September 1996


          Creating Exigent Circumstances 
          By Edward M. Hendrie, J.D.
     
_____________
Courts use three diferent analytical approaches when they examine
the creation of exigent circumstances by police.
_____________


Special Agent Hendrie, Drug Enforcement Administration, is a
legal instructor at the FBI Academy.


A police informant arranges to purchase one kilogram of cocaine
from a suspected trafficker. After being shown the cocaine at the
suspect's apartment, the informant tells the suspect he must
leave to get the money to complete the transaction. Once outside,
the informant notifies the surveillance team that the cocaine and
the suspect are in the apartment. Within minutes, the
surveillance team makes a warrantless entry to arrest the suspect
and seize the cocaine. Given that searches conducted without a
warrant are presumed to be unreasonable,1 subject to a few
exceptions, was the warrantless entry and search of the apartment
lawful?


A warrantless entry into premises is constitutionally permissible
if there are exigent circumstances. Such circumstances include: 


1) An officer's reasonable belief that the evidence may be
imminently destroyed2 


2) Hot pursuit of a suspect whom officers reasonably believe is
in the area to be searched3


3) A search where there is an immediate need to protect or
preserve life;4 or 


4) A threat to the safety of officers conducting a protective
sweep of premises.5


One argument that the defendant could raise in the above case is
that the police had an opportunity to obtain a warrant but failed
to do so. Instead, when the exigency presented itself, they took
advantage of it and searched without the warrant.6 
However, a suspect does not have a constitutional right to be
searched or arrested at the earliest moment after probable cause
is established.7 Officers may delay obtaining a warrant until the
events have "...proceeded to a point where [they] could be
reasonably certain that the evidence would ultimately support a
conviction."8 Moreover, "...even if the [officers] might have
been able to obtain a warrant earlier in the day, their failure
to do so at the first opportunity does not bar them from acting
on an exigency that arises later."9 


Particularly with drug cases, the fluidity of an ongoing
investigation makes obtaining an adequate   search warrant
difficult to time in the flow of events.10 Furthermore, there are
instances when the opportunity to obtain a warrant presents
itself, but the police must delay acquiring it until they develop
a more comprehensive picture of the illegal operation. 
If a warrant is executed prematurely, yet-undiscovered suspects
may realize the police are on their trail and take steps to avoid
arrest and hide evidence. If the police, on the other hand,
concentrate their limited resources on investigating the criminal
enterprise, they could expand the scope and effectiveness of the
operation. Granted, officers may face an exigency at some point,
requiring them to act immediately without a warrant, but the
additional evidence and suspects that they ultimately discover
could have been irretrievably lost if they had acted prematurely
and executed a search warrant earlier.


This article addresses constitutional issues that arise when,
instead of the exigency developing spontaneously during the
investigation, the police create the exigency. Because good,
proactive police work often creates exigencies, the legal issue
is not simply whether the police created the exigency, but
whether the police impermissibly created the exigency. If the
police impermissibly create an exigency, it is likely that the
seized evidence will be suppressed.


ANALYTICAL APPROACHES OF THE COURTS


The courts use three different analytical approaches to determine
if police impermissibly created an exigency. Some courts look to
whether the police deliberately created the exigency. Other
courts examine the appropriateness of the investigative tactics
to see if those tactics unreasonably caused the exigency, even
though the police did not deliberately create the exigency. Still
other courts look to whether the police acted lawfully,
regardless of whether they deliberately intended to create the
exigency.


Deliberately Creating an Exigency


One approach used by courts involves an examination of whether
the police deliberately created the exigency that resulted in the
warrantless search. For example, in United States v. Thompson,11
a DEA special agent working undercover drove a confidential
informant (CI) to the suspect's house. The CI then went inside to
make a drug purchase, while the agent waited in the car. As
surveillance agents watched, the defendant went out to the car
and, at some point, recognized the undercover agent as a DEA
agent.


The agents then immediately  arrested the defendant and entered
the house to ensure the CI's safety and prevent the destruction
of evidence. The agents also arrested a co-defendant and seized a
substantial amount of cocaine and marijuana from inside the
defendant's house.


The defendant appealed his conviction arguing, among other
things, that the agent deliberately created the exigency that
resulted in the seizure of the illegal drugs. The U.S. Court of
Appeals for the Fifth Circuit agreed with the defendant that the
agents had probable cause and an opportunity to obtain both an
arrest warrant and a search warrant the night before the
undercover operation. The court, however, decided that the
agents' failure to obtain the warrants at the first opportunity
was only one factor to consider in determining whether they
deliberately created the exigency, and that factor was not
dispositive. 


The court, more concerned about whether the agent drove to the
suspect's home knowing that the suspect would recognize him,
remanded the case to the district court to determine that issue.
On remand, the district court ruled that the agent did not know
the defendant's identity ahead of time and, therefore, could not
have predicted that the suspect would recognize him.
Consequently, the court held that the agent did not deliberately
create the exigency.12 


A similar approach was used in United States v. Socey,13 where a
District of Columbia Metropolitan Police detective obtained
information from a confidential informant that Robert Socey would
be receiving a shipment of illegal drugs at his house. The
detective corroborated many of the details given regarding the
travel of Socey and Vincent Soper.
Several days later, the detective spotted a brown Datsun, the
suspected delivery vehicle, parked outside Socey's house. The
detective maintained surveillance of the vehicle until other
officers arrived; he then left to obtain a search warrant.
Approximately 5 hours later, the surveillance team saw Soper
enter the house. A short time later, he loaded three large trash
bags into the brown Datsun and drove off. The police stopped the
car after it was out of sight of the house and arrested Soper.
They found 24 pounds of marijuana in the Datsun.
Another vehicle then left the house, and it too was stopped by 
two marked police units, but within view of the house. This
caused neighbors to congregate to see what was happening.
Fearing the commotion would alert the occupants of the target
house, the police immediately entered the house to secure it
until the search warrant could be obtained.14 They arrested
Robert Socey inside, as he was shaving marijuana off a large bale
and bagging it.


A federal district court suppressed the evidence that officers
found in plain view upon entering the house. The U.S. Court of
Appeals for the District of Columbia reversed that ruling because
there was no indication that the officers deliberately stopped
the second car close to the house to purposely create the
exigency.


The court stated that the police could have pursued a different
course of conduct that would not have resulted in the exigency,
but it would not second-guess the police from the vantage point
of hindsight. Because the police did not deliberately create the
exigency, it was irrelevant that another investigative tactic
might have been more prudent.15


Reasonableness of Investigative Tactics that Create an Exigency
Not all courts have deferred to the judgment of the officer on
the street regarding investigative tactics. Some have engaged in
the very second-guessing that the Socey court found
inappropriate. For example, in United States v. Duchi,16 the U.S.
Court of Appeals for the Eighth Circuit held that while
deliberate creation of the exigency by the police is
unacceptable, it is not necessary that the police act in bad
faith for them to impermissibly create an exigency.
In Duchi, officers altered a package containing two bricks of
cocaine by substituting a book for one of the bricks. When a
female suspect picked up this package from the local UPS office,
the police followed her to her residence. Fearing that the
suspects would destroy the remaining brick of cocaine when they
opened the package and discovered the alteration, the officers
entered the residence without a search warrant and seized the
unopened package.


The Duchi court observed that in a sense, "the police always
create the exigent circumstances that justify warrantless entries
and arrests. Their discovery of the criminal causes him to flee;
their discovery of contraband causes the criminal's attempt to
destroy or divert the evidence."17 The court then scrutinized the
investigative tactics of the officers and found that while the
officers did not deliberately create the exigency, their
investigative tactics impermissibly caused it.


The court acknowledged that the police did not have probable
cause to search the suspect's residence before she brought the
UPS package home and, therefore, could not have obtained a
warrant earlier. The court, however, felt that the  process of
obtaining a warrant could have been started before the package
was picked up, with the warrant being completed telephonically
after the suspect arrived home.18 Concluding that the entry
without a warrant was not justified because the danger of the
evidence being destroyed was a foreseeable consequence of
altering the contents of the package, the court suppressed all
evidence derived from the entry.


In United States v. Rico,19 the Court of Appeals for the Fifth
Circuit also focused on "the reasonableness and propriety of the
investigative tactics that generated the exigency." The Rico
court's first concern was whether the agents in that case could
have obtained a warrant before the exigency developed. The court
found that the agents did not have sufficient time to obtain a
warrant because the events began to unfold almost immediately
upon their arrival at the residence.


Next, the Rico court looked into whether the agents created the
exigency by using unreasonable law enforcement tactics. The
agents already had seized approximately 113 kilograms of cocaine
that day from a house and from cars that had driven away from the
house. The agents had information linking this house to another
house and had just begun surveillance of the second house when
they saw a suspect leaving the residence. They believed the
suspect was loading a vehicle with cocaine and preparing to
depart. The court found that it was reasonable for the agents to
leave their covert surveillance position and arrest the suspect
in front of the residence, even though it created the exigency
that required an immediate sweep of the residence. 


The initial inquiry of both the Duchi and Rico courts, when
examining the investigative tactics of the police, was whether
the officers had time to obtain a warrant before the exigency
arose. The Duchi court disapproved of the enforcement tactics,
primarily because the court felt that the officers foresaw the
exigency and had a prior opportunity to at least begin the
process of obtaining a warrant. On the other hand, in Rico, the
court saw no prior opportunity to obtain a warrant.


Lawful Acts that Create an Exigency


Some courts view investigative tactics, such as knocking on the
door and waiting for the exigency to erupt, as "too easy a
by-pass of the constitutional requirement that probable cause
should generally be assessed by a neutral and detached magistrate
before the citizen's privacy is invaded."20 However, not all
courts share that view. For instance, in United States v.
McDonald,21   the full bench of the U.S. Court of Appeals for the
Second Circuit upheld an exigent circumstances entry after
agents, without a warrant, knocked on the door of a known illegal
retail drug operation and announced themselves.


The McDonald case developed as follows. Shortly before 10 p.m. on
September 8, 1988, an undercover agent was admitted into a 
one-room efficiency apartment on the first floor of an apartment  
building. The agent encountered a suspect sitting in a chair
pointing a cocked 9mm semiautomatic pistol at the floor but in
his direction. Another suspect, Errol McDonald, was sitting on a
couch, counting a stack of money within easy reach of a .357
magnum revolver. Four other men were in the apartment. 
The agent bought a small amount of marijuana and left the
apartment, only to return a short time later with reinforcements.
The agents knocked on the door, and as soon as they identified
themselves, they heard the sound of scuffling feet.


Simultaneously, they received a radio communication from the
perimeter team informing them that the occupants were attempting
to escape through a bathroom window. 
The agents then used a battering ram to force entry into the
apartment. They arrested the suspects and found large quantities
of cocaine and marijuana, along with two loaded weapons, drug
paraphernalia, packaging materials, and several thousand dollars
in cash.


The McDonald court decided that the exigency existed as soon as
the undercover agent made the drug purchase. The court went on to
find that even if the exigency had not existed at that point, the
agents did not impermissibly create the emergency because they
acted lawfully by knocking on the door and announcing their
presence.22 


The court held that it was irrelevant whether the police intended
to create the exigency. The fact that the agents fully expected
the occupants to attempt to escape or destroy evidence did not
render unlawful the otherwise lawful acts of knocking on the door
and identifying themselves. 


The McDonald court was guided by the U.S. Supreme Court's
rejection of inadvertence as a requirement for a valid plain view 
 seizure.23 The Supreme Court held that even if an officer fully
expects to find an item that is ultimately found in plain view,
the seizure of the item is authorized provided that the conduct
of the officer is lawful.24


The McDonald court based its determination of exigent
circumstances on an objective view of the totality of the
circumstances, not on the subjective state of mind of the law
enforcement agents. The court concluded, "When law enforcement
agents act in an entirely lawful manner, they do not
impermissibly create exigent circumstances."25 The court thought
it was not significant that the agents brought along a battering
ram when approaching the door. The essence of the court's
decision is that "[l]aw enforcement agents are required to be
innocent but not naive."26


The defendant also argued that drug-related crimes so frequently
involve exigent circumstances that the exception to the warrant
requirement threatens to become the rule. In response, the court
stated: 


If it is true that ongoing retail narcotics operations often
confront law enforcement agents with exigent circumstances, we
fail to see how such a sad reality constitutes a ground for
declaring that the exigencies do not, in fact, exist. To disallow
the exigent circumstances exception in these cases would be to
tie the hands of law enforcement agents who are entrusted with
the responsibility of combating grave, ongoing crimes in a manner
fully consistent with the constitutional protection afforded to
all citizens.27 


The U.S. Court of Appeals for the Third Circuit, in United States
v. Acosta,28 relied on the McDonald decision in focusing on
officers' conduct to decide if they acted lawfully. In Acosta,
several state and federal law enforcement agencies joined forces
to arrest 63 suspected drug traffickers.


One target was a suspect named Carlos Santiago. A five-person
arrest team was given three possible addresses for Santiago. When
the arrest team arrived at the first address, they found it to be
a three-story, multi-unit apartment building. The agents went to
the first-floor apartment, knocked, announced that they were the
police with a warrant, and ordered the occupants to open the
door. The agents then heard scuffling of feet, some commotion,
and a toilet flushing. 


A member of the perimeter team yelled that the occupants were
throwing items out the windows. The arrest team then broke down
the door and arrested three suspects. They also seized drugs  
and paraphernalia found in plain view. The district court
suppressed the evidence, and the government appealed.
One argument made by the defendants was that the agents ordered
them to open the door without legal authority and, therefore,
were trying to unlawfully gain entrance through involuntary
consent. However, the court pointed out that the occupants did
not open the door in response to the demand of the officers; the
offi-cers, instead, forced the door open because of the exigency.
It could not be said that the agents obtained involuntary consent
to enter, because no consent was given.


The defendants also claimed that the agents who knocked on the
door acted in bad faith by intentionally creating the exigency.
The court answered that charge by quoting from the U.S. Supreme
Court case of Scott v. United States,29 "...subjective intent
alone...does not make otherwise lawful conduct illegal or
unconstitutional."30


The Acosta court found that the conduct of the agents at the door
was objectively lawful; the court would not go further and
explore the subjective intent of the agents. The court held that
police conduct is not unlawful merely because an exigency arises
from it, even if the police intend to cause that exigency. If the
conduct of the police is lawful, the exigency is not
im-permissibly created. The court noted, "Exigent circumstances
are not to be disregarded simply because the suspects chose to
respond to the agents' lawful conduct by attempting to escape,
destroy evidence or engage in any other unlawful activity."31
In United States v. Tobin,32 DEA and U.S. Customs agents, while
on surveillance in an unrelated case, saw Ronald Tobin back into
the driveway of a house and place three clear plastic tubular
bags approximately 4 feet long in the garage. The agents
reasonably believed the bags contained cocaine.


The agents then approached the house and knocked for 3 or 4
minutes. One agent announced in English and Spanish, "I'm a
police officer, I would like to talk to you, I need for you to
come here."33 When Roger Ackerman finally answered the door, the
agents could smell marijuana emanating from inside the house.
Ackerman called Tobin to the door, and both denied that Tobin had
recently backed into the driveway of the house. The agents then
directed the defendants to the garage where they discovered that
the tubular bags, in fact, contained large quantities of cocaine.
While in the garage, one of the agents noticed that some screws
had been removed from the floorplate over the wheel well of one
of the cars. Upon lifting the wheel well cover, he discovered
$775,000 in cash. During a subsequent security sweep, the agents
also found three bales of marijuana in a shower stall.


The district court denied the defendants' motions to suppress the
evidence, and the defendants appealed the decision. The full
bench of the U.S. Court of Appeals for the 11th Circuit found
that the agents legally approached the house and that the
defendant consensually opened the door. Therefore, the exigency
that surfaced once the defendant opened the door was not
impermissibly created by the agents. The court stated:
There is no rule of private or public conduct which makes it
illegal per se, or a condemned invasion of the person's right of
privacy, for anyone openly and peaceably, at high noon, to walk
up the steps and knock on the front door of any man's 'castle'
with the honest intent of asking questions of the occupant
thereof--whether the questioner be a pollster, a salesman or an
officer of the law.34


CONCLUSION


Whenever practicable, it is best to obtain a warrant before
conducting a search because a search conducted with a warrant is
presumed to be reasonable. A search conducted without a warrant,
on the other hand, is presumed to be unreasonable. It is
necessary for the government to rebut that presumption by
establishing one of the exceptions to the warrant requirement.
Yet, it is not always feasible to obtain a warrant prior to
conducting a search. Under such exigent circumstances, an officer
may legally search without a warrant. 


While proactive law enforcement will inevitably result in
exigencies, it is necessary to avoid impermissibly creating them.
The courts use one of the following three tests to determine if
the police have impermissibly created an exigency:
1) Whether the police deliberately created the exigency


2) Whether the investigative tactics used by the police caused
the exigency, even though the police did not deliberately intend
to create the exigency; or 


3) Whether the police acted lawfully, regardless of whether they
deliberately intended to create the exigency.


Courts that scrutinize the investigative tactics will likely
disapprove if the officers have probable cause and an opportunity
to obtain a warrant but, instead, search without a warrant based
upon a foreseeable exigency that arises from something the police
put into motion. On the other hand, those courts that focus on
the intent of the officers to determine if they deliberately
created the exigency will not view the prior opportunity to
obtain a warrant as dispositive, but only as one factor to
consider in determining whether the officers deliberately created
the    exigency.


Some courts do not consider it improper to deliberately create an
exigency, regardless of a prior opportunity to obtain a warrant,
as long as the police conduct is objectively lawful. Because the
legal landscape is not yet settled in this area of the law, it is
advisable to consult in advance with legal counsel to determine
the prevailing precedent in one's jurisdiction and conduct
investigations in accordance with that standard.
Endnotes


1 Katz v. United States, 389 U.S. 347, 357 (1967). See also Vale
v. Louisiana, 399 U.S. 30, 34 (1969) and Jones v. United States,
357 U.S. 493, 499 (1958).
2 Schmerber v. California, 384 U.S. 757 (1966).
3 Warden v. Hayden, 387 U.S. 294 (1967).
4 See Mincey v. Arizona, 437 U.S. 385,392-393 (1978), citing
Michigan v. Tyler, 436 U.S. 499,509-510 (1978). See also United
States v. Mayes, 670 F.2d 126 (9th Cir. 1982).
5 Maryland v. Buie, 494 U.S. 325 (1990).
6 See, e.g., United States v. Miles, 889 F.2d 382, 383 (2d Cir.
1989) (per curiam).
7 See Hoffa v. United States, 385 U.S. 293, 310 (1966). See also
United States v. Tobin, infra.
8 Miles, 889 F.2d at 383 (quoting United States v. Montiell, 526
F.2d 1008, 1010 n. 1 (2d Cir. 1975)).
9 889 F.2d at 383 (quoting United States v. Cattouse, 846 F.2d
144 (2d Cir. 1988), cert. denied, 109 S. Ct. 316 (1988)), citing
Cardwell v. Lewis, 417 U.S. 583, 595-596 (1974) (plurality
opinion). See also United States v. McEachin, 670 F.2d 1139, 1145
(D.C. Cir. 1981); United States v. Webster, 750 F.2d 307 (5th
Cir. 1984), cert. denied sub nom., 471 U.S. 1106 (1985); United
States v. Hultgren, 713 F.2d 79, 88 (5th Cir. 1983), citing
United States v. Mitchell, 538 F.2d 1230, 1233 (5th Cir. 1976)
(en banc), cert. denied, 430 U.S. 945 (1977). 
10 See, e.g., United States v. Hultgren, 713 F.2d 79, 87 (5th
Cir. 1983).
11 700 F.2d 944 (5th Cir.1983).
12 United States v. Thompson, 720 F.2d 385 (5th Cir. 1983).
13 846 F.2d 1439 (D.C. Cir. 1988), cert. denied, 488 U.S. 858
(1988).
14 Preparation of the affidavit in support of the search warrant
was delayed because the officer preparing it and other officers
at headquarters became preoccupied by a tragic shooting of other
unit officers in another part of the city. 846 F.2d at 1443 n.3.
15 See also Minnesota v. Alyon, 459 N.W.2d 325, 330 (Minn. 1990),
cert. denied, 498 U.S. 1049 (1991).
16 906 F.2d 1278 (8th Cir. 1990).
17 Id. at 1284.
18 Rule 41(c)(2) of the Federal Rules of Criminal Procedure
provides for telephonic search warrants in circumstances where it
is reasonable to dispense with a written affidavit. 
19 51 F.3d 495 (5th Cir. 1995), cert. denied, 116 S.Ct. 220
(1995). 
20 United States v. Rosselli, 506 F.2d 627,630 (7th Cir. 1974).
In Rosselli, federal agents knocked on the suspect's door and
said: "It's the police, we want to talk to you." The agents then
heard the door chain being engaged, scuffling of feet, someone
running to the rear of the apartment, and a voice saying, "Don't
open the door for anybody." The agents then kicked down the door
and arrested the suspect. Marijuana was found in plain view and
seized. The court ruled that the agents did not knock on the door
as a contrivance to create the exigency, and that it was proper
for the agents to pursue their investigation by seeking voluntary
cooperation. Despite these findings, the court still ruled that
the emergency that arose from the knock on the door was
foreseeable, and therefore, the emergency was impermissibly
created by the agents.
21 916 F.2d 766 (2d Cir. 1990) (en banc), cert. denied, 111 S.
Ct. 1071 (1991).


22 See also Pennsylvania v. Govens, 632 A.2d 1316 (Pa.Super.
1993), appeal denied, 652 A. 2d 1321 (Pa. 1994) (police acted
lawfully when knocking on a door and announcing "police" within
15 or 20 minutes of an undercover purchase of crack cocaine. They
entered the apartment after hearing scuffling and moving about).
But see Pennsylvania v. Peterson, 596 A.2d 173 (Pa. Super 1991)
aff'd, 636 A. 2d 615 (Pa. 1993) (police did not deliberately
create the exigency by putting perspiration reactive powder on a
bill passed through a slot in a door to purchase cocaine, even
though the police knew that it would become visible almost
immediately. This exigency required the police to immediately
knock on the door, announce themselves, and ultimately break down
the door). 
23 Horton v. California, 110 S. Ct. 2301 (1990).
24 Id. at 2309. See also Whren v. United States, ___ U.S. ___,
No. 95-5841, 1996 WL 305735 (U.S.) (1996), where a unanimous U.S.
Supreme Court reaffirmed its long-standing position of applying
an objective standard and "flatly dismissed the idea that an
ulterior motive might serve to strip the agents of their legal
justification." No. 95-5841 slip op. at 6, citing United States
v. Villamonte-Marquez, 462 U.S. 579, 584 n. 3 (1983).
25 916 F.2d at 772.
26 Id. at 772.
27 Id. at 772-73. 
28 965 F.2d 1248 (3d Cir. 1992).
29 436 U.S. 128 (1978).


30 965 F. 2d 1254 (quoting Scott v. United States, 436 U.S. 128,
136 (1978)). The U.S. Supreme Court consistently has ruled that
in determining whether there has been a fourth amendment
violation, the facts must be viewed by an objective standard,
without regard to the subjective intentions of the officer. That
is, "...would the facts available to the officer at the moment of
the seizure or the search 'warrant a man of reasonable caution in
the belief' that the action taken was appropriate?" Terry v.
Ohio, 392 U.S. 1, 22 (1968), citing Carroll v. United States, 267
U.S. 132 (1989).
31 965 F.2d at 1255 (quoting United States v. McDonald, 916 F.2d
766, 771 (2d Cir. 1990), cert. denied, 111 S. Ct. 1071 (1991)).
32 923 F.2d 1506 (11th Cir. 1991) (en banc), cert. denied, 502
U.S. 907 (1991).
33 Id. at 1508 n. 1.
34 Id. at 1511 (quoting Davis v. United States, 327 F.2d 301, 303
(9th Cir. 1964)).