By Hendrie, Edward M.
The FBI Law Enforcement Bulletin , Vol. 65, No. 9
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.
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. …