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Creating exigent circumstances.

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 destroyed(2)

2) Hot pursuit of a suspect whom officers reasonably believe is in the area to be searched(3)

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.


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 officers, 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 impermissibly 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)


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.


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 F2d 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)).


Special Agent Hendrie, Drug Enforcement Administration, is a legal instructor at the FBI Academy.
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Title Annotation:warrantless entry
Author:Hendrie, Edward M.
Publication:The FBI Law Enforcement Bulletin
Date:Sep 1, 1996
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