The “Exigent Circumstances” Exception to the Warrant Requirement in DC

The Fourth Amendment to the Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The requirement that police have a warrant to enter a person’s house without permission is one of our most basic freedoms. One exception to the warrant requirement is where so-called “exigent circumstances” require police to enter a residence without a warrant. In such cases, there is a “heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant.”[1] The D.C. Court of Appeals has adopted a seven-factor test to determine when a warrantless entry and search of a residence will be allowed under this exception:

(1) That a grave offense is involved, particularly a crime of violence;

(2) the suspect is reasonably believed to be armed;

(3) a clear showing of probable cause;

(4) a strong reason to believe that the suspect is in the dwelling;

(5) the likelihood of escape if not swiftly apprehended;

(6) a peaceful entry as opposed to a “breaking”; and

(7) the time of entry (night or day).[2]

The D.C. Court of Appeals has also explained that “[u]nder limited circumstances, the ‘likelihood of escape’ inquiry properly includes consideration of the probability that evidence as well as the suspect may be lost.”[3] However, the D.C. Court of Appeals has underscored that this consideration should only appear in limited circumstances, noting that “a preservation of the evidence rationale, if unrestrained, could undermine the Fourth Amendment’s protections.”[4] Although the D.C. Court of Appeals has never set out a test for what would constitute such “limited circumstances,” the D.C. Circuit has, stating that police will meet their burden to establish presence of this factor when there is:

1) a reasonable belief that third persons are inside a private dwelling and 2) a reasonable belief that these third persons are aware of an investigatory stop or arrest of a confederate outside the premises so that they might see a need to destroy evidence.[5]

With respect to the “breaking” factor, the Supreme Court has explained that “[w]hat constitutes ‘breaking’ seems to be the same as in burglary: lifting a latch, turning a door knob, unhooking a chain or hasp, removing a prop to, or pushing open, a closed door of entrance to the house,—even a closed screen door is a breaking.[6]

[1] Dorman v. United States, 435 F. 2d 385, 392 (D.C. Cir. 1970).

[2] United States v. Minick, 455 A. 2d 874, 876 (D.C. 1983) (en banc); United States v. Harris, 629 A. 2d 481, 487 (D.C. 1993).

[3] Brooks v. United States, 367 A. 2d 1297, 1303 (D.C. 1976) (quoted in Minick, 455 A. 2d at 878).

[4] Brooks, 367 A. 2d at 1303.

[5] United States v. Socey, 846 F. 2d 1439, 1445 (D.C. Cir. 1988).

[6] Sabbath v. United States, 391 U.S. 585, 589 n.5 (quoting Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 798, 806 (1924)).