As the Devlin kidnapping case unfolds, one cannot yet tell from the news stories (see NYTimes.com and CNN.com) whether a search warrant was used for the entry into the apartment where the boys were found. The Times article talks about a “hunch,” but the hunch was what led the officers to keep Devlin under surveillance. When they decided to confront Devlin as he was taking out the trash, his demeanor was at first friendly and cooperative and then turned “180 degrees.” That would potentially be reasonable suspicion at the least. Devlin’s vehicle matched the description of the kidnapper’s vehicle. But, according to the news articles, they did not enter: they called the FBI which came out. Apparently the FBI made the entry.
Did they need a warrant to enter? Cases generally hold that officers may enter with probable cause but without a warrant where they are seeking to rescue a kidnapping victim. Wedgeworth v. State, 610 So. 2d 1244 (Ala. Crim. App. 1992); State v. Hatter, 342 N.W.2d 851 (Iowa 1983); Oliver v. United States, 656 A.2d 1159, 1167-68 (D.C. App. 1995):
Other jurisdictions have reflected these unique qualities of kidnapping in holding that kidnapping may create exigent or emergency circumstances, even without direct evidence of a threat of bodily harm to the victim. See People v. Thiret, 685 P.2d 193, 200 (Colo. 1984) (en banc) (finding exigent circumstance when a “three-year-old child had recently been abducted, her life could well have been in danger, and the Sheridan police were engaged in efforts to determine her whereabouts”); Benefiel v. State, 578 N.E.2d 338, 345 (Ind. 1991) (finding emergency situation when a 17 year-old kidnapping and rape victim’s life is in danger), cert. denied, 504 U.S. 987, 112 S.Ct. 2971, 119 L. Ed. 2d 591 (1992); Johnson v. State, 554 P.2d 51, 54 (Okla. Crim. App.) (finding exigent circumstances in kidnapping case in “hopes of saving a human life” when police suspected that elderly man being held in a trunk of an automobile during cold days), cert. denied, 429 U.S. 943, 97 S. Ct. 364, 50 L. Ed. 2d 314 (1976); People v. Diaz, 170 A.D.2d 618, 566 N.Y.S.2d 391, 392 (N.Y. App. Div. 1991) (finding emergency situation when father allegedly kidnapped four-year-old son because the “safety of the child was potentially in jeopardy”), appeal denied, 588 N.E.2d 762 (1992).
A recent case in our neighboring jurisdiction involved a report that a man and woman had been missing for eighteen hours. Burks v. State, 96 Md. App. 173, 624 A.2d 1257 (Ct. Spec. App.), cert. denied, 332 Md. 381, 631 A.2d 451 (Md. 1993). An officer spotted the man’s car outside a motel room and through a gap in the curtains saw a fully clothed man and woman lying on top of one bed and a third person lying face down on the other bed; all three appeared to be asleep. 624 A.2d at 1267. The trial judge acknowledged that “there was no blood on the scene. There were no signs of injury or struggle. The room was not ransacked from anything that [the officer] could tell, nor did he have any information as to the identity of the perpetrator, or as to whether this person was armed.” 624 A.2d at 1270. Nevertheless the trial court ruled, and the appellate court affirmed, that for the officer “to have waited to get a warrant or to have called the room to say ‘are you all right in there’ would have been ill-advised, and may well have resulted in serious injury or escape.” Id. Thus, the officer’s warrantless entry was permissible under the exigent circumstances exception. Id.
When dealing with something as significant as a kidnapping victim inside, the quantum of probable cause for an entry effectively becomes a sliding scale: the greater the exigency, the easier it will be for any court to conclude there was probable cause. See Brinegar v. United States, 338 U.S. 160, 175 (1949) (“The standard of proof for [probable cause] is … correlative to what must be proved.”) which suggests this, and which Justice Jackson dissenting in Brinegar, at 183, admitted:
But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.
Also, remember that, under Illinois v. Gates, 462 U.S. 213, 238 (1983), probable cause is a “fair probability” on the totality of the circumstances. It is not “more probable than not.” Indeed, what would normally be “reasonable suspicion” might effectively become “probable cause” in a case like this; no matter that the question of probable cause for a warrantless entry is reviewed de novo on appeal. Orneleas v. United States, 517 U.S. 690 (1996).
The bottom line: Once this case is in court, all doubts will be resolved in favor of sustaining the entry.
Tuesday Update: The St. Louis Post-Dispatch reports today that Devlin refused consent to search.
Devlin refused to let officers check his apartment, which triggered surveillance that resulted in Devlin’s arrest Friday and the subsequent rescue of the boys.
An article yesterday reports that the police found child porn on his computer.
Presumably they had a warrant for the computer. The emergency exception only allows them to enter to look for a missing child, not conduct a wholesale search.
