As previous "Point of Law" articles have discussed, there are four—and only four—legal justifications for entering private premises: (1) search or arrest warrant; (2) consent; (3) searchable condition of probation or parole; and (4) exigent circumstances (rescue/emergency aid; substantial property damage occurring; imminent destruction of evidence; preventing escape; fresh pursuit of a dangerous offender; and neutralizing an immediate threat to public/officer safety).
For several reasons, the preferred authority for entry is a judicial warrant. This is the method expressly contained in the Fourth Amendment. Evidence seized under a warrant is presumptively admissible, whereas warrantless searches and seizures are presumed unreasonable, with the burden on the prosecution to prove the evidence is admissible under a recognized exception. (Katz v. U.S.)
Warrants offer heightened protection against civil liability. (Messerschmidt v. Millender) Residents may be less likely to resist an entry and search authorized by a warrant, and a prosecutor may be more likely to file criminal charges where the critical evidence was seized under a warrant. Therefore, a prudent rule-of-thumb is to get a search warrant whenever possible.
But sometimes, waiting for a warrant may mean that occupants become aware of your presence and destroy the evidence before the warrant arrives. Recognizing this, the U.S. Supreme Court has said in a series of cases that under limited circumstances, law enforcement officers may make a warrantless, nonconsensual entry while other officers are applying to a magistrate for a search warrant. This is often called an "entry to secure."
A drug task force had Andres Segura and others under surveillance for several weeks and watched them make street drug sales while operating from Segura's apartment. Officers followed and arrested one customer, flipped him, and obtained sufficient PC for a search warrant. While one officer returned to the station to complete a search warrant affidavit and application, other officers went to Segura's apartment building. As Segura returned home, he was intercepted and escorted to his apartment. Officers entered without permission, finding four people inside.
All of the occupants were arrested and taken to DEA headquarters. Two agents remained inside Segura's apartment awaiting arrival of the search warrant. The warrant was issued and a search conducted, resulting in the seizure of three pounds of cocaine, $50,000 cash, and other evidence. Segura moved to suppress all of the evidence, arguing that the initial, warrantless entry by officers constituted an unlawful seizure of his apartment and all of its contents, and that this unlawfulness was not cured by subsequent issuance of the warrant.
The Supreme Court, finding no evidence of exigency, agreed that the initial nonconsensual entry was unlawful under the Fourth Amendment. Said the court, "An entry in the absence of exigent circumstances is illegal." But because none of the information in the affidavit of probable cause supporting the warrant came from the entry and occupation of the apartment, the warrant was an independent source of the evidence, so the evidence was admissible. The court said this:
"We hold that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought, is not itself an unreasonable seizure of either the dwelling or its contents." (Segura v. U.S.)
On a variation of the facts in Segura, narcotics officers in Massachusetts were surveilling Michael Murray and other suspects when they saw suspicious vehicle movements in and out of a warehouse. Drivers were stopped and found to be transporting marijuana. Agents then converged on the warehouse while an officer sought a search warrant. Before the warrant was issued, agents made entry and saw bales of marijuana. No one was present in the warehouse, so the agents left to await arrival of the warrant. Their observations inside were not included in the affidavit.
Once the warrant was obtained, officers re-entered the warehouse and recovered 270 bales of marijuana and other evidence, all of which the defendants moved to suppress based on illegality of the initial entry. The Supreme Court affirmed lower court rulings denying the suppression motions. The court held that its ruling in Segura controlled the situation, whether or not officers actually remained inside to secure, as long as neither the decision to seek a warrant nor the magistrate's finding of PC for the warrant was based on what the agents had seen following their warrantless entry. The court said this:
"This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the magistrate and affected his decision to issue the warrant." (Murray v. U.S.)
This passage indicates that it would not be good practice, when writing a search warrant affidavit, to include the fact that an entry to secure had already been made, or the observations of contraband or evidence that may have resulted from that entry. However, it is important that magistrates not be misled by omission, so the affiant-officer should inform the magistrate about the warrantless entry after the warrant has issued, and include this fact in reports.
In yet another twist on the "entry to secure" scenario, officers in Illinois prevented a resident from going inside his home while waiting for a search warrant to arrive, and the Supreme Court also approved this technique. Charles McArthur's wife called police and asked them to keep the peace while she removed her belongings from the mobile home she shared with him. Officers waited outside while Mrs. McArthur went inside and picked up her things. When she came out, she told an officer that her husband had "some dope under the couch." By this time, McArthur had also come outside and was standing on the porch.
While one officer went for a warrant, another stood by outside with McArthur, telling him that he could not go back inside unless the officer went with him (they both went inside briefly so McArthur could get cigarettes and make a phone call). Approximately two hours later, an officer arrived with a warrant. Officers found marijuana and paraphernalia under the couch. Although the Illinois courts ordered the evidence suppressed based on McArthur's "constructive eviction," the Supreme Court reversed.
The court said that where officers have PC to believe destructible evidence is inside and that occupants may remove or destroy it before a warrant can be obtained, it is reasonable for officers either to enter and secure the premises, or to prevent occupants from entering, until the warrant issues.
If the circumstances permit, it is best to obtain a search warrant before entering the suspect's premises, or before preventing anyone from going inside. However, where delay is reasonably likely to allow the imminent destruction or removal of evidence, residents may be temporarily prevented from entering or, if there are occupants already inside, officers may enter to secure the premises for a reasonable time while obtaining a warrant. Observations from this entry may not form the basis of the decision to seek a warrant, nor any part of the probable cause.
Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including "Investigative Constitutional Law."