WPI 342.07 Unreasonable Search—Exceptions to Warrant Requirement—Exigent Circumstances

Use this instruction for a claim of an unreasonable search under the Fourth Amendment when issues of exigent circumstances are involved.

Use this instruction with WPI 342.04 (Unreasonable Search—Burden of Proof on the Issues) and WPI 340.01 (Claims Instruction for Section 1983 Cases). Use the bracketed language as applicable.

A similar pattern instruction is used by the Ninth Circuit. See 9th Cir. Civ. Jury Instr. 9.16 (2007).

Exigent circumstances include: (1) hot pursuit; (2) fleeing/escaping suspect; (3) danger to the arresting officer or the public; (4) mobility of a vehicle; and (5) mobility or destruction of the evidence. E.g., Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993) (includes “some other consequence improperly frustrating legitimate law enforcement efforts” as exigency); State v. Bessette, 105 Wn.App. 793, 21 P.3d 318 (2001); State v. Ramirez, 49 Wn.App. 814, 819 n.4, 746 P.2d 344 (1987). For a dangerous situation to be characterized as an emergency, it is not necessary for police to have “ironclad proof of a ‘likely serious, life-threatening’ injury.” Michigan v. Fisher, 558 U.S. 45, 49, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam); see also Brigham City v. Stuart, 547 U.S. 398, 403–07, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). The test is “whether there was ‘an objectively reasonable basis for believing’ that medical assistance was needed, or persons were in danger.” Michigan v. Fisher, 558 U.S. 45, 49 (quoting Brigham City).

To determine whether entry without a warrant was justified by exigent circumstances, six factors may be considered: (1) whether a grave offense was involved; (2) whether the suspect was reasonably believed to be armed; (3) whether information about the suspect's guilt was trustworthy; (4) whether there was strong reason to believe the suspect was on the premises; (5) whether the suspect was likely to escape if not swiftly apprehended; and (6) whether entry could be made peaceably. See Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1171 (9th Cir. 2003); LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000); State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986); State v. Cardenas, 146 Wn.2d 400, 47 P.3d 127 (2002). It is not necessary to have proof of every factor, “only the factors that are sufficient to show that the officers needed to act quickly.” State v. Cardenas, 146 Wn.2d at 408.

When the evidence shows that police did not create the exigent circumstances “by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” Kentucky v. King, 563 U.S. 452, 462, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). Officers may not, however, create an exigency by engaging in conduct that violates the Fourth Amendment. See United States v. Lundin, 817 F.3d 1151, 1158 (9th Cir. 2016) (officers created exigency by unlawfully standing in curtilage of defendant's home at around 4 a.m, knocking on door, and claiming exigency when suspect made crashing noises inside home).

The United States Supreme Court has determined that the natural metabolization of alcohol in the bloodstream does not create a per se exigent circumstance. See Missouri v. McNeely, 569 U.S. 141, 152–53, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Similarly, domestic violence situations must be evaluated on the totality of the circumstances and are not per se exigent circumstances. See United States v. Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004).

The “immediate aid” or emergency prong of this exception is derived from police officers' community caretaking function: a warrantless entry or search that would be otherwise barred may be justified by the need to protect life or avoid serious injury. See Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); United States v. Snipe, 515 F.3d 947 (9th Cir. 2008).