By Shaffer & Engle Law Offices, LLC posted in Drug Crimes on Sunday, April 28, 2013
The courts must undertake a balancing test to determine if an exigent circumstance trumps the individual's right to unwarranted search and seizure.
By ** Attorney Elisabeth K.H. Pasqualini**, Drug Defense Attorney, Harrisburg, PA
In a recent Pennsylvania Superior Court case, the Court addressed the exception to the warrant requirement of 'exigent circumstances. Commonwealth v. Johnson, --A.3d-- (April 23, 2013), 2013 WL 1737024. There, the police received a tip from two anonymous informants that marijuana and prescription pills were being sold at a trailer. Upon arrival, the police identified one individual as described in the report. The trailer smelled of burning marijuana. The officers knocked on the door and were greeted by Johnson. He told the police he would not consent to their entry into the home. The police promptly restrained him from re-entering in order to prevent destruction of any evidence, secured the residence of any other persons and applied for a search warrant.
The Court reviewed the long history of cases on this topic. Here, the courts are to review the 'totality of the circumstances' in determing if an exigency exists. Such factors include:
[V]arious factors need to be taken into account to assess the presence of exigent circumstances; for example: (1) the gravity of the offense; (2) whether the suspect is reasonably believed to be armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong reason to believe that the suspect is within the premises being entered; (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended; (6) whether the entry is peaceable; (7) the timing of the entry; (8) whether there is hot pursuit of a fleeing felon; (9) whether there is a likelihood that evidence will be destroyed if police take the time to obtain a warrant; and (10) whether there is a danger to police or other persons inside or outside of the dwelling to require immediate and swift action.
In assessing these factors, the courts must perform a "balancing test", that is determine whether the exigency of the current circumstance outweighs the individual's 4th Amendment expectation of privacy. In most instances, police will have a difficult time justifying such an intrusion.