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Emergency Exception: When can police lawfully enter a home without a Search Warrant?

Posted by Dmitry Gorin | Apr 01, 2008 | 0 Comments

In most instances when the police decide to search a home, the Constitution requires law enforcement to have a preapproved search warrant. A search warrant provides a justification, prescreened by a judge, explaining why the police can invade the privacy of someone's house. When the justification is insufficient, the judge denies the search warrant and the police cannot search with the court's blessing.Several exceptions exist to the warrant requirement that are frequently litigated by way of Penal Code Section 1538.5 Motions in Southern California courtrooms. These are also referred to as Search and Seizure Motions, or Motions to Suppress Evidence, by Los Angeles criminal defense lawyers and prosecutors. The emergency exception to having a search warrant is one basis law enforcement frequently falls back on to justify the search of a home without a warrant. The basic rule of law is that to justify a warrantless entry by law enforcement in an emergency situation: (1) under the totality of the circumstances, law enforcement must have an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search Tagged as: federal law and defense, probation and sentencing laws


announoous on January 23, 2010 at 8:20 a.m. wrote: well im from oregon and i just recieved a call from my mother back home in cali saying one of my brothers parties got busted... The thing that has me questioning the police officers is that are they aloud to just bust in your doors and walk in your house if the kid opened the door not only that they also through him in hand cuffs and he was the only one at the party soober! alsodeep on December 9, 2009 at 6:41 p.m. wrote: Dear Author ! Now all became clear to me, I thank for the help in this question. unknown on May 29, 2008 at 3:01 p.m. wrote: I think it is important to obtain a search warrant in order to give citizens their Constitutional liberties. However, I think there are many circumstances where a house should be searched even without a search warrant. For instance, like in the case where the police officers saw people smoking and they searched the house without a warrant. There were 46 six marijuana plants, obviously there people are probably dealing to many people, yet they would let off the hook, because the police officers had no warrant. This does not make any sense to me. Granted, the police did not have a warrant to search the house and they were only smoking marijuana, which is a minor misedemeanor, but I feel like if a search warrant was obtained then these people would know their house was going to be searched and they would have hidden the evidence or put it in a different place to not get caught. I think sometimes the need of a search warrant lets some people off the hook. Also, as American citizens, I feel like we should know our laws and our rights; we live in this country. Therefore, I think people should know they have the right to not want their house searched, and if they do not know this, then I think that should be their loss. Yes, some people might say, Ashleigh Lew on April 24, 2008 at 10:17 p.m. wrote: I think that this issue regarding police's search of properties without a warrant is an interesting one, in that it presents the fine line between ensuring the overall safety of a community through immediate searches (without a warrant) and upholding citizens' Fourth Amendment right to protection against search and seizure. It is important to note the exceptions expressed in the Search and Seizure Motions, which state that law enforcement is able to enter and search a home without a search warrant if and only if there is an 'objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm.? In other words, it is only under pressing emergency situations that the police have the authority to perform warrantless searches, since their presence can save a life. In the cases of U.S. v. Snipe and People v. Hua, two completely different scenarios and circumstances are presented, yet the police responded to these situations in the same way. In U.S. v. Snipe, the police had justifiable means for entering the residence in question after receiving a hysterical call pleading for the cops to come immediately and, upon seeing a suspicious-looking car and individual walking into the residence, they found it within their jurisdiction to enter the home. And even though it was deemed that there was no emergency at the time, the police took it upon themselves to leave and obtain a warrant based on their observations; therefore, by obeying the Search and Seizure Motions and working within the justice system in order to uncover a crime (e.g. the firearm), the police were just in this instance to search without a warrant and thus reiterated the purpose of the justice system. In contrast, in People v. Hua the circumstances clearly do not justify the police?s invasion of the residence in question, and can thus be deemed as violating Fourth Amendment rights. Because the police entered the home essentially for a drug bust, clearly there was no pressing emergency at hand that could justify the police?s entry and ?protective sweep for ?safety? purposes,? and thus the police overextended their jurisdiction to invade the home without a search warrant. Thus, for the police to claim ?a pressing emergency situation? in this case, it is to breach the citizens? civil liberty to having privacy and sanctity in their own home. Overall, I think that the extent to which law enforcement can perform a warrantless search is dependent on the circumstances of the situation, and that the pursuit of justice is never black and white. The question posed in the blog, Kyle Reilly on April 13, 2008 at 5:08 p.m. wrote: Obtaining a search warrant is essential to the future success and to maintain our Constitutional liberties. Without due process and proper search and procedure protocol, we are nothing more than a totalitarian regime and a police state. The law provides that law enforcement may enter the premises because of a strong inclination or belief that immediate police entry is essential and needed. However, I believe that law enforcement should not be able to use observations from their visit in order to obtain a search warrant. Evidence outside of their visit must be used in order to obtain a search warrant. The police were called to the scene in order to help people in what they believed to be a dangerous situation. However, drugs do not harm other citizens and it is simply not fair to take in this experience. Their violating the search and seizure clause only allows for them to help people in an emergency situation, and does not allow them to use what they found as evidence for obtaining a search warrant to investigate narcotics. If they want to obtain a search warrant for drugs, I believe they should be required to present evidence non-related to their visit because their visit was in response to what they believed to be an emergency situation and they were not granted access by the homeowner explicitly. -Kyle Reilly

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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