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Attorney Question Of The Month

This month’s Attorney Question of the Month kicks off a new topic of discussion, on which we polled the Network’s Affiliated Attorneys. Our “ripped from the headlines” question must have touched a nerve, because the responses were numerous and the information in each very educational. This column starts the first of several on the following question:

Following the house-to-house searches law enforcement conducted after the Boston Marathon attack, a lot of Network members emailed to ask if they can deny police entry into a home or vehicle under emergency conditions. Absent a search warrant, does a citizen have a right to deny law enforcement entry into the home? How do you recommend that the average armed citizen invoke their rights if they wish to prevent a warrantless search of their premises?

Kevin McBride
McBride Law, PC
609 Deep Valley Dr. E, Ste. 200, Palos Verdes Peninsula, CA 90274
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The Fourth Amendment protects all US citizens against unlawful search and seizure. Absent “exigent circumstances,” homes (and to a somewhat lesser extent, vehicles) can only be searched with a warrant. In the 2011 case of Kentucky v. King, the US Supreme Court defined when exigent circumstances exist, which allow police to search your home even without a warrant. “Exigent circumstances” have been recognized in emergency situations, such as:
• The need to prevent imminent destruction of evidence.
• Emergency aid: “officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”

• Hot pursuit: “Officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.”

In addition, police may seize evidence in plain view if they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made.

None of the circumstances listed above justify the recent mass searches of homes by the Boston Police. No threat existed that evidence would be destroyed in any particular home. Emergency aid was not the objective of the searches; and none of the Boston officers was engaged in “hot pursuit.” Boston police would undoubtedly argue that catching a terrorist was an “emergency situation” that provided exigent circumstances for warrantless searches. But without probable cause to believe that a particular home or car was associated in some way, even a tenuous way, to the terrorist bombings, this argument flies in the face of the very reason for the Fourth Amendments’ protections. It isn’t enough for police to simply declare an “emergency” and thereafter conduct mass searches without warrants. This is the very behavior the Fourth Amendment was designed to prevent. For a longer discussion of the US Supreme Court’s decision in Kentucky v. King, and the law regarding exigent circumstances, see this blog article:

Kyle J. Bristow, Esq.
France Law Group
6545 W. Central Ave., Ste. 206, Toledo, OH 43617
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In light of police officers going house-to-house in New Orleans after Hurricane Katrina to seize firearms and the law enforcement officers going house-to-house in Boston in search of the terrorists who bombed the Boston Marathon, this question is very relevant.