Editor’s note: This article is taken from the 2011 edition of Warrantless Search & Seizure, which is now available for purchase on the TDCAA website (www.tdcaa.com) or by calling 512/474-2436.
Navigating the Fourth Amendment and the law of warrantless searches and seizures largely involves caselaw rather than statutes, and today’s principles are the results of more than 200 years of judicial evolution. For instance, does an officer’s subjective intent in making a traffic stop matter? Today, no, but 25 years ago, it did. Which of the officer’s five senses can he use to detect things about a suspect that will lead to probable cause? Our five senses haven’t changed over the years, but our ability to use them lawfully has, according to the courts.
Without question, federal and state law contains a decided preference for warrants. The advantages of having a warrant are: 1) the officer or prosecutor drafting the affidavit can discuss the facts and craft a statement of probable cause with care; and 2) a magistrate reviews the information from the officer or prosecutor before deciding to issue the warrant. When a case involving a warrant goes to court, the presumption is that the seizure was lawful, and the burden is on the defendant to show the warrant was deficient.1
Nonetheless, courts recognize that it is not always practical or desirable to ask an officer to stop what he’s doing to get a warrant, and for this reason, federal and state constitutional law recognize several exceptions to the rule requiring a warrant for any search. This article will address two of those exceptions that are similar: exigent circumstances and community caretaking. Understanding the differences between the two is important and could mean the difference between evidence being admitted or not.
Keep in mind that the root of any Fourth Amendment question goes back to the Fourth Amendment’s protection against unreasonable searches and seizures. Virtually every question will begin by looking at the reasonableness of the officer’s actions, as well as the reasonableness of the defendant’s belief that he shouldn’t have been the subject of that search or seizure.
Probable cause along with exigent circumstances may justify a search or entry without a warrant.2 This is also known as the “emergency doctrine.” Article 14.05 of the Code of Criminal Procedure also includes a provision that authorizes officers to enter homes without a warrant with exigent circumstances.3 Exigent circumstances cases typically involve:
• protection of life (first aid; extracting children who appear in danger; protecting an undercover officer or informer; or making a protective sweep);4
• protection of property (such as extinguishing a fire or stopping a burglary);5
• preventing destruction of evidence;6 and
• pursuing a fleeing felon (“hot pursuit”).7
Remember that exigent circumstances may justify the initial entry in the house, but because the purpose of the exception is to aid someone in distress or to secure safety, once the crisis is contained, further searching is not permitted.8 A warrant or another exception may authorize continued searching of the premises, however, and officers can secure the scene for the time it takes to get a warrant. The exigent circumstances doctrine also does not include a general murder scene exception that would authorize unlimited search of the premises, although officers may enter a home to provide immediate aid or to search for other victims or a killer.9
Because the exigent circumstances exception is typically applied in cases where officers need to make a warrantless entry rather than a warrantless stop or detention, the exigent circumstances exception typically will not be relevant in a traffic stop. It may become relevant, however, if a driver flees police, abandons his vehicle, and runs into a house or building.
Protection of life
Four circumstances must be present when officers enter a home, without consent or warrant, to search under these circumstances:
• the offender might escape if police do not make an immediate entry;
• the offender has demonstrated that he poses a danger to the community (for instance, the crime just committed is a crime of violence);
• the offender has been pursued into the house continuously from the crime scene; and
• the warrantless arrest would be lawful if accomplished in a public place but that cannot be done because of the suspect’s decision to retreat into a private place.
In Warden v. Hayden,10 the Supreme Court held the entry into a house by officers in pursuit of an armed robber was justified because any delay to secure a warrant would place the lives of others in danger. The information must be fairly specific, however; merely investigating a potential danger may not justify warrantless entry.11
Information about someone the defendant has harmed may be sufficient to justify entry into the place where officers reasonably believe the victim to be.12 Search of a person police find unconscious is reasonable and necessary for purposes of identification and possible discovery of relevant medical information.13
Exigent circumstances may allow officers to improve their ability to view inside the defendant’s residence, for instance, by placing a ladder against the building.14
Destruction of evidence
Officers commonly use the exigent circumstances doctrine in situations in which they reasonably believe the defendant is about to destroy contraband.15 In determining whether the entry was reasonable, courts will look at factors including:
• the seriousness of the offense;
• the strength of the probable cause; and
• the likelihood that the evidence will not be in the house if the search is delayed until a warrant is obtained.16
In Welsh v. Wisconsin, the Supreme Court found this exception did not authorize a warrantless entry into a DWI suspect’s house to seize blood evidence before any alcohol metabolized and evidence of the suspect’s potential intoxication was “destroyed.”17 However, DWI was not a jailable offense in Wisconsin at the time, and Texas courts have distinguished Welsh by noting the nonjailable offense was not serious enough to warrant the intrusion.18
Under the related “hot pursuit” doctrine, officers can search for both the suspect and any weapons they have reason to believe the suspect may have secreted where he is found.19
Protective sweeps are limited to a cursory search of the premises to assure that they do not contain people who endanger the officers’ safety.20 Officers performing a sweep must actually believe that dangerous people are on the premises, based on specific and articulable facts.21 Police must have objective evidence that the house contains someone who poses a danger to those present during the arrest of the defendant.
Besides searching the suspect, officers may also include accomplices or others who reasonably could present a danger in a protective sweep.22 Once inside the house under the justification of the emergency doctrine, another exception to the warrant requirement—such as plain view or consent—may allow officers to remain inside and potentially seize evidence.23
These prerequisites establish exigent circumstances as an exception to the requirement for a search warrant:
• entry into a constitutionally protected place is necessary to investigate or prevent a dangerous situation, and
• immediate action is necessary to prevent harm to individuals or the community
A variation on the exigent circumstances doctrine, the community caretaking exception allows an officer to stop a person when the officer reasonably believes the person needs the officer’s assistance.24 This exception recognizes that “police officers do much more than enforce the law, conduct investigations, and gather evidence to be used in criminal proceedings. Part of their job is to investigate vehicle collisions—where there is often no claim of criminal liability—to direct traffic, and to perform other duties that can be best described as ‘community caretaking functions.’”25
An officer does not need any basis for believing the suspect is engaging or about to engage in any criminal activity under the community caretaking stop.26 Instead, the circumstances create a duty for the officer to protect the welfare of a person or the community. The potential for harm must require immediate, warrantless action.
The Court of Criminal Appeals has held that a police officer may stop and assist an individual whom a reasonable person, given all of the circumstances, would believe needs help. In determining whether a police officer acted reasonably in stopping an individual to determine if he needs assistance, courts consider the following factors:
• the nature and level of the distress exhibited by the individual;
• the location of the individual;
• whether or not the individual was alone and/or had access to assistance independent of that offered by the officer; and
• to what extent the individual, if not assisted, presented a danger to himself or others.27
A community caretaking stop does not include the right to search incident to the stop. Whether an officer may search for weapons will depend on whether she has an independent reason to believe the suspect is armed.28 Wright involved an officer-citizen encounter on public property. The Wright court suggested that the community caretaking exception might also apply to private property (including homes), but “[o]nly in the most unusual circumstances.”29
Although the Court of Criminal Appeals and the U.S. Supreme Court both initially held that the community caretaking stop can apply to both passengers and drivers,30 other courts since have indicated that passenger distress signals less of a need for law enforcement intervention.31 Several courts have addressed the question of when weaving in a lane and drifting out of a lane of traffic is enough to give rise to reasonable suspicion or justify a community caretaking stop and have concluded:
• driver distress is a more compelling justification than passenger distress;
• more drivers on the road in potential danger present a more compelling justification for a community caretaking stop; and
• the elements for the crime of weaving are different from weaving as an element of a decision to pull over a driver based on community caretaking or reasonable suspicion of DWI.32
One other note about the community caretaking exception: This is the only exception to the warrant requirement where an officer’s subjective motivation is significant. An officer must actually be motivated by safety or concern for someone’s well-being. The officer’s belief must also be reasonable.
The prerequisites that establish “community caretaking” as an exception to the requirement for a search warrant include:
• circumstances create a duty for the peace officer to protect the welfare of an individual or the community,
• potential for harm requires immediate action, and
• the officer has insufficient information to prepare a valid warrant affidavit.
Please note the PDF below with a list of U.S. v. Texas treatment of exceptions to the warrant requirement.
1 See, e.g., Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004) (discussing Fourth Amendment’s strong preference for searches conducted pursuant to a warrant and the need for an incentive to encourage police to use the warrant process). For more information on drafting and executing warrant documents, see Warrants Manual for Arrest, Search & Seizure by Tom Bridges and Ted Wilson (TDCAA © 2009).
2 Welsh v. Wisconsin, 466 U.S. 740 (1984); Brimage v. State, 918 S.W.2d 466 (Tex. Crim. App. 1996).
3 Tex. Code. Crim. Proc. art. 14.05(2) (“[A]n officer making an arrest without a warrant may not enter a residence to make an arrest unless … exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant”).
4 Brigham City v. Stuart, 547 U.S. 398 (2006) (police can enter home without warrant when they see fighting inside); Maryland v. Buie, 494 U.S. 325 (1990) (officer may make protective sweep during an in-home arrest upon reasonable belief that the area could harbor individuals posing danger to those on the arrest scene); Mincey v. Arizona, 437 U.S. 385 (1978) (authorizing warrantless entries based upon a reasonable belief that someone needs immediate assistance); Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) (entry into defendant’s home justified under exigent circumstances when police entered defendant’s home through front door that, according to 911 call from neighbors, had been standing open for an unusual amount of time); White v. State, 201 S.W.3d 233 (Tex. App.—Fort Worth 2006, pet. ref’d) (emergency doctrine allows warrantless entry into house to ensure domestic violence victim’s safety and to investigate potential domestic violence assault); Stewart v. State, 681 S.W.2d 774 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d) (exigent circumstances justifying a warrantless entry include: 1] rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance; 2] preventing the destruction of evidence or contraband; and 3] protecting officers from persons whom they reasonably believe to be present, armed and dangerous).
5 Michigan v. Tyler, 436 U.S. 499 (1978) (officer’s reasonable belief that a building is burning provides exigent circumstances to justify a warrantless search or entry); Barocio v. State, 158 S.W.3d 498 (Tex. Crim. App. 2005) (fact that burglary is in progress or has recently been committed provides exigent circumstances to authorize warrantless entry).
6 Cupp v. Murphy, 412 U.S. 291 (1973); Schmerber v. California, 384 U.S. 757 (1966); McNairy v. State, 835 S.W.2d 101 (Tex. Crim. App. 1991); Bass v. State, 732 S.W.2d 632 (Tex. Crim. App. 1987); Covarrubia v. State, 902 S.W.2d 549 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d); Sanders v. State, 855 S.W.2d 151 (Tex. App.—Houston [14th Dist.] 1993, no pet.) (officer justified in making defendant spit out matchbox from mouth to avoid possible destruction of evidence); Spears v. State, 801 S.W.2d 571 (Tex. App.—Fort Worth 1990, pet. ref’d).
7 Warden v. Hayden, 387 U.S. 294 (1967).
8 Bass v. State, 732 S.W.2d 632, 635 (Tex. Crim. App. 1987); Martinez v. State, 792 S.W.2d 525, 528 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (an officer cannot continue searching once he determines there is no fire).
9 Flippo v. West Virginia, 528 U.S. 11 (1999); Thompson v. Louisiana, 469 U.S. 17 (1984); Mincey v. Arizona, 437 U.S. 385 (1978).
10 Warden v. Hayden, 387 U.S. 294 (1967).
11 See, e.g., Gonzalez v. State, 148 S.W.3d 702 (Tex. App.—Austin 2004, no pet.) (insufficient information to justify entry into defendant’s apartment following defendant’s call to 911 about stab wounds where he gave evasive answers about what happened); White v. State, 201 S.W.3d 233 (Tex. App.—Fort Worth 2006, pet. ref’d) (emergency doctrine allows warrantless entry into house to ensure domestic violence victim’s safety and to investigate potential domestic violence assault).
12 Tuffiash v. State, 948 S.W.2d 873, 877 (Tex. App.—San Antonio 1997, pet. ref’d) (warrantless search allowed for defendant’s wife when officers were told defendant had hit her on the head with a hammer); see also Janicek v. State, 634 S.W.2d 687, 691 (Tex. Crim. App. 1982); Bolden v. State, 634 S.W.2d 710, 713-14 (Tex. Crim. App. 1982).
13 Janicek, 634 S.W.2d 687; Perez v. State, 514 S.W.2d 748 (Tex. Crim. App. 1974).
14 U.S. v. Gill, 354 F.3d 963 (8th Cir. 2004) (while attempting to capture defendant who had fled inside, the plain-view sight of a handgun in the residence justified a warrantless sweep to secure the apartment and ensure no victims were present).
15 Ker v. California, 374 U.S. 23 (1963) (plurality op.); McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991) (authorizing entry into house to prevent “the possible destruction or removal of evidence” of meth lab); Barocio v. State, 158 S.W.3d 498 (Tex. Crim. App. 2005); Effler v. State, 115 S.W.3d 696 (Tex. App.—Eastland 2003, pet. ref’d) (distinguishing State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002)).
16 Ker, 374 U.S. 23; but see Welsh v. Wisconsin, 466 U.S. 740 (1984) (warrantless entry into a house not authorized to seize DWI suspect before blood metabolized and became “destroyed”).
17 Welsh, 466 U.S. 740.
18 See, e.g., Gallups v. State, 151 S.W.3d 196, n.7 (Tex. Crim. App. 2004); see also Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002) (valid warrant for DWI suspect’s blood eliminates need for consent).
19 Warden v. Hayden, 387 U.S. 294, 298-99 (1967) (search permissible for suspect and weapons); Rue v. State, 958 S.W.2d 915, 918 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
20 Maryland v. Buie, 494 U.S. 325 (1990); see also Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000); Beaver v. State, 942 S.W.2d 626, 629-30 (Tex. App.—Tyler 1996, pet. ref’d).
21 Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000); see also Davis v. State, 74 S.W.3d 90 (Tex. App.—Waco 2002, no pet.); Newhouse v. State, 53 S.W.3d 765 (Tex. App.—Houston [1st Dist.] 2001, no pet.); U.S. v. Gould, 364 F.3d 578 (5th Cir. 2004).
22 Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002); Davis, 74 S.W.3d 90; Torrez v. State, 34 S.W.3d 10 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
23 Johnson v. State, 226 S.W.3d 439 (Tex. Crim. App. 2007).
24 Cady v. Dombrowski, 413 U.S. 433 (1973); Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003) (exigent circumstances applies when “police are acting in their ‘crime-fighting role.’ … On the contrary, the emergency doctrine applies when the police are acting … in their limited community caretaking role to ‘protect or preserve life or avoid serious injury.’”); Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999); Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998).
25 Wright, 7 S.W.3d at 151, citing Cady v. Dombrowski, 413 U.S. at 441.
26 Wright, 7 S.W.3d at 148.
27 Wright, 7 S.W.3d at 151-52; see also Travis v. State, No. 06-09-238-CR (Tex. App.—Texarkana Aug. 5, 2010, no pet. h.) (community caretaking did not justify stop after the driver’s brother, who did not want to pursue charges, told an officer that the driver had assaulted him and left the scene intoxicated); Chilman v. State, 22 S.W.3d 50, 55 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (officer detention appropriate for car stopped at 2 a.m. in front of barricade at entrance of university); State v. Ross, 999 S.W.2d 468 (Tex. App.—Houston [14th Dist.] 1999), aff’d, 32 S.W.3d 853 (Tex. Crim. App. 2000) (officers had sufficient grounds for safety concerns for two children sleeping in truck parked in front of a bar after midnight on a cold night); Sweeney v. State, 6 S.W.3d 670, 671 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (community caretaking stop permitted under Hulit for driver traveling 40 mph in the rain with flat tire); Bilyeu v. State, 136 S.W.3d 691 (Tex. App.—Texarkana 2004, no pet.); Eichler v. State, 117 S.W.3d 897, 901 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“The first factor, nature and level of distress, is given the greatest weight”).
28 Horton v. State, 16 S.W.3d 848, 852 (Tex. App.—Austin 2000, no pet.) (officers conducting a community caretaking stop have only the same ability to make a weapons search as during a Terry stop).
29 Wright, 7 S.W.3d at 152.
30 Wright, 7 S.W.3d at 152, citing Cady v. Dombrowski, 413 U.S. 433 (1973); Franks v. State, 241 S.W.3d 135 (Tex. App.—Austin 2007, no pet.) (encounter at a rest stop became an impermissible detention when officer told defendant, crying in her car, that she could not go).
31 Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002); Andrews v. State, 79 S.W.3d 649 (Tex. App.—Waco 2002, pet. ref’d) (defendant driver pulling to the side at 1:00 a.m. so that his wife could vomit out the passenger side of the car didn’t justify stop based on community caretaking exception).
32 See e.g., Corbin, 85 S.W.3d 272 (crossing over side stripe onto shoulder of road for 20 feet and driving 52 mph in a 65 mph zone insufficient to justify stop under community caretaking); Tyler v. State, 161 S.W.3d 745 (Tex. App.—Fort Worth 2005, no pet.) (discussing weaving versus “straddling a lane”); Bellard v. State, 101 S.W.3d 594 (Tex. App.—Waco 2003, pet. ref’d) (causing another vehicle to take evasive action is sufficient); Wright v. State, 18 S.W.3d 245, 247 (Tex. App.—Austin 2000, pet. ref’d) (on remand) (vomiting by passenger did not justify reasonable suspicion for officer to make stop); Ehrhart v. State, 9 S.W.3d 929 (Tex. App.—Beaumont 2000, no pet.) (weaving did not justify community caretaking stop); State v. Arriaga, 5 S.W.3d 804, 807 (Tex. App.—San Antonio 1999, pet. ref’d); but see Gibson v. State, 253 S.W.3d 709 (Tex. App.—Amarillo 2007, pet. ref’d) (community caretaking did not justify stop of specific car matching mother’s description when police were trying to locate her missing teenaged daughter, but the daughter, as a passenger in the car, did not exhibit nature and level of distress sufficient to independently justify the stop).