A sensible emergency doctrine.

In Brigham City v. Stuart, (1) the Supreme Court dealt with a question that it had never directly addressed before, even though earlier opinions implied what the answer would be. (2) The question: Under what circumstances may the police enter a dwelling to prevent injury to the occupants or stop an ongoing crime?

In Stuart, the Brigham City, Utah, police responded to a "loud party" complaint at 3 a.m. When they arrived, they heard shouting from the house in question and found juveniles drinking beer in the backyard. On entering the yard, they saw--through a screen door and windows--a fracas. Four adults were attempting to restrain a juvenile who broke free and struck one of the adults in the face, drawing blood. Nobody responded when the police opened the screen door and announced their presence, and they entered the premises.

The adults were charged with contributing to the delinquency of a minor, disorderly conduct, and intoxication. The police seized evidence of the crimes, though neither the Supreme Court nor the Utah high court say what it was. The trial court granted a motion to suppress that evidence, which was upheld twice on appeal in Utah.

Applying the emergency-aid doctrine, the state supreme court concluded that the injury the police witnessed was not sufficiently serious to justify warrantless entry into the home. Under the doctrine, a warrantless entry is justified if three criteria are met:

* police have an objectively reason able basis to believe that an emergency exists and there is an immediate need for their assistance for the protection of life

* the search is not primarily motivated by intent to arrest and seize evidence

* there is some reasonable basis to associate the emergency with the area or place to be searched. (4)

The state supreme court also found that the fight did not qualify as an exception to the warrant requirement under the exigent circumstances doctrine, which holds that "a reasonable person must believe that the entry was necessary to prevent physical harm to the officers or other persons." (5)

"If all that were required to authorize a warrantless entry into a home was probable cause that an assault of any severity whatsoever had occurred within the dwelling," the court said, "the exigent-circumstance component of the doctrine would disappear, subsumed within the probable-cause requirement." (6) The court further reasoned that the police could have shouted more loudly while still outside, making warrantless entry unnecessary.

This reasoning is defective for several reasons. First, Utah's severely constrained emergency-aid doctrine seems to be completely subsumed by its exigent-circumstances doctrine, which allows warrantless entry for lesser emergencies, regardless of police intent. Second, the state court doesn't seem to realize that the exigent circumstances doctrine, as it is traditionally understood, is an exception to the warrant requirement, not the probable-cause requirement. (7)

Thus, the existence of probable cause of an assault does not "subsume" the exigent-circumstances doctrine; rather, it satisfies it, assuming the assault is a crime. Finally, and most obviously, whatever the cited justification, the police entry seemed reasonable under the circumstances in this case.

Faced with this convoluted reasoning, as well as its own recent confusion about emergency entries in Georgia v. Randolph, (8) the U.S. Supreme Court tried to straighten things out. It was generally successful.

In a unanimous opinion by Chief Justice John Roberts, the Court upheld the entry in this case:

   [T]he officers had an objectively reasonable
   basis for believing both that the injured
   adult might need help and that the violence
   in the kitchen was just beginning. Nothing
   in the Fourth Amendment required them
   to wait until another blow rendered someone
   unconscious or semiconscious or worse
   before entering. The role of a peace officer
   includes preventing violence and restoring
   order, not simply rendering first aid to
   casualties.... (9)

Moreover, the police announcement of their presence first at, then inside, the screen door satisfied the "knock and announce" requirements. "[O]nce the announcement was made, the officers were free to enter; it would serve no purpose to require them to stand dumbly at the door awaiting a response while those within brawled on, oblivious to their presence," Roberts wrote. (10)

The Court further rejected the contention that for an emergency-aid entry to be justified, the officers may not be "primarily motivated by an intent to arrest and seize evidence." (11) The Court cited a litany of cases holding that police intent is irrelevant "as long as the circumstances, viewed objectively, justify [the] action." (12) The Court continued: "It therefore does not matter here--even if their subjective motives could be so neatly unraveled--whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence." (13)

The Court is certainly correct that if police officers have an objectively reasonable basis for believing that there is danger in a house or other building, they are justified in entering to dispel that danger. Neither probable cause nor a search warrant should be required. Moreover, if they have an honest belief there is danger, it doesn't matter that their primary motive maybe to arrestor gather evidence. In this case, the police had both probable cause to enter to arrest and an objective reason to believe that entry was necessary to prevent harm.

But none of this should be read to exclude the unusual case where the police know that there is no danger but recognize that a reasonable person might think that there is. Suppose two officers hear a scream from a nearby apartment and hear someone say "Here's Johnny" in a menacing voice. The first officer says, "Sounds like trouble, we better get in there." The second officer says, "No, you dummy. That's Jack Nicholson in The Shining. It's playing on TV."

The police should not enter the apartment in this situation because, although a reasonable person might think this is a real emergency, these officers do not. They can't have a "reasonable basis for believing" in an emergency if they lack the necessary belief.

Probable cause preserved

An important question after this ruling is what it might do to the exigent circumstances doctrine in general. Whether emergency aid is considered to be a subpart of exigent circumstances or a separate doctrine, it is a special situation.

As noted above, when the police are in hot pursuit of a suspect or fear that evidence is about to be destroyed, they must nevertheless have probable cause before they can make a warrantless entry into a building to apprehend the suspect or preserve evidence. (14) That is, they must have probable cause to believe that the person they are seeking is a criminal, is within the premises, and will escape if they don't enter immediately; or, in the case of evidence, they must have probable cause to believe that there is evidence of a crime inside and that it will be lost if they do not enter immediately. By contrast, Stuart holds that only a reasonable belief is required when police or citizen safety is at issue.

In an amicus brief, the United States argued that reasonable belief in this situation is the same thing as probable cause is to crime detection: "One way to conceptualize the emergency-aid situation is that the basic requirement that the police have an objectively reasonable belief--i.e., probable cause--does not change, but the object of the probable cause does change. Rather than requiring an objectively reasonable basis for an officer to believe a crime has been or is about to occur, the officer needs an objectively reasonable basis to believe that an emergency need for assistance exists." (15)

While Illinois v. Gates (16) watered down the concept of probable cause, I have never understood its test--a "substantial basis" for a "fair probability" that evidence would be found--to require merely an objectively reasonable belief. (Instead, that is the lesser standard that Terry v. Ohio required for stops and frisks. (17)) The Court was right to use the lesser standard here. After all, when lives (and limbs) are at stake, a reasonable belief that someone might be in danger is sufficient to justify entry.

But the Court was right not to accept the government's invitation to weaken the probable cause standard to this level. As I read Stuart, a lesser standard is required for emergency entry than for a warrant or for an exigent-circumstance entry to catch a fleeing felon or to preserve evidence.

Thus, while police purpose doesn't matter as long as officers have a "reasonable basis for believing" that there is danger of injury to people or property, courts must take care not to abandon the probable-cause requirement when the police fear that a suspect will get away or evidence may be destroyed.

It is helpful to recall that in Welsh v. Wisconsin, the Court struck down a warrantless entry, even though it was based on probable cause, when the "emergency" was that a drunk-driving suspect's blood-alcohol level would dissipate if the police had to wait for a warrant. (18) The Court found that the crime was not serious enough to justify a warrantless entry to secure evidence, even when it was based on probable cause.

Stuart should not be read as an all-purpose exception to both the probable-cause and warrant requirements for every type of "emergency"--it is limited to physical injury to people or perhaps to stop an ongoing property crime. The fact that evidence might be lost or a suspect might get away is not an emergency sufficient, by itself, to dispense with the probable-cause requirement.

Notes

(1.) 126 S. Ct. 1943 (2006).

(2.) E.g., Mincey v. Arizona, 437 U.S. 385 (1978) (entry to investigate a murder); Michigan v. Tyler, 436 U.S. 499 (1978) (entry to fight a fire).

(3.) See Brigham City v. Stuart, 122 P.3d 506 (Utah 2005).

(4.) Id. at 512-13.

(5.) Id. at 514.

(6.) Id. at 515.

(7.) See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE [section] 3.6 (4th ed. 2004).

(8.) For a discussion of the Court's opinion, see Craig M. Bradley, The Case of the Uncooperative Husband, TRIAL, June 2006, at 68.

(9.) Stuart, 126 S. Ct. 1943, 1949.

(10.) Id.

(11.) Id. at 1948.

(12.) Id. (quoting Scott v. United States, 436 U.S. 128 (1978)) (emphasis in Stuart).

(13.) Id.

(14.) See, e.g., Mincey, 437 U.S. 385.

(15.) Brief for the United States as Amicus Curiae Supporting Petitioner, Stuart, 126 S. Ct.1943, at n.18, available at 2006 WL 448210 (Feb. 21, 2006).

(16.) 462 U.S. 213 (1983).

(17.) 392 U.S. 1 (1968).

(18.) 466 U.S. 740 (1984).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].