Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, April 27, 2021

Reducing Exigencies and Rebuilding Trust

Exigent circumstances have appeared on the Supreme Court’s mind (and docket) frequently in recent months. After hearing arguments on the hot pursuit species of exigent circumstances in February’s Lange v. California (a case I blogged about here), the Court heard arguments concerning the so-called community caretaking exception to the warrant requirement in March’s Caniglia v. Strom. Caniglia gave the Justices plenty to chew on, including whether there is really a separate community caretaking exception or if warrantless entry into a home to check on a resident 's wellbeing is simply another species of exigent circumstances.

That question came into clear focus during Justice Breyer’s questioning of the petitioner’s attorney. Breyer struggled to define the bounds of a distinct community caretaking exception. Nonetheless, he believed some such exception must exist so that officers can respond to protect citizens’ wellbeing even if there is no emergency that requires action immediately.[1] Breyer worried that tying officers hands so they could only warrantlessly react to immediate threats would stop them from responding in slower-burning, yet equally dangerous, circumstances—such as an unattended baby crying in a home for hours.[2]

But limiting officer discretion to act warrantless to only scenarios where a response is required in seconds, rather than minutes, is appropriate in the modern world for two reasons. First, given the speed with which warrants can be obtained today, only traditional species of exigent circumstances—like rendering emergency aid, chasing a fleeing felon, or preventing the imminent destruction of evidence[3]—seem truly necessary.  As the Supreme Court has acknowledged, modern electronic warrant procedures allow officers to obtain a warrant in just a few minutes.[4] That is little help when officers must act in a matter of seconds. But the ready availability of warrants undermines arguments for many other categorical exceptions to the warrant requirement, perhaps including community caretaking, when time is less of a limiting factor.

Second, Breyer wrongly implies that officers will fear responding warrantlessly to a slow-burning, community-caretaking style “emergency.” Officers genuinely interested in protecting the community should not be afraid for two reasons. First, even if the officers’ instincts prove incorrect and no community safety threat was present inside the home, there is little chance they will face civil liability. The homeowner is unlikely to file a § 1983 suit given the minimal, if not nominal, damages involved. Even if the homeowner sues, current qualified immunity doctrine provides officers broad protection so long as their actions were not contrary to existing precedent. Second, the officer should hardly be concerned if evidence of a crime that they happen to find inside the home is excluded from a later trial. Such evidence would be an unexpected windfall for an officer genuinely interested in protecting the community from a slow-burning harm. Losing windfall evidence should not concern such well-meaning officers.

If the Court limits exigent circumstances doctrine to genuine emergencies, while at the same time curbing other categorical exceptions to the warrant requirement that seem antiquated in light of the rapid availability of warrants today, it will begin lowering the temperature in many officer-citizen interactions. Both officers and citizens can easily understand and justify a narrow exigent circumstances exception. Everyone sees the benefits of allowing officers to respond to genuine, immediate threats. And if officers have little discretion to act warrantlessly beyond those emergencies, citizens may be less wary of any interaction with officers. Counterintuitively, limiting any community caretaking exception to the warrant requirement may actually help officers care for the communities they police.

 

[1] Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.

[2] Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.

[3] Kentucky v. King, 563 U.S. 452, 460 (2011) (outlining these traditional species of exigent circumstances).

[4] “[P]olice can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge's signature to a warrant. Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes.” Missouri v. McNeely, 569 U.S. 141, 172–73 (2013) (citations and quotations omitted).

https://lawprofessors.typepad.com/appellate_advocacy/2021/04/reducing-exigencies-and-rebuilding-trust.html

Appellate Advocacy, Current Affairs, Oral Argument, United States Supreme Court | Permalink

Comments

Post a comment