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Exigent Circumstances: What They Are and How They Allow Police to Search and Seize Without a Warrant

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There are times when police officers in Texas can search without a search warrant; sometimes they don’t even have to knock on the door before entering your home.

Sitting in the comfort of your living room, you may assume you’re safe from intrusion by the police.  Surely they can’t barge into your private home, uninvited and unannounced, because this is America – where we have constitutional protections of privacy, right?  Well, no.  This is not always true.

Warrantless searches by the police happen all the time in Texas.  Legally, there are several exceptions to the constitutional requirement of the police getting a search warrant signed by a judge before attempting to search (and seize).

One of these exceptions is when the police on the scene decide the situation involves “exigent circumstances.”

Fourth Amendment: the General Rule that Police Have to Get a Search Warrant

The general rule for law enforcement is they must get a search warrant before they can search.  In fact, searches are presumed to be illegal and invalid if they are undertaken without a search warrant, unless the police can demonstrate the application of a specific, legally-recognized exception to that general rule.

As the Supreme Court of the United States explains:

‘‘[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable’ under the Fourth Amendment–subject only to a few specially established and well-delineated exceptions.”

Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), quoting in part Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

Courts Vigorously Protect Privacy Rights from Police Intrusion

Our rights to privacy, especially from the actions by the government, are protected not just by statute but by both the federal and state Bill of Rights.

The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In Texas, there is a similar constitutional provision found in Article 1, Section 9 of the Texas Bill of Rights, which states “[t]he people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.”

It is widely recognized in both Texas and federal jurisprudence that the paramount concern of these constitutional provisions is to protect the individual’s right to privacy and freedom from unreasonable intrusions by the government.  Why?

This is a constant concern when the reality is that a single police officer out on the job has the daily opportunity to overstep his police powers, disrespecting and disregarding a citizen’s basic rights.  It will be the officer in the field who makes the legal decision regarding his right to ignore the constitutional mandates for a search warrant.  All too often, these decisions are made in a hurry and in a flurry of emotions, and upon review they may not withstand legal scrutiny.

One excuse that police will use quite often to vindicate undertaking a search (and gathering evidence as a result in their resulting seizure) is that their actions come under the legal justification that there were “exigent circumstances” at the time the warrantless search was done.

What are Exigent Circumstances?

Sometimes, government lawyers as well as law enforcement will refer to exigent circumstances as the “emergency doctrine.”  It is a legal concept that applies in both state and federal prosecutions.

TCCP Article 14.50

In Texas, there is a statute that recognizes the emergency doctrine and exigent circumstances.  Article 14.50 of the Texas Code of Criminal Procedure states that the rights of a Texas police officer includes (emphasis added):

In each case enumerated where arrests may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all the measures which he might adopt in cases of arrest under warrant, except that an officer making an arrest without a warrant may not enter a residence to make the arrest unless: 

(1) a person who resides in the residence consents to the entry;  or

(2) exigent circumstances require that the officer making the arrest enter the residence without the consent of a resident or without a warrant.

However, neither Congress nor the Texas Legislature have passed legislation that defines exactly what “exigent circumstances” are or what we mean by the “emergency doctrine.”  Police officers cannot look in a code book and find the statutory recipe to “exigent circumstances” before they decide to breach your privacy and search without a warrant.

Of course, this lends itself to a great temptation for law enforcement to decide there’s an emergency when they are hot to enter a home and impatient about getting a search warrant.  The enticement of labelling a situation as “exigent circumstances” can run high.

Case By Case Determination of Exigent Circumstances

Whether or not the particular circumstances of a situation will meet the definition of “exigent circumstances” in either federal or state court has been left for judges to determine.

Accordingly, in each case where a defendant has been arrested based upon a warrantless search, it is vital for the criminal defense lawyer to research past case precedent in order to check whether or not the police had a right to search under this exception to the standard search warrant requirement.

Criminal defense attorneys must dive into the books and compare past judicial decisions with the present case, double checking the decision of law enforcement that they had a legal right to a warrantless search under the “emergency doctrine.”

Is there case law that supports the position of the police officer?   Has the prosecution met its burden of proving a valid exception to the constitutionally required search warrant?

Three Categories Justifying Warrantless Searches Because of Emergency Doctrine

When can the police legitimately conduct a warrantless search because of the emergency doctrine?  As explained by the Texas Court of Criminal Appeals, there are three categories of exigent circumstances that justify a warrantless intrusion by police officers:

1) Providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance;

2) Protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and

3) Preventing the destruction of evidence or contraband.

If the State does not adequately establish both probable cause and exigent circumstances, then a warrantless entry will not withstand judicial scrutiny.”

Case Law Examples of Exigent Circumstances

Here are some examples of established court opinions that provide examples of “exigent circumstances” that have allowed the police to enter and search without first getting a judge’s approval via a search warrant:

1.  Someone Is In Imminent Danger of Being Hurt or Killed

In Laney, the CCA explains first that the emergency doctrine and exigent circumstances are synonymous, and that “…the emergency doctrine applies when the police are acting, not in their “crime-fighting” role, but in their limited community caretaking role to “protect or preserve life or avoid serious injury.” Here, the CCA cites to Mincey v. Arizona, 437 U.S. 385, 390-95, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), where it was acceptable for police officers to undertake a warrantless search of an apartment once the bullets stopping ringing in a shoot-out between the police and the people inside that apartment.

Laney v. State, 117 S.W.3d 854, 858 (Tex. Crim. App. 2003).

2.  Evidence Is In Imminent Danger of Being Destroyed

In McNairy, the police officers’ warrantless search of a trailer home where drugs were found was deemed acceptable because of “exigent circumstances” after the prosecution showed that the officers on the scene had a reasonable belief the people inside that mobile home likely knew the police were right outside so “…the evidence seized at the trailer apparently could have been destroyed or removed in a matter of minutes.”

McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991), citing to United States v. Rubin, 474 F.2d 262 (3d Cir. 1973).

3.  Stopping a Fleeing Suspect

In Waugh, a warrantless search was found constitutionally valid based upon exigent circumstances after the suspect tried to flee into his home as the police officer pursued him.  When the suspect tried to push the door shut before the officer could reach him, it was held this constituted the criminal offense of “evading detention or arrest” defined in Texas Penal Code § 38.04(a).  The officer pushing that door back open and entering the dwelling was acceptable as a warrantless search because he was in “hot pursuit of a fleeing suspect,” citing to Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091 80 L.Ed.2d 732 (1984)United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

Waugh v. State, 51 S.W.3d 714, 718 (Tex. App. 2001).

Motion to Suppress Evidence Obtained During the Warrantless Search

From a criminal defense standpoint, anytime there has been a search and seizure (and arrest) after the police have decided to undertake a warrantless search, there is a red flag waving a warning that evidence may need to be suppressed.

A motion to suppress may be filed.  This can include not only the evidence taken during the search but additional evidence obtained in connection to it as “fruit of the poisonous tree.”

In Texas court, the defense can file for a motion to suppress the evidence under both the federal and state constitutions.  See, U.S. CONST. amends. IV and XIV and TEX.CONST. art. I, § 9.

While it is true that Texas state courts are independent bodies and not bound by the Fourth Amendment jurisprudence of the United States Supreme Court when they are interpreting analogous provisions of our Texas Constitution, the Texas judiciary will usually look to and follow the corresponding federal precedent.  See, e.g., Aitch v. State, 879 S.W.2d 167, 171-72 (Tex.App.-Houston [14th Dist.] 1994, pet’n ref’d).  Accordingly, the defense motion may argue precedent from both state and federal sources.

The defense motion itself is a challenge based upon the government’s violation of the defendant’s constitutional rights.  The issue focuses entirely upon the issue of whether or not the police officers violated the defendant’s constitutionally protected expectation of privacy by conducting a warrantless search.

Neither federal agents; Texas law enforcement; nor local police officers have the right to conduct a search and take evidence in violation of state and federal search and seizure privacy protections.  Legally, the burden of proof during the evidence suppression hearing is placed upon the government.

Once the objection is made in a defensive motion to suppress evidence, the prosecutor must come forward and convince the judge that the police officers were within a valid legal exception based upon exigent circumstances and the emergency doctrine.  If the AUSA or the ADA cannot meet that burden, then the defense motion to suppress must be granted.

Depending upon the amount of evidence this involves, the prosecution’s case will be weakened or destroyed.  A motion to dismiss the entire case may well follow a successful motion to suppress based upon a warrantless search.

Go here to read more on Motions to Suppress.

Were You Arrested Based Upon a Warrantless Search?

It is true that there are recognized exceptions to the need for a search warrant before the police can invade your privacy and enter your home.  It is also true that all too often, law enforcement on the scene will fall prey to the temptation to go ahead and enter your home (or car, etc.) in a warrantless search that does not meet constitutional scrutiny.

Many people have their rights trampled upon and are harmed with arrests on their criminal records because overly excited or neglectful police officers or law enforcement agents have undertaken an illegal and unconstitutional warrantless search.

Criminal defense lawyers across the state know all too well that the police do things all the time violation constitutional protections and legal rights.  Sometimes, the prosecutor will recognize this and decide not to prosecute.  Other times, the defense lawyer must move to suppress the evidence, with the judge confirming there has been a violation of laws and constitutional rights.

Anyone arrested in Texas after a warrantless search must understand the laws that exist to protect them and the importance of a zealous criminal defense in the event that you are arrested or charged, or your property is taken.

For more, read our discussions in:


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”



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