might not be considered immediately; (3) and the emergency room was likewise often very busy on weekend evenings. The officer estimated the total delay associated with going to the magistrate’s office, procuring a warrant, and executing it to be two to three hours. It looks like the trial prosecutor did an excellent job of presenting evidence supporting each aspect of the delay.
Two things stand out about Fletcher. First, the facts here are not extremely unusual. At least for officers who regularly use Intoximeters that aren’t adjacent to a magistrate’s office, all three of the factors present in Fletcher will often be present. So although obtaining a warrant when possible remains advisable, it appears that the court has adopted an expansive view of exigent circumstances in this context. Second, the court specifically rejected the idea that the admissibility of retrograde extrapolation testimony undercuts the exigency, an argument I considered in my earlier post. All in all, it’s an important case, and one that most officers will like.