III. Probable Cause Plus Exigent Circumstances

A warrantless search of a place,³⁵ other than a protective sweep or search incident to arrest, must be justified by both probable cause and exigent circumstances.³⁶ The exigent circumstances that justify a warrantless search of a vehicle³⁷ may also justify a warrantless search of a place. Those circumstances are (1) the danger of the escape of the suspect, (2) the danger to the safety of the officers or others, and (3) the danger of the destruction of evidence or other property.³⁸ One or more of those circumstances must exist before a warrantless search is justified.

To establish the validity of a warrantless search, the State must establish that the officer who conducted the search reasonably determined exigent circumstances existed.³⁹ If a reasonable, well-trained officer would have found the existence of exigent circumstances to justify a warrantless search, the search is deemed valid.⁴⁰ The State does not need to establish the defendant was “in fact preparing to escape, destroy evidence, endanger life, or damage property.”⁴¹

The exigent circumstance of the danger that the suspect will escape justifies a warrantless search when the officer knows of specific and articulable facts that would suggest to a reasonable officer that escape is “imminent.”⁴² To reasonably believe escape is imminent, the officer does not need to know for a fact that the suspect is preparing or attempting to escape.⁴³ Instead, it is sufficient for the officer to have a reason to believe the suspect could be trying to escape or would try to escape if the officer waited for a warrant.⁴⁴ Facts that would lead a reasonable officer to believe escape is imminent include the following: (1) the suspect has a means of escape,⁴⁵ (2) the violent nature of the crime makes an attempt to escape likely,⁴⁶ (3) the suspect is aware of the investigation against him or her,⁴⁷ and (4) the suspect’s actions suggest that escape is imminent.⁴⁸

Often, the suspect’s actions result in a chase or “hot pursuit” of the suspect into the premises.⁴⁹ This situation has been referred to as the “hot pursuit” exception to the warrant requirement. However, “hot pursuit” is not a separate exception. Rather, it is a description of a circumstance that leads to a reasonable belief that the suspect is attempting to escape.⁵⁰ Thus, “hot pursuit” describes the exigent circumstance of the danger that the suspect will escape.

To justify a warrantless search under the exigent circumstance of the possibility of destruction of evidence, there must exist a real possibility that evidence will be destroyed if law enforcement officers cannot enter and search the premises before they obtain a search warrant.⁵¹ The emergency circumstances creating the possibility of the destruction of evidence will vary from case to case. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant,⁵² (2) the time of day,⁵³ (3) the possibility of danger to police officers guarding the premises while a search warrant is sought,⁵⁴ (4) information indicating the suspects are aware that the police are on their trail, (5) the destructibility of the contraband,⁵⁵ and (6) the knowledge that efforts to dispose of the contraband and to escape are characteristic behavior of persons engaged in the suspected crime.⁵⁶

The exigent circumstance of danger to the safety of officers or others will not normally justify a warrantless search of a place. Even when officer safety is a concern, a warrantless search of a person’s home, motel room, office or other private place is limited to a search incident to an arrest, which includes a protective sweep. However, a concern for the safety of officers or others may justify the initial warrantless entry into such a place. For example, if officers hear gunshots, have a reason to believe a particular person fired the gun, and see that person through a window in his house holding a gun, then the officers may enter the house without a warrant and seize the gun.⁵⁷ In such a case, the officers have knowledge of specific facts that demonstrate that immediate entry into the house is necessary for the safety of the officers and others.⁵⁸ The key to this exigent circumstance is the officer’s knowledge of facts that demonstrate that immediate action is necessary.⁵⁹

It is possible that an officer who does not have probable cause to make an arrest will be conducting an investigatory stop inside a home or other private place.⁶⁰ In such a situation, if the officer develops articulable concerns for his or her safety, the officer should pat down (frisk) the suspect and seek consent to conduct a protective sweep. If consent is denied, the officer should leave. On the other hand, if the officer has probable cause to believe the suspect has committed or is committing a felony, then the officer may arrest the suspect. Likewise, if the pat down of the suspect reveals contraband or other evidence of a crime, the officer may arrest the suspect.

At that point, the officer may conduct a search incident to arrest, including a protective sweep. However, if consent to search is denied, and probable cause to arrest does not exist, the officer should leave the premises.

The scope of a warrantless search of a place depends on the exigent circumstance that justifies the search. In other words, the reason for searching will govern the scope of the search. The scope of a warrantless search of a place, such as a home, motel room, or office, under each of the exigent circumstances is limited to entry into the premises to eliminate the exigency. For example, the purpose for the exigent circumstance of danger that the suspect will escape is met when police officers enter the premises and prevent the suspect’s escape. Thus, the scope of a warrantless search under that exigent circumstance is limited to entering the premises, searching for the suspect, and apprehending the suspect. The officers may not search areas on the premises where the suspect cannot reasonably be expected to be found, and may not continue their search after finding the suspect. However, if officers find contraband or other evidence in plain view while searching for the suspect, they may seize it, or include it in an application for a search warrant.

Similarly, the purpose for allowing a warrantless search under the exigent circumstance of a danger of the destruction of evidence is met when officers enter the premises and either apprehend the suspect or others capable of destroying the evidence, or seize the evidence.

Therefore, the scope of a warrantless search conducted under this exigent circumstance is limited to entering the premises, searching for the suspect and the evidence which could be destroyed, and seizing the suspect and the evidence. Again, any search beyond that, for example of areas where the suspect or contraband may not be found, or after the suspect or contraband have been seized, would exceed the scope of a valid search.

Finally, like the other exigent circumstances, the purpose for allowing a warrantless search when there is a danger to officers and others is met when the officers enter the premises and eliminate the danger. Thus, a search conducted under the exigent circumstance of danger to officers or others must be limited to the actions designed specifically to ensure safety, such as entry into the premises to apprehend a dangerous suspect, pat down of the suspect or others inside the premises, and search of the suspect and the premises for weapons if the suspect is arrested. The search incident to arrest may include a protective sweep of the premises for other people who might pose a danger, and a search of the area of the premises in the arrestee’s immediate control. In addition, as with other searches, officers may seize items obviously contraband or evidence of a crime that are found in plain view after the lawful entry.

ENDNOTES

35 As discussed herein, pp. 129-131, conducting a search on school grounds involves particular circumstances requiring rules specific to those circumstances.

36 See State v. Valdez, 1990-NMCA-134, ¶13, 111 N.M. 438, 806 P.2d 578.

37 See supra., pp. 109-111.

38 State v. Copeland, 1986-NMCA-083, ¶ 14, 105 N.M. 27, 727 P.2d 1342.

39 Id. ¶ 40; State v. Allen, 2011-NMCA-019, ¶ 15, 149 N.M. 267, 247 P.3d 1152.

40 Copeland, 1986-NMCA-083, ¶ 1.

41 State v. Snyder, 1998-NMCA-166, ¶ 20, 126 N.M. 168, 967 P.2d 843.

42 See State v. Chavez, 1982-NMCA-072, ¶ 16, 98 N.M. 61, 644 P.2d 1050.

43 Id.

44 Id.

45 Id. ¶ 17.

46 Id.; See also Lara, 1990-NMCA-075, ¶ 20.

47 Id.

48 See State v. Moore, 1979-NMCA-037, ¶ 16, 92 N.M. 663, 593 P.2d 760 (suspect entered his house to get identification and did not come back out); State v. Duffy, 1998-NMSC-014, ¶ 71, 126 N.M. 132, 967 P.2d 807 (suspect became upset upon seeing the officers in the trailer home, and moved toward the back of the trailer). 

49 See Moore, 1979-NMCA-037, ¶ 20.

50 See Id. ¶¶ 14-15.

51 State v. Gomez, 1997-NMSC-006, ¶ 42, 122 N.M. 777, 932 P.2d 1 (citing State v. Ortega, 1994-NMSC-013, ¶ 9, 117 N.M. 160, 870 P.2d 122.; see also Wagoner, 1998-NMCA-124, ¶ 12 (applying requirement to warrantless search of a home).

52 Copeland, 1986-NMCA-083, ¶ 15 (warrantless search of home was justified because it would have taken the officers two and one-half to three hours to get a warrant); Snyder, 1998- NMCA-166, ¶ 21 (nearest magistrate was 35 miles away from border checkpoint where defendant was stopped).

53 Gomez, 1997-NMCA-006, ¶ 40.

54 Id.

55 Copeland, 1986-NMCA-083, ¶ 15 (the metabolizing of the alcohol in the defendant’s system is as much a means of destruction as flushing drugs down the toilet). But see Missouri v. McNeely, 569 U.S. 141 (2013) (the natural dissipation of alcohol from the bloodstream will not always constitute an exigency justifying warrantless taking of a blood sample, and will depend on all of the facts and circumstances of the particular case).

56 Wagoner, 1998-NMCA-124, ¶ 12 (quoting United States v. Rubin, 474 F.2d 262, 268 (3^rd Cir. 1973)).

57 State v. Calvillo, 1990-NMCA-046, ¶ 10, 110 N.M. 114, 792 P.2d 1157.

58 Id. ¶ 14.

59 State v. Moore, 2008-NMCA-056, ¶ 14, 144 N.M. 14, 183 P.3d 158. Interestingly, New Mexico courts do not consider facts indicating the presence of a methamphetamine lab sufficient to justify immediate entry into a home. Id.; see also Trudelle, 2007-NMCA- 066, ¶ 29. Rather, immediate entry requires additional facts, such as facts indicating the lab is a working lab, State v. Allen, 2011-NMCA-019, 149 N.M. 267, 247 P.3d 1152, or facts indicating the presence of a person inside the home; State v. Brown, 2010-NMCA- 079, ¶ 18, 148 N.M. 888, 242 P.3d 455. 

60 Entry into the premises may be consensual, or may be justified by probable cause and exigent circumstances.