Tuesday, December 19, 2006

Exigent Circumstances Two-Fer: Has the Exception Become the Rule?

United States v. Newman, No. 05-20603 (5th Cir. Dec. 5, 2006) (King, Garza, Owen)

United States v. Maldonado, No. 04-51293 (5th Cir. Dec. 12, 2006) (Jolly, Davis, Wiener)

In both of these (unrelated) cases the Fifth Circuit affirms the denials of the defendants' motions to suppress drugs found during warrantless searches of their homes, holding that exigent circumstances justified the police officers' actions. These sorts of cases are necessarily very fact-dependent, so I won't dwell on the details of either case except to mention that they both involved protective sweeps following the apprehension of suspects who had just left the home.

What's notable about the opinions is their breadth, not only in finding exigent circumstances (due largely to a drugs = guns inference) but also in finding that the law enforcement officers weren't responsible for creating the exigencies in the first place. In fact, the breadth of the court's opinion in Maldonado prompted this trenchant concurrence from Judge Jolly:
I concur because the majority opinion is not plainly inconsistent with our precedent. It does seem, however, that we are coming close to establishing a rule that any yard arrest involving a drug operation can justify a protective sweep of the residence, which would allow an intended exception to the Fourth Amendment to become the rule.

Slip op. at 20.

Stay tuned, because these aren't the only recent Fifth Circuit cases involving the de facto drug war exception to the Fourth Amendment. Up next: the ever-expanding scope of Border Patrol checkpoints.


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