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Warrantless entries to arrest: constitutional considerations.

It is constitutional for a police officer to arrest a suspect in a public place without a warrant if the officer has probable cause to believe the arresttee has committed a crime, regardless of whether that crime is a felony or a misdemeanor.(1) The common law rule, however, followed in many state and federal statutes, limits the authority of an officer to make a misdemeanor arrest without a warrant to circumstances when the suspect commits the misdemeanor in the officer's presence.(2)

It is not constitutionally required that an officer be faced with an emergency before making a public arrest without a warrant.(3) Arresting a person in public is one thing, entering the home to make the arrest is quite another. When an officer enters a subject's home and arrests that subject, not only has the officer seized the subject, but by entering the home, the officer also has conducted a Fourth Amendment search of the home. While it is not presumed that a public arrest without an arrest warrant is unreasonable, it is presumed that a search conducted without a search warrant is unreasonable.(4) Although an arrest warrant is a seizure warrant and not a search warrant, the U.S. Supreme Court has ruled that an arrest warrant carries with it the implicit authority to enter the residence of the person named in the warrant to search for that individual, provided that there is at least probable cause to believe that the individual is present in the home.(5) When a person named in an arrest warrant is believed to be in a third party's home, however, an officer must obtain a search warrant before entering, unless there is an emergency or the resident gives consent to search. An arrest warrant alone will not suffice.(6)

The presumption of unreasonableness for searches conducted without a warrant can be rebutted through one of the exceptions to the warrant requirement. A warrantless intrusion into a residence is constitutionally permissible if the resident gives consent or there are exigent circumstances. Courts permit police officers to make warrantless emergency entries to arrest suspects when police have reason to believe that a suspect is in the area to be entered and

1) the suspect will escape if the police do not immediately enter;

2) the suspect poses a danger to officers or others;

3) the suspect may destroy evidence; or

4) the officers are in hot pursuit of that suspect.

The primary reason that the courts allow warrantless entries in such exigent circumstances is simply that the police do not have time to obtain a search warrant. Some courts would consider whether a telephonic search warrant was available to officers when determining if there was an emergency justifying a warrantless entry. Obtaining a search warrant over the telephone expedites the warrant review process. Consequently, a telephonic search warrant is obtained much sooner than if the officer had to personally appear before a magistrate with a written affidavit. If a court determines that the officers had time to obtain a telephonic search warrant but did not do so before entering a building, then the court may rule that there was not, in fact, an emergency that necessitated the warrantless entry.(7) This article is limited to a discussion of those emergencies that would justify police entering a residence without a warrant to arrest a suspect.

Hot Pursuit Exception Requires Probable Cause

Police officers who are in hot pursuit of a criminal suspect are not required to stop in their tracks and seek a warrant before entering a residence into which the suspect has just fled. In order for police officers to make a warrantless entry under the hot pursuit exception, however, they must be hot on the trail of a suspect who is trying to flee, and the officers must have probable cause to believe that the suspect is inside the building to be searched. In Llaguno v. Mingey,(8) the full bench of the U.S. Court of Appeals for the Seventh Circuit ruled that a police determination of probable cause in an emergency is dependent to a great extent on the seriousness of the crime committed.

In Llaguno, two suspects committed two robberies, abducted a young girl, killed four people, and wounded three others, including one police officer. Police shot and captured one of the suspects after the getaway car crashed and rescued the girl unharmed. The other suspect fled on foot. The officers decided to go to the address on the car registration. The house was 2 miles from the crash site. Before going to the house, the officers drove to police headquarters to get a sledgehammer and a shotgun. The officers then went to the house and entered without a warrant. They arrested a suspect in the house who was found later to have had no involvement in the robbery. The officers were sued for, among other things, conducting an illegal search by entering the house without a warrant. The suspect who had fled from the crash scene was subsequently shot and killed elsewhere that night by other officers.

Despite the fact that the officers stopped in the midst of the chase and went back to police headquarters, the court still deemed that the officers were in hot pursuit of the killer.(9) The Llaguno court balanced the officers' interest in preventing escape or injury against the privacy interest of the resident and had little difficulty in finding that the officers were faced with an emergency. "The situation was an emergency in about as vivid a sense as can be imagined."(10) The court focused on the dangerousness of the circumstances. The greater the danger posed to the public, the more reason officers have for not waiting to obtain a warrant.

The court emphasized that an emergency alone is not enough; there also must be probable cause to believe the suspect is at the location to be searched. The court stated that probable cause is not a fixed point but occupies a zone somewhere between bare suspicion and virtual certainty. While the seriousness of the offense is an important factor when determining if there is an emergency, the Llaguno court also viewed it as an important consideration when determining if there is probable cause. The more serious the crime, the more latitude officers must be allowed when deciding probable cause. The address on the vehicle registration was considered sufficient for probable cause in Llaguno because the crimes were serious and the killer posed a clear and present danger.

The police in Llaguno had a bare minimum of probable cause; thin though it was, they still in fact had probable cause. In United States v. Winsor,(11) the full bench of the U.S. Court of Appeals for the Ninth Circuit disapproved of the police searching for a bank robber in all of the first floor rooms and some of the second floor rooms of a hotel where they had chased him. The officers finally located the bank robber after searching 15 to 25 rooms. The court found that, even though the officers were in hot pursuit of the bank robber, they only had a reasonable suspicion that the robber was in any of the rooms; they did not have the requisite probable cause.

Hot Pursuit Exception Requires a Police Chase

In order for police officers to enter a building without a warrant under the hot pursuit exception, the suspect must be fleeing from a crime. By definition, if the suspect is not trying to get away, police are not in hot pursuit. For example, in Johnson v. United States,(12) police officers smelled the odor of opium coming from an apartment. After the officers demanded entry, the defendant opened the door and the officers entered the apartment. The U.S. Supreme Court ruled that the officers were not in hot pursuit of the defendant because 1) she was not fleeing from the officers; 2) she was completely surrounded by the police before she knew of their presence; and 3) she made no attempt to escape.(13) Just because police officers are moving swiftly does not mean that they are in hot pursuit. In order for officers to be in hot pursuit of a suspect, they must be chasing a suspect who is trying to get away.

Although there must be some kind of chase in order for the police to make a warrantless entry under the hot pursuit exception, the chase is not required to be the classic hue and cry through the city streets. For instance, in United States v. Santana,(14) an undercover officer purchased heroin from a suspect who told the officer that her source of supply was "Mom Santana." The officers arrested the suspect and went to Santana's house to arrest her, as well. They saw Santana standing directly in the doorway of the house with a brown paper bag in her hand. The officers pulled up in front of the house, approached Santana, shouted "police," and displayed their identification. As the officers approached, Santana retreated into the vestibule of her house. The officers followed her through the open door and arrested her in the vestibule. They found the premarked drug-buy money in her possession and her bag was later determined to contain heroin.

The U.S. Supreme Court ruled that when Santana was standing in her doorway, she was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. The Court ruled that Santana could not thwart a lawful public arrest by retreating into the privacy of her home. The Court also held that even though the chase was over almost as soon as it started and did not involve a clamorous chase through the public streets, it was a hot pursuit nonetheless. In addition, the court noted that the officers reasonably believed that Santana could have taken steps to destroy evidence had they not immediately arrested her. Therefore, the warrantless entry of the house to arrest Santana was lawful. The chase in Santana lasted only seconds; but if a chase is relatively continuous, it could last for hours and still be considered hot pursuit.(15)

The officers in Santana chased the suspect from public view into the house. What if a subject leaves the scene of an offense and enters his home before the police are even called? Would the police be in hot pursuit if, after arriving at the scene, they go straight to the house and enter it in order to arrest the suspect? In Welsh v. Wisconsin,(16) a witness saw a car being driven erratically. The car eventually swerved off the road and stopped in an open field. The car did not collide with anything and nobody was injured. The driver walked a short distance from the car to his house. Police officers arrived at the car within minutes and checked the registration, which revealed that the car's owner lived within walking distance of the scene. The officers proceeded to the driver's home to find him lying naked in bed. The driver was placed under arrest for driving a motor vehicle while intoxicated in violation of Wisconsin law.

The state of Wisconsin contended that the warrantless search of the home was reasonable on three grounds: 1) the officers were in hot pursuit of the suspect; 2) the defendant posed a threat to public safety; and 3) there was an emergency need to ascertain the driver's blood-alcohol level.

The U.S. Supreme Court, however, ruled that "...the claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime."(17) In addition, the Court was not convinced that there was a threat to public safety because the defendant already had arrived home and had abandoned his car at the scene of the accident. Finally, the court stated that the defendant's right to be secure in his home from a warrantless, nighttime entry by police officers outweighed the state's interest in obtaining evidence of his blood-alcohol level before it dissipated. The state of Wisconsin had categorized drunk driving as a civil infraction, which indicated that the state had a lower interest in prosecuting those offenses than it had in prosecuting criminal offenses. The Court held that a warrantless home entry rarely should be sanctioned when only a minor offense has been committed.(18)

Hot Pursuit of a Fleeing Misdemeanant

The police officers in Welsh were not in hot pursuit. If officers are in hot pursuit of a suspect who has committed only a misdemeanor, would they be able to make a warrantless entry in order to arrest the suspect? Some courts allow officers to enter a home without a warrant if they are in hot pursuit of a fleeing misdemeanant.(19) For example, in Minnesota v. Paul,(20) the Supreme Court of Minnesota refused to make a bright-line rule prohibiting warrantless police entries into homes for offenses of less magnitude than a felony. The court permitted a warrantless home entry in a drunk driving case primarily because, unlike the officers in Welsh, the Paul officer was in hot pursuit of the suspect.

The Paul decision is further distinguishable from Welsh because the Paul court considered a violation of the Minnesota drunk driving statute a serious offense. The Minnesota statute in Paul provided for criminal penalties and not merely the civil penalties of the Wisconsin statute in Welsh. This led the Paul court to conclude that Minnesota had a greater interest in preserving evidence of the suspect's blood alcohol level than did Wisconsin in the Welsh case.

Other courts prohibit warrantless hot pursuit entries for misdemeanors unless there is an additional emergency. For example, In Idaho v. Wren,(21) the Court of Appeals of Idaho ruled in a disturbing the peace case that it is not permissible for the police to make a warrantless entry if the sole reason for their entry is that they are in hot pursuit. The police, in addition, must be faced with at least one other recognized emergency before they may make a warrantless entry. A fleeing nondangerous misdemeanant would seldom present any additional emergencies. Consequently, a court that requires an additional emergency to augment the exigency of hot pursuit rarely would allow police to make a warrantless entry to arrest a suspect for a nondangerous misdemeanor.(22)

Warrantless Entries When Officers Not in Hot Pursuit

The Welsh decision involved what the Supreme Court characterized as a minor offense. In an armed robbery case involving pertinent search facts analogous to those in Welsh, the Supreme Court found that an armed robbery was sufficiently serious to allow police to enter a residence without a warrant. The Supreme Court decision in Warden v. Hayden(23) did not involve a police chase through the streets; the Court nonetheless approved of the police, without a warrant, entering a robber's home.

In Hayden, the defendant committed an armed robbery of the Diamond Cab Company in Baltimore, Maryland. Two cab drivers followed the robber to a residence. One cab driver radioed the suspect's description and location to the company dispatcher, who then relayed that information to police. Within minutes, officers arrived at the house, knocked, and announced their presence. They entered the residence and spread out through the house in search of the robber, who was found in an upstairs bedroom feigning sleep.

In Hayden, the Supreme Court ruled that "...neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, 'the exigencies of the situation made that course imperative.'...The police were informed that an armed robbery had taken place and that the suspect had entered [the house] less than 5 minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons that he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others."(24)

Many courts view Hayden as a hot pursuit case? Yet, in United States v. Santana, the Supreme Court noted that the Hayden court did not even use the term "hot pursuit" in its opinion and concluded that the Hayden case did not involve hot pursuit in the sense that the term is normally understood.(26) The Santana court stated that the search in Hayden was justified under the general label of the "exigencies of the situation." The Santana court took the position that hot pursuit requires a police chase. In Hayden, there was no chase in the classic sense. Under Hayden, even though officers are not chasing a suspect and therefore cannot be said to be in hot pursuit, they still may be permitted to enter a suspect's residence without stopping to obtain a warrant if to delay entering might give the suspect an opportunity to escape or harm the police or public.(27)

When a case involves hot pursuit, the emergency is apparent; the police are hot on the heels of a suspect who is trying to elude police. However, when the basis for the emergency is not dependent upon the suspect's being hotly pursued, the courts must examine the situation more closely. In Dorman v. United States,(28) the full bench of the Court of Appeals for the District of Columbia set forth the following factors to consider when deciding if exigent circumstances exist in the absence of hot pursuit:

1) whether a grave or violent crime has occurred;

2) whether officers reasonably believe the suspect is armed;

3) whether there is a clear showing of probable cause that the suspect committed the crime;

4) whether officers have strong reason to believe that the suspect is in the premises being entered;

5) whether the suspect will escape if not apprehended swiftly; and

6) whether officers can enter the premises in a peaceful manner.

While not enumerated as one of the factors, the Dorman court indicated that whether the police entry is in the daytime or at night is important in calculating exigent circumstances.

In Dorman, the defendant and three armed accomplices robbed a clothing store at approximately 6 p.m. and stole money and clothing. The defendant picked out a blue sharkskin suit from the rack and made his getaway. The defendant's vanity was his undoing. He left his old pants in the changing room and wore the suit when he ran from the store. Police arrived at the scene, and between 7 and 7:45 p.m., a detective found the defendant's pants containing a monthly probation report showing the defendant's name and address. Three victims made a photographic identification of the defendant at 8:30 p.m. At 10:20 p.m., the officers entered the defendant's home without a warrant to arrest him. He was not there, but the officers located the stolen sharkskin suit in his closet.

The Dorman court found that the officers were not in hot pursuit of the suspect because the entry into the home came over 4 hours after the offense. The court, however, pointed out that the emergency the police faced was similar to hot pursuit. If the defendant discovered that he had left his probation papers behind, he would have realized that the police soon would identify him as the perpetrator. Any further delay by the officers in entering his residence might have provided him with an opportunity to escape. Entry without a warrant was permitted to prevent that escape.

While some courts have followed the Dorman approach,(29) other courts have rejected the Dorman checklist. For example, in United States v. Acevedo,(30) the court stated that the limitless array of potential facts that officers could face caution against the application of the Dorman checklist. The court considered Dorman as only a guide in determining the balance of the resident's privacy interest against the police interest in preventing escape, injury, or destruction of evidence. In addition, in Llaguno v. Mingey, the court followed the Acevedo precedent and argued against the rigid application of the Dorman factors. The Llaguno court pointed out that the issue in a warrantless entry case is simply whether the police were unreasonable in not obtaining a warrant under the circumstances that they were faced with at the time. In fact, in Welsh v. Wisconsin, the Supreme Court expressly refused to approve of all of the factors listed in Dorman and simply cited Dorman as precedent that the gravity of an offense is the principal factor to be weighed when determining whether the police are faced with an emergency. Even those courts that apply the Dorman checklist do so with a degree of elasticity. For example, the full bench of the U.S. Court of Appeals for the Second Circuit in United States v. McDonald(31) pointed out that the Dorman factors are not intended as an exhaustive canon, but merely represent a sampling of facts to be considered when deciding whether a sufficient emergency exists to excuse obtaining a warrant.(32) The court emphasized that in some circumstances, the presence of a solitary factor may be enough to establish an emergency.

The McDonald court upheld an emergency entry by government agents into an apartment that was the site of an illegal retail drug operation. Shortly before 10 p.m. on September 8, 1988, an undercover agent with the New York Drug Enforcement Task Force 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 9 mm 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. There were four other men in the apartment. The agent bought a small amount of marijuana and left the building.

Shortly thereafter, the agent returned to the apartment with reinforcements and knocked on the door. As soon as the agents identified themselves, they heard the sound of scuffling feet and received simultaneous 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 enter the apartment. The agents arrested the suspects and found large quantities of cocaine and marijuana along with two loaded weapons, drug paraphernalia, drug packaging materials, and several thousand dollars in cash.

The McDonald court applied the Dorman factors and ruled that the agents were faced with an emergency as soon as the undercover agent made the drug purchase.

First, the ongoing sale and distribution of narcotics constituted a grave offense. Second, the defendant and at least one of his associates were armed with loaded, semiautomatic weapons. Third, the law enforcement agents had not only probable cause to suspect that a crime had been perpetrated but firsthand knowledge that ongoing crimes were transpiring. Fourth, the agents further knew that the defendant and his associates were in the apartment. Fifth, the likelihood that a suspect might escape if not swiftly apprehended was confirmed by the fact that the man who actually made the sale to Agent Agee had apparently escaped during the 10-minute interval that elapsed after the controlled purchase and before the agents entered the apartment. Sixth, the agents acted in accordance with the law and first attempted to effect a peaceful entry by knocking and announcing themselves.(33)

The court listed two other considerations in addition to the Dorman factors as relevant to its decision. First, "...the volatile mix of drug sales, loaded weapons and likely drug abuse presented a clear and immediate danger to the law enforcement agents and the public at large....In addition,...the agents were confronted by an urgent need to prevent the possible loss of evidence...."(34)

The defendant argued that the agents impermissibly created the emergency by knocking on the door and announcing their presence. The court, however, found that the emergency arose before the agents knocked on the door; it originated at the point that the agent purchased the drugs. The court further stated that, even if the exigency had not existed when the agent made the purchase, because the agents acted lawfully by knocking on the door and announcing their presence,(35) they did not impermissibly create the emergency.(36)

The McDonald court interpreted the Fourth Amendment as establishing an objective standard of reasonableness and the subjective state of mind of the agents was immaterial. It was irrelevant whether the agents intended to create the exigency. The court thought it was not significant that the agents brought along a battering ram when approaching the door. The fact that the agents fully expected the occupants to attempt an escape or destroy evidence did not render unlawful the otherwise lawful acts of knocking on the door and identifying themselves.

The court held that "...when law enforcement agents act in an entirely lawful manner, they do not inpermissibly create exigent circumstances. Law enforcement agents are required to be innocent but not naive."(37)

The defendant also argued that narcotics-related crimes so frequently involve exigent circumstances that the exception to the warrant requirement threatens to become the rule. The court responded that, "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."(38)

Conclusion

If police officers are in hot pursuit of a criminal suspect and chase that suspect to a house, most courts permit the officers to follow that suspect into the house to apprehend him. It is not required that the officers stop and obtain a warrant before entering the house; there is an emergency - they are in hot pursuit. If, on the other hand, the police are not hot on the trail of a suspect, they may not enter the house under the hot pursuit exception. The officers could still enter the house without a warrant, however, if they have reason to believe that the suspect will escape or poses a threat of destroying evidence or harming the police or the public.

Endnotes

1 See Street v. Surdyka. 492 F.2d 368, 37172 (4th Cir. 1974); Minnesota v. Seefeldt, 292 N.W. 2d 558 (Minn. 1980).

2 E.g., 21 U.S.C. [section]878.

3 United States v. Watson, 423 U.S. 411 (1976).

4 Katz v. United States, 389 U.S. 347, 357 (1967).

5 Payton v. New York, 445 U.S. 573, 603 (1980).

6 Steagald v. United States, 451 U.S. 204, 215-16 (1981).

7 E.g., United States v. Patino, 830 F.2d 1413, 1416-18 (7th Cir. 1987) (entry of a third party's home without a search warrant to arrest a suspect was not justified as an emergency exception where the federal agents had time before the entry to obtain a telephonic search warrant).

8 763 F.2d 1560 (7th Cir. 1985) (en banc).

9 Id. at 1567. See also Reardon v. Wroan, 811 F.2d 1025, 1029 (7th Cir. 1987), which described the police in Llaguno as being in hot pursuit of the suspects.

10 Id. at 1564.

11 846 F.2d 1569 (9th Cir. 1988) (en banc).

12 333 U.S. 10 (1948).

13 Id. at 16 n.7.

14 427 U.S. 38, 43 n.3 (1976).

15 E.g., United States v. Baldacchino, 762 F.2d 170. 176 (1st Cir. 1985) (pursuit of drug suspects from a plane crash site took three and a half hours before they were finally captured in their hotel room).

16 466 U.S. 740 (1984).

17 Id. at 753.

18 Id. at 750.

19 E.g., Greiner v. City of Champlin, 27 F.3d 1346, 1353-54 (8th Cir. 1994); Gaines v. James, 433 S.E.2d 572, 576-78 (W.Va. 1993), cert. denied, 114 S. Ct. 721 (1994).

20 548 N.W.2d 260, 265-68 (Minn. 1996).

21 768 P.2d 1351, 1356-58 (Idaho App. 1989).

22 See, e.g., New Jersey v. Bolte, 560 A.2d 644, 652-54 (N.J. 1989) (The court prohibited a warrantless hot pursuit entry because the offenses were minor and apparently noncriminal. Id. at 654 n.12.)

23 387 U.S. 294 (1967).

24 Id. at 298-99.

25 E.g., United States v. Ford, 56 F.3d 265, 271 (D.C. Cir. 1995); United States v. Winsor, 846 F.2d 1569, 1582 (9th Cir. 1987) (en banc). Even the U.S. Supreme Court, on occasion, has described Hayden as a hot pursuit case, despite the express statement to the contrary in Santana. See, e.g., Mincey v. Arizona, 437 U.S. 385, 394 (1978); Michigan v. Tyler, 436 U.S. 499, 509 (1978).

26 427 U.S. 38, 43 n.3.

27 See United States v. McNeal, 77 F.3d 938 (7th Cir. 1996).

28 435 F.2d 385 (D.C. Cir. 1970) (en banc).

29 See. e.g.. Salvador v. United States, 505 F.2d 1348, 1351 (8th Cir. 1974); United States v. Phillips, 497 F.2d 1131, 1135 (9th Cir. 1974): United States v. Shye, 492 F.2d 886, 891 (6th Cir. 1974); Vance v. North Carolina, 432 F.2d 984, 990 (4th Cir. 1970).

30 627 F.2d 68, 70 (7th Cir.), cert. denied, 449 U.S. 1021 (1980).

31 916 F.2d 766 (2nd Cir. 1990) (en banc), cert. denied, 498 U.S. 1119 (1991).

32 See also United States v. Robinson, 533 F.2d 578, 584 (D.C. Cir.) (en banc), cert. denied, 423 U.S. 1000 (1976). In Robinson, the author of the Dorman decision did not require all of the factors when determining that there was an emergency allowing a warrantless search of a motor vehicle. The court did not decide the applicability of the motor vehicle exception.

33 916 F.2d at 770 (quoting Warden v. Hayden, 387 U.S. 294, 298 (1967), and McDonald v. United States, 335 U.S. 451, 456 (1948)).

34 Id. at 770. See also Minnesota v. Olson, 495 U.S. 91,100 (1990), wherein the U.S. Supreme Court cited with approval the Minnesota Supreme Court's position that in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered.

35 There is a split in the courts as to what constitutes impermissible creation of an emergency. Some courts look to whether the police deliberately created the exigency. E.g., United States v. Thompson, 700 F.2d 944 (5th Cir. 1983); United States v. Socey, 846 F.2d 1439 (D.C. Cir. 1988), cert. denied, 488 U.S. 858 (1988). 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, e.g., United States v. Duchi, 906 F.2d 1278 (8th Cir. 1990); United States v. Rico, 51 F.3d 495 (5th Cir. 1995). Still other courts look to whether the police acted lawfully, regardless of whether they deliberately intended to create the exigency, e,g., United States v. Acosta, 965 F.2d 1248 (3rd Cir. 1992); United States v. Tobin, 923 F.2d 1506 (11th Cir. 1991) (en banc), cert. denied. See also Edward M. Hendrie, "Creating Exigent Circumstances," FBI Law Enforcement Bulletin, September 1996, 25-32.

36 See also Pennsylvania v. Govens, 632 A.2d 1316 (Pa. Super. 1993) (The 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 shuffling and moving about.)

37 916 F.2d at 772.

38 Id. at 772-73.

Special Agent Hendrie, DEA, is a legal instructor at the FBI Academy.
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