Exigent/Emergency Searches & Community Caretaker

by H. Troy Nicks, J.D., Instructor, Central Virginia Criminal Justice Academy, Email: troy.nicks@lynchburgva.gov

Case law has developed the doctrines of exigent/emergency searches and community caretaker to analyze various police actions that implicate issues of 4th Amendment compliance. These two doctrines are similar and court opinions can be difficult to understand.

As pointed out by Prof. Call’s two previous Bulletin articles on this subject matter[1], relatively few cases on these doctrines have been decided by the U.S. Supreme Court and the 4th federal Circuit Court of Appeals in recent decades and fewer still by the Virginia Supreme Court. The Virginia Court of Appeals, on the other hand, has issued almost a dozen opinions in the past decade dealing with these two doctrines.

This Article will summarize the two most recent cases of the U.S. Supreme Court and Virginia Courts dealing with these two doctrines, as they apply to nonconsensual, warrantless police entry of homes and where probable cause does not exist regarding specified crimes.

Ryburn v. Huff

U.S. Supreme Court, 2012[2]

Officers in Burbank, California, learned from a high school principal that a student named Vincent was rumored to have threatened to “shoot up” the school. The officers further learned that Vincent was frequently bullied and had been absent from school for two days. A classmate believed Vincent was capable of carrying out his threats. Based on their training on school violence, the officers were aware that this information reflected common characteristics of school shooters.

The officers proceeded to Vincent’s home and knocked several times, announcing their presence as police. Receiving no response, a sergeant on scene called the home phone. The officers could hear the phone ringing inside, but again no response. The sergeant then called the mother’s cell phone and she answered. After being informed that police were at the door and confirming that she and Vincent were inside, she ended the call.

A few minutes later, the mother and Vincent came outside to the front steps. An officer stated they were there because of information that Vincent had made threats involving the school. Vincent responded, “I can’t believe you’re here for that.” The mother then refused the sergeant’s request to continue the discussion inside. She also didn’t ask for more information about the purpose of the officers’ visit. Believing that the mother’s conduct was “extremely unusual” for a parent in this situation, the sergeant then asked the mother if there were guns in the house. The mother immediately turned around and ran into the house. Fearing for the safety of the officers and family members, the sergeant followed the mother inside. Vincent and three more officers also went inside.

After entering, the officers, Vincent and his mother remained in the living room and were joined by Vincent’s father. After an argumentative discussion with Vincent and his father, the officers determined that the rumor about Vincent was false and they left. The officers had been inside the home for five to ten minutes, and they conducted no further searches.

Vincent’s family later brought a civil rights lawsuit[3} against the officers involved, alleging a 4th Amendment violation based on the warrantless entry of their home. The trial court entered judgment in favor of the officers, finding that under the circumstances the officers had a reasonable belief that there could be weapons inside the home that placed the officers and family members in danger and further finding that the officers were entitled to qualified immunity because there had been no 4^th Amendment violation.

The family appealed that decision to the 9th Circuit Court of Appeals, a panel of which reversed the trial court grant of immunity to the sergeant and the other lead officer. The panel majority reasoned that the circumstances did not support a reasonable belief that the officers or family members were in serious and imminent danger. The dissenting judge complained that the majority opinion had decided the case on its “sanitized” version of the facts which disregarded the trial court’s specific findings of fact regarding the mother’s somewhat alarming behavior. The judge stated that if the trial court’s resolution of the evidence was given due credit, as it should have been under appellate procedure, then the officers’ actions were supported by a reasonable belief that guns were present in the house and that an entry was necessary to ensure the safety of the officers and family.

The officers then appealed to the U.S. Supreme Court, which in a brief per curiam opinion reversed the 9th Circuit’s decision and found in favor of the officers. Citing its own precedents[4], the high Court stated that none of its decisions had found a 4th Amendment violation  under facts “even roughly comparable” to those in this case. The Court further stated that its guidance supported these officers’ objectively reasonable belief that there was an imminent threat of violence in the situation confronting them. The Court quoted at length the trial court’s findings and the dissenting Circuit judge’s analysis, emphasizing the threat of school violence coupled with the mother’s odd behavior as supporting the officers’ belief that there was danger from firearms inside the house.

The Court then dissected the 9th Circuit panel majority’s analysis, first observing that the dissenting judge was correct in observing that the majority improperly revised the trial judge’s findings to suit its own view of the case that styled the incident as one where citizens were merely exercising their rights in dealing with police. The Court countered that view with its own notion that lawful conduct may indeed portend imminent violence, depending on the manner in which circumstances evolve. Next, the Court criticized the panel for viewing each element of the incident in isolation, with little regard for the overall “alarming picture”. The Court then concluded with a lengthy paragraph that cautioned judges against applying “the 20/20 vision of hindsight” to “second-guess” an officer on scene, who must make “split-second judgments – in circumstances that are tense, uncertain and rapidly evolving”, quoting its decision in  Graham v. Connor [5].

The Court concluded by ordering judgment in favor of the officers.

Despite the urge to applaud this decision as a resounding pro-police endorsement, it should not be read as a carte blanche for police investigating threats of school violence. The officers here proceeded in a measured, professional manner – interviewing school staff and students about the rumors involving Vincent; trying several methods of obtaining consensual contact with family; entering the home only after the mother’s alarming behavior; restricting their location, actions and time inside the home; and quickly resolving the rumors as unfounded.

Although this case ended favorably for the officers concerned, it should be viewed as a reminder that even considering current pressures on law enforcement to be aggressively proactive regarding indicators of school violence, the Courts nevertheless continue to require that police actions impacting citizens’ rights comport with an objective standard of reasonableness.

Ross v. Commonwealth

Virginia Court of Appeals [6]

The defendant-father Ross had filed a petition in Juvenile & Domestic Relations District Court seeking additional visitation with his daughter, the mother having custody. The J&DR Court ordered that the Department of Social Services (DSS) provide the Court with a home study. The order authorized an unannounced DSS visit to Ross’ home but did not authorize a non-consensual home entry.

Prior to the home visit, the DSS worker learned that Ross was a convicted felon, was suspected of distributing marijuana and of violence against women, and was depicted holding a rifle in a photo of him and his child. The DSS worker provided this information to the police, along with the workers’ belief that children might be present in Ross’ home, and requested police backup during the home visit.[7]

When the DSS worker arrived at Ross’ home for the visit, an officer observed from an unmarked car. The DSS worker and Ross engaged in conversation in the front yard. According to the worker, Ross vigorously objected to the worker entering his home at that time. However, Ross did not threaten the worker or commit any offense.

The officer viewing that exchange described Ross as “flaring his arms around” and the officer called for a marked car to respond. When those additional officers arrived, they observed that Ross was “extremely nervous” and “very tense and expressionless” and his body appeared to become “rigid”. When the police car stopped, Ross ran into his house.

The officers then entered the house with drawn weapons and handcuffed Ross. He was not armed nor was there any indication that he was about to arm himself. On a protective sweep of the house, officers observed marijuana and firearms, and they used that information to obtain a search warrant authorizing the seizure of those items.

Ross was convicted of possession of a firearm by a convicted felon, and he appealed the trial court’s denial of his suppression motion that alleged an unlawful warrantless police entry of his home. The Commonwealth countered by arguing that the entry of the home by officers was justified under both the emergency search and community caretaker exceptions to the warrant requirement.

A panel of the Court of Appeals began its review of the case by reiterating high judicial authority for the 4th Amendment principle that “the privacy interest in one’s home has few equals” and that warrantless entries of homes are presumed to be unreasonable, but that certain exceptions to the warrant requirement for home entries have nevertheless been established by the courts.

The Court’s opinion then proceeds to discuss “exigent circumstances” as one such exception to the warrant requirement. This exception includes police home entries focusing on criminality that are justified provided that 1) police have probable cause for the search, and that 2) exigent circumstances justify the police proceeding without the delay entailed in seeking a search warrant.

The Court then uses the term “emergency exception” to encompass situations where police do not necessarily have probable cause linked to criminality to justify a home entry – but the entering officer must have a “reasonable basis” for believing a person’s health or personal safety is genuinely threatened. The Ryburn case discussed earlier in this Article, involving the threat posed by the possible presence of firearms coupled with a person’s odd, if not alarming, behavior, is cited by this Court as an example of the emergency exception.

The Commonwealth had argued that there was potential for violence against the DSS worker if he entered the home, but the Court dismissed that notion on the basis that the DSS worker had no authority to make a non-consensual entry and Ross had been adamant in denying consent for entry. Thus, the Court found that because there was no likelihood that the DSS worker would have entered the home, there was no basis for finding an imminent threat to the DSS worker or police.

The community caretaker doctrine, the opinion continues, likewise can relate to police protection of citizens’ well-being. In this case, that concern might be applied to the possibility of harm to any children inside the home. The Court, however, found no evidence suggesting a reasonable likelihood that children were present or, even if they were, that Ross intended to harm them.

Finding that the circumstances of the police entry of Ross’ home did not support a reasonable belief that there was a potential threat against anyone present at the time in question, the Court held that neither the emergency search nor community caretaker exceptions justified a warrantless entry. The Court then ruled that the trial court erred in denying Ross’ suppression motion and remanded the case to the trial court for further proceedings.[8]

Conclusion

It’s clear that Courts recognize the public interest in immediate police action when delays could have serious consequences. Such situations have challenged the Courts to define a coherent set of guidelines for these situations. The Ross case can be read to recognize three types of emergency-based warrantless police action – exigent circumstances, emergency search and community caretaker – and scenarios may invoke more than one of these categories. Domestic violence incidents, for example, could involve all three categories.

Regarding the fine line at which a reasonable belief of imminent violence is present or not, the facts of the Ryburn and Ross cases seem to be very similar. In the Ryburn case, the perceived threat was based on the possible presence of firearms and suspicion of past threats. The Ross case included known unlawful possession of firearms by a volatile character but no present threatening behavior.

Were the facts a wash between these two cases? Should the Courts’ decisions have been the same in each case? Should officers be expected to parse the situation this precisely under circumstances that are “tense, uncertain and rapidly evolving”?

In the aftermath of school shootings, a spasm of media and public hindsight frequently focuses on what was known before the event and why more was not done with that information. Is that what really separates these two cases – that the Supreme Court was not about to dampen police efforts to interdict a possible tragedy of national proportions, but the Virginia Court saw only a routine DSS visit?

[1} Virginia Police Legal Bulletin, Vol. 6, No. 1 (July 2001) and Vol. 7, No. 1 (August 2012).

[2] 556 U.S. 469.

[3] Title 42, U.S. Code §1983.

[4] Brigham City v. Stuart, 547 U.S. 398 (2006) and Mincey v. Arizona, 437 U.S. 385 (1978).

[5} 490 U.S. 386 (1989).

[6] 61 Va. App. 752.

[7] Prior to the incident in question, police had not sought a warrant for Ross’ arrest on the charge of possession of a firearm by a convicted felon. This may reflect their determination that available information at that time did not constitute probable cause to support issuance of a warrant.

[8] The Court noted that the appropriate scope of the trial court’s subsequent suppression order might result in sufficient admissible evidence remaining to permit the Commonwealth to retry the case.