Thursday, February 20, 2014
Claire Stamm has posted Defining the Destruction of Evidence Exigency Exception: Why Courts Should Adopt a Strict Probable Cause Standard in the Wake of Kentucky v. King (Mississippi Law Journal, Vol. 82, No. 7, 2013) on SSRN. Here is the abstract:
The Fourth Amendment exigency exception allows law enforcement to enter a building without a warrant due to an exigent circumstance. Exigent circumstances range from threats to public safety to the destruction of evidence. Post Kentucky v. King, courts can no longer consider the subjective intent of the officer to create or not create an exigency. Therefore, courts need a clear way to define a destruction of evidence exigency. This comment presents a double probable clause test to objectively and effectively define a destruction of evidence exigency. Since a destruction of evidence exigency falls under the broader category of an evidence gathering exigency, it does not offer a threat to public safety. Therefore, the quantum of suspicion for a destruction of evidence exigency should be higher to ensure the protection and privacy of the innocent and to ensure no abuse of the exigency.
The new test requires probable cause that drugs are present and probable cause plus articulable facts that drugs are in imminent danger of destruction.