{"id":2233,"date":"2008-12-24T10:01:09","date_gmt":"2008-07-07T08:27:05","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-07-07T08:27:05","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2233","title":{"rendered":"CA4: Exigencies supported a warrantless entry for drugs and guns"},"content":{"rendered":"

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<\/a>, 286 Fed. Appx. 81 (4th Cir. 2008) (unpublished):<\/p>\n

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: <\/p>\n

(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. <\/p><\/blockquote>\n

United States v. Mowatt<\/em>, 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<\/em>, 848 F.2d 462, 470 n.4 (4th Cir. 1988).<\/p>\n

It bears noting here that this list is inexhaustive and no single factor is controlling. See United States v. Reed<\/em>, 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.<\/p>\n

. . .<\/p>\n

Turning to the factors enumerated in Mowatt<\/em>, 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.<\/p>\n

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.<\/p><\/blockquote>\n

Comment:<\/em> 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<\/em>, 58 Minn. L. Rev. 349, 394 (1974).<\/p>\n","protected":false},"excerpt":{"rendered":"

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