Exigency

While the police ordinarily must obtain a warrant to conduct a search of a private area, exigent circumstances sometimes justify a warrantless search. What sort of exigency might allow police officers to search without a warrant?

  • If the police have probable cause to believe evidence related to a crime will be found inside of a premises and the evidence would be destroyed if the police waited for a warrant, an immediate search (without a warrant) is permissible. This fact pattern is common where the police interrupt a drug deal and the participants flee into a building. If the cops wait for a warrant to search the building, the drugs will likely be gone (usually flushed down the toilet). Therefore, the police usually will be justified in entering and searching the building without a warrant.

  • If the police have probable cause to believe evidence related to a crime will be found inside of a premises and waiting for a warrant would endanger the safety of the police or a third party, an immediate search is permissible. For example, anytime a violent crime has been committed and the suspect is still with the victim inside of a home, the police can generally enter the home and search without a warrant.

  • Police officers can also enter private premises if they are in pursuit of someone who has committed a violent crime. If the suspect is armed, the police may conduct a warrantless search for the weapon in addition to searching for the suspect.

Exigency searches are limited in scope. For example, if the exigency involves securing a fleeing suspect and there is no evidence he is armed, the police cannot search a bureau’s drawers or other small areas under the exigency exception.

Exigency searches can sometimes justify warrantless searches of individuals and their personal effects. Exigency searches of individuals are less common than exigency searches of buildings because if the police have probable cause to believe a person has been involved in criminal activity, there will usually be an arrest. If the suspect is arrested, the police are entitled to search his body and his belongings incident to that arrest (and the exigency argument is unnecessary).

Police officers also have the right to conduct protective sweeps without a warrant. A protective sweep is similar in some ways to an exigency search. When police officers have made an arrest or are searching for a suspect in a particular (private) location, they are permitted to walk through the location in order to ensure there is nothing present that can harm them. A protective sweep must be limited in scope to areas that could contain a dangerous person or item – it does not permit a full search of everything within the location.

Finally, if the police believe there is evidence inside of a private area, they can secure the premises by creating a physical barrier around the location (either with officers or crime tape) and wait for a warrant. While they are not allowed to search until the warrant has been authorized, the cops are allowed to restrict access to the location while waiting for a judge or magistrate to consider the application for a warrant.

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