Exigencies, Not Exceptions: How to Return Warrant Exceptions to Their Roots
Michael Gentithes * | 25.1 | Citation: Michael Gentithes, Exigencies, Not Exceptions: How to Return Warrant Exceptions to Their Roots, 25 U. Pa. J. Const. L. 60 (2023).
When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third-party ambush. Officers and individuals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country.
There is an easier way. The Supreme Court has recently reaffirmed its support for a clear and limited “exigent circumstances” exception to the warrant requirement. Such exigencies originally motivated the Court to create many of the separately-named exceptions that apply today. The Supreme Court should return those separate exceptions to their exigency-based roots, eliminating or reducing many of them while lowering the tension in officer-individual interactions. The Court should follow a simple guiding principle: if officers have reasonable suspicion that an interaction creates an exigent circumstance, a warrantless search is constitutional.
The Court should also take additional steps to ensure that the exigent circumstances exception remains limited. First, it should clarify that officers must have “reasonable suspicion” that a genuine emergency is afoot before warrantlessly searching. Second, it should hold that evidence officers discover after deliberately creating a pretextual exigency to avert the warrant requirement will be excluded from trial.
These changes are both revolutionary and simple. They create a clear and coherent basis for exceptions to the warrant requirement in officer-individual interactions. And they are an important step towards reducing the dangerous tension that plagues everyday policing.
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* Associate Professor, University of Akron School of Law.