Immigration Lawyers New York



Searches and Seizures: Dwellings

Dwellings are generally most protected from the searches and seizures under the Fourth Amendment. The Court has held that a person in his or her home has the highest expectation of privacy. A warrant is generally required.

However, what if nobody answers the door? Can the police break-in and if yes, then how soon? What if the warrant is defective? What kinds of exigent circumstances may justify foregoing obtaining a warrant? This section deals with these and other issues.

Court Opinions on the Topic:

Richards v. Wisconsin (1997)
Minnesota v. Carter (1998)
Illinois v. McArthur (2001)
United States v. Banks (2003)


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Illinois v. McArthur (2001)
Opinion by: BREYER
In the circumstances of the case before us, we cannot say that the warrantless seizure was per se unreasonable. It involves a plausible claim of specially pressing or urgent law enforcement need, i.e., "exigent circumstances."

[...]

...[T]he argument that 15 to 20 seconds was too short for Banks to have come to the door ignores the very risk that justified prompt entry. True, if the officers were to justify their timing here by claiming that Banks's failure to admit them fairly suggested a refusal to let them in, Banks could at least argue that no such suspicion can arise until an occupant has had time to get to the door, a time that will vary with the size of the establishment, perhaps five seconds to open a motel room door, or several minutes to move through a townhouse. In this case, however, the police claim exigent need to enter, and the crucial fact in examining their actions is not time to reach the door but the particular exigency claimed. On the record here, what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks's. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine.

[...]

Courts of Appeals have explicitly taken into account the risk of disposal of drug evidence as a factor in evaluating the reasonableness of waiting time. See, e.g., United States v. Goodson, 165 F.3d 610, 612, 614 (CA8 1999) (holding a 20-second wait after a loud announcement at a one-story ranch reasonable); United States v. Spikes, 158 F.3d 913, 925-927 (CA6 1998) (holding a 15-to-30-second wait in midmorning after a loud announcement reasonable); United States v. Spriggs, 302 U.S. App. D.C. 54, 996 F.2d 320, 322-323 (CADC 1993) (holding a 15-second wait after a reasonably audible announcement at 7:45 a.m. on a weekday reasonable); United States v. Garcia, 983 F.2d 1160, 1168 (CA1 1993) (holding a 10-second wait after a loud announcement reasonable); United States v. Jones, 133 F.3d 358, 361-362 (CA5 1998) (relying specifically on the concept of exigency, holding a 15-to-20-second wait reasonable). See also United States v. Chavez-Miranda, 306 F.3d 973, 981-982, n. 7 (CA9 2002) ("Banks appears to be a departure from our prior decisions. . . . [W]e have found a 10 to 20 second wait to be reasonable in similar circumstances, albeit when the police heard sounds after the knock and announcement"); United States v. Jenkins, 175 F.3d 1208, 1215 (CA10 1999) (holding a 14-to-20-second wait at 10 a.m. reasonable); United States v. Markling, 7 F.3d 1309, 1318-1319 (CA7 1993) (holding a 7-second wait at a small motel room reasonable when officers acted on a specific tip that the suspect was likely to dispose of the drugs).

[...]

At common law, the knock-and-announce rule [in executing search warrants] was traditionally "justified in part by the belief that announcement generally would avoid 'the destruction or breaking of any house . . . by which great damage and inconvenience might ensue.'" [...] One point in making an officer knock and announce, then, is to give a person inside the chance to save his door. That is why, in the case with no reason to suspect an immediate risk of frustration or futility in waiting at all, the reasonable wait time may well be longer when police make a forced entry, since they ought to be more certain the occupant has had time to answer the door. [...] Suffice it to say that the need to damage property in the course of getting in is a good reason to require more patience than it would be reasonable to expect if the door were open. Police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram. [...] Attention to cocaine rocks and pianos tells a lot about the chances of their respective disposal and its bearing on reasonable time.

[...]

Minnesota v. Carter (1998)
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring:
...[W]hereas it is plausible to regard a person's overnight lodging as at least his "temporary" residence, it is entirely impossible to give that characterization to an apartment that he uses to package cocaine. Respondents here were not searched in "their ... house" under any interpretation of the phrase that bears the remotest relationship to the well-understood meaning of the Fourth Amendment.

[...]

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