Exigent Circumstances

The exigent circumstances doctrine is most commonly used to justify warrantless entries into homes.  Courts are more willing to scrutinize the justification for a warrantless entry into the home because of the degree of the invasion of privacy.  A search based upon exigent circumstances requires both probable and an emergency including:

  • hot pursuit;
  • “protective sweeps”;
  • protection of life; or
  • preventing the destruction of evidence

See Welsh v. Wisconsin, 466 U.S. 740 (1984).  In order to enter a home on the basis of exigent circumstances, the officer must have a reasonable belief that there is an emergency that requires immediate action such that obtaining a warrant is not practical.  Once in the home, a search may develop into a probable cause search if contraband or evidence is observed in plain view or if someone with authority to consent to a search of the home provides consent.

Community Caretaking

The community caretaking exception to the warrant requirement is based on the concept that law enforcement performs duties beyond simply enforcing the law and is closely related to the exigent circumstances exception.  An officer’s duties extend to assisting and protecting the community and to maintaining order.  In order for the community caretaking exception to apply, the government must show:

  • the officer reasonably believes that he or she has a to protect the welfare of an individual or the community under the circumstances;
  • there is a potential for harm that requires the officer’s immediate action; and
  • the officer lacks the information needed to obtain a warrant.

See Cady v. Dombrowski, 413 U.S. 433 (1973); Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999).  The courts will consider the officer’s subjective motivation in determining whether the community caretaking exception should apply.

Reasonable Suspicion / Terry Stops

An officer may perform a limited search of a person without probable cause when the search is performed for the purposes of determining whether a person is armed. See Terry v. Ohio, 392 U.S. 1 (1968).  In order to justify a “pat-down” under Terry, an officer must be able to articulate why he or she had reasonable suspicion to believe that a person is armed.  Absent such justification, the search is unlawful; however, the evidentiary hurdle is low.  Commonly, searches for “weapons” are used as an attempt to justify drug arrests when the officer reports feeling something in the person’s pocket that the officer knows from training and experience to be contraband.

© 2016 David A. Nachtigall, Attorney at Law, PLLC

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