I Know I Called You, Officer, But Shouldn't You Have a Warrant?
A Brief Primer on the Emergency Aid Exception
Jul 06, 2012 - Tara Kohli
Both the United States Constitution and the Pennsylvania Constitution consider searches executed without a warrant to be presumptively unconstitutional.[i] However, this does not mean that the police are never allowed to search one’s person or property without first obtaining a search warrant. Courts have recognized that situations arise that necessitate swift police response to emergent threats, and that requiring a warrant under these conditions would essentially prevent the police from ensuring the safety of the public and of themselves. This is known as the “exigent circumstances” exception to the warrant requirement. [ii]
Exigent circumstances often take the form of emergency aid – a 911 call, a triggered burglar alarm, a fire, or a medical emergency requiring ambulatory services. Any of these situations may require the police to enter your home – and they will not have time to ask you for consent, even though they are thereby invading your protected privacy interests. A purist would balk at this – but realistically, are you willing to burn to death to keep your privacy interests inviolate? When your burglar alarm is going off and you’re not around to say it was a false alarm, do you want the police to do nothing as burglars run off with your property? Why install a burglar alarm if you didn’t want a police response?
Which brings us to our next point – don’t install burglar alarms. Period. The numbers on burglar alarm triggers show that 94-98% of all alarms are false alarms.[iii] It’s such a problem that some jurisdictions have started fining people whose systems consistently ring in false alarms[iv], including Pennsylvania.[v] It wastes police time and needlessly expends taxpayer-funded police resources. All that money you spent on installation and monthly subscription fees? You’d be better off using it to pay people not to rob you – typical police response times to triggered burglar alarms range from 1-4 hours,[vi] more than enough time for an experienced thief to hit your house and run. More importantly, a false alarm means that if the police do respond, and do enter your house, your privacy has just been invaded and there was no good reason for it. Moreover, while the scope of an emergency aid/exigent circumstances search may be narrow, it is still a search. Even a narrow search can turn up plenty of evidence – evidence that will not necessarily be excluded – evidence that can convict you.
When the police come into your home to assist the EMTs loading you into the ambulance, they probably won’t have any reason to start conducting a search of your premises. When your house catches fire, however, the fire marshal does have the ability to search your home to determine the cause of the fire.[vii] When you call 911, or when a burglar alarm goes off, the police will secure the premises – this search is very similar to the protective sweep of the area executed when police have made an arrest.[viii] They will be looking for harmful individuals who may be hiding in your home. That means they will be opening your closets, checking out your basement, running through your attic, poking into all your little hidey-holes. All those little places that you thought were such clever places for your grow-op or your stash. These situations implicate another important exception to the proscription against warrantless searches – the plain view doctrine.
The plain view doctrine allows the police to seize objects when “the incriminating character of the object is immediately apparent,” so long as the police are legally permitted to be where they are and are legally permitted to access the object.[ix] In an emergency aid context, any contraband left lying about your premises or in an area that could reasonably be expected to harbor a dangerous individual will be subject to seizure. This means the pipe on your dresser – but not in the drawer (as long as it’s closed). This also means that there is no safe place in your home to “hide” a grow room – any space big enough for a plant will probably be big enough for a person, and will be a reasonable place for the police to search.
The unfortunate illegality of cannabis means that the smoker is never free from risk when choosing to partake. The best one can do is to mitigate the risk, and hopefully avoid adding a drug conviction on top of a burned-down house or hospital stay. To summarize – do not bother installing burglar alarms. Do not leave contraband in plain view. Do not grow in your house. If you do grow in your house or leave paraphernalia lying around, do not expect the evidence to be suppressed, even if the police came to your house without a warrant because you needed help. And do avoid hostility – treating the police like home invaders when they arrive to offer emergency assistance is only going to raise their ire and suspicion. Do not make an unpleasant situation worse for yourself – just stay calm and quiet until you can call an attorney.
[i] USCA CONST Amend. IV-Search and Seizure; Pa. Const. art. I, § 8
[ii] Commonwealth v. Roland, 535 Pa. 595, 599-600 (Pa. 1994)
[v] “A person that owns, uses or possesses an alarm device or automatic dialing device may not, after causing or permitting three false alarms to occur in a consecutive 12-month period, cause or permit a subsequent false alarm to occur in the same consecutive 12-month period. A person that violates this paragraph commits a summary offense and shall, upon conviction, be sentenced to pay a fine of not more than $300.” 18 Pa. Cons. Stat. Ann. § 7511 (West)
[vii] United States v. Green, 474 F.2d 1385, 1389 (5th Cir. Fla. 1973)
[viii] Commonwealth v. Taylor, 565 Pa. 140, 150 (2001)
[ix] Commonwealth v. McCree, 592 Pa. 238, 245(2007)