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Creating Exigent Circumstances

NCJ Number
FBI Law Enforcement Bulletin Volume: 65 Issue: 9 Dated: (September 1996) Pages: 25-32
E M Hendrie
Date Published
8 pages
This article discusses constitutional issues associated with warrantless searches when the police are involved in creating the exigent circumstances that make a warrantless search legal.
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 is presumed to be unreasonable. Yet it is not always feasible to obtain a warrant prior to conducting a search. Under specified exigent circumstances, an officer may legally search without a warrant. In such cases, the government must rebut the presumption that the search is unreasonable by establishing the existence of a legally permissible exigent circumstance. 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 create an exigency deliberately, regardless of a prior opportunity to obtain a warrant, so long as the police conduct was 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. 34 notes