A REVIEW OF THE DIFFERENCE BETWEEN THE EMERGENCY AND EXIGENCY EXCEPTIONS

by Risa Christensen, Esq.

As we have said many times in these blogs, our courts maintain that the protection of individuals from unreasonable government intrusion into their houses remains at the very core of the Fourth Amendment.  This is why normally a warrant is required before the police may enter.  Without a search warrant, the search of a house is per se unreasonable, and absent an exigency or consent, a warrantless entry into the home is impermissible under the Fourth Amendment. Huff v. City of Burbank, 632 F.3d 539 (9^th Cir. 2011).

In Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009), the court said there are two general exceptions to the warrant requirement:  exigency and emergency.  These exceptions are “narrow” and their boundaries are “rigorously guarded” to prevent any expansion that would unduly interfere with the sanctity of the home.

In general, the difference between the two exceptions is this:  An “emergency” exception stems from the police officers' “community caretaking function” and allows them “to respond to emergency situations” that threaten life or limb. This exception does not derive from the police officers' function as criminal investigators. By contrast, the “exigency” exception does derive from the police officers' investigatory function; it allows them to enter a home without a warrant if they have both probable cause to believe that a crime has been or is being committed and a reasonable belief that their entry is “necessary to prevent ... the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”   Thus to enter a home under this exception there must be both exigency and probable cause.  Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009),

The Emergency Exception

In Hopkins, the court said that a police officer may not enter a home to investigate a medical emergency or other immediate risk to life or limb unless he has “reasonable grounds” to believe an emergency is at hand and that his immediate attention is required. Under this prong, law enforcement must have an objectively “reasonable basis” for concluding that there is an immediate need to protect others or themselves from serious harm.

The court in Hopkins said that “[W]e must judge whether or not the emergency exception applies in any given situation based on the totality of the circumstances, and, as with other exceptions to the warrant requirement, the Government bears the burden of demonstrating that the search at issue meets these parameters.”

The Exigency Exception

This exception requires meeting two requirements: first, the officer must have had probable cause to search the house; and second, there must be exigent circumstances which justify a warrantless intrusion. “Exigent circumstances” can include “the destruction of relevant evidence.”  However, keep in mind that minor offenses will almost never justify a warrantless entry.  The U.S. Supreme Court suggested that exigent circumstances can rarely, if ever, support entry into a home to investigate or arrest someone for a misdemeanor offense. 

The exigency analysis must turn on the “gravity of the underlying offense” and a finding of exigent circumstances is particularly inappropriate when the underlying offense is relatively minor.  Welsh v. Wisconsin 466 U.S. 740, 753,104 S.Ct. 2091(1984).

These two exceptions have been argued in alternative theories, but be aware, courts will conduct a thorough analysis to see if either of them apply and remember courts do uphold the rule that the exceptions are  “narrow” and their boundaries are “rigorously guarded.