The exigencies of the situation justified a warrantless entry to search for a gun and drugs. Included in the exigencies is the seriousness of the crime under investigation. The standard of exigencies for arrest should apply to entries to search, too. United States v. Schaffer, 286 Fed. Appx. 81 (4th Cir. 2008) (unpublished):
This Court has set forth five factors that district courts are to consider when deciding whether an exigency existed at the time a search commenced:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that police are on their trail; and (5) the ready destructibility of the contraband.
United States v. Mowatt, 513 F.3d 395, 399 (2008) (citation omitted). We have previously held that “arguably, these factors must be supplemented by the gravity of the underlying offense, a factor employed by the Supreme Court in the context of a warrantless arrest.” United States v. Owens, 848 F.2d 462, 470 n.4 (4th Cir. 1988).
It bears noting here that this list is inexhaustive and no single factor is controlling. See United States v. Reed, 935 F.2d 641, 642 (4th Cir. 1991) (“[T]here is no precise formula since emergency circumstances will vary from case to case and the inherent necessities of each situation must be scrutinized.”) Instead, exigencies must be judged in light of all of the relevant actors and from the totality of the circumstances known to the officer at the time of the warrantless intrusion.
. . .
Turning to the factors enumerated in Mowatt, inasmuch as it was reasonable for the officers to believe that an armed man was lurking around and may have already returned to his home, the first factor, the urgency factor, favors the Government’s argument concerning exigent circumstances. The second factor, concerning the officers’ reasonable belief that the contraband was about to be removed or destroyed, favors the Government to the extent that this factor is construed to refer to the officers’ reasonable belief that Schaffer might be in the house and he might flee. The third factor regarding the possibility of danger to police guarding the site also favors the Government. It was reasonable for them to enter the house based on the circumstances that they faced to determine if Schaffer was present and armed. Further, the fact that they entered the house with their guns drawn demonstrates their concern for not only their safety but also for Nancy Schaffer.
As to the fourth factor, there is no evidence in the record as to whether Mr. Schaffer was aware that the police were on his trail. There is also no evidence in the record as to the fifth factor, that the officers were concerned about the ready destructibility of the contraband. Thus, these two factors favor neither party. Concerning the gravity of the offense, here, the officers were confronted with a situation in which it is unchallenged that the officers had information that Mrs. Schaffer had reported that Mr. Schaffer “had held a gun to her head and threatened to kill her.” (Appellant’s Br. 2) (J.A. 36, 37). Thus, this factor favors the Government.
Comment: Whenever a sliding scale on the gravity of the crime is involved, the court must caution against producing “more slide than scale.” Anthony G. Amsterdam, Perspectives On The Fourth Amendment, 58 Minn. L. Rev. 349, 394 (1974).
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
