CAN THE POLICE ENTER YOUR HOME WITHOUT A WARRANT?

It’s a simple question. And the general answer is: NO. But as with almost every legal question, the devil is in the details. A warrantless intrusion into an individual’s home is per se unreasonable absent an applicable exception to the warrant requirement.^[1] To break it down, we follow a familiar legal analysis: rule + exception.

THE RULE: the 4th amendment has “drawn a firm line at the entrance to the house.”^[2]

• The “chief evil” against which the 4th amdt is directed = physical entry into the home.^[3]
• AKA TO GET IN, GET A WARRANT.

THE EXCEPTIONS: EXIGENT CIRCUMSTANCES + PROBABLE CAUSE:

• Police may not reasonably cross the threshold of a private citizen’s home without a warrant, “unless exigent circumstances justify the intrusion.”^[4]
  • “Warrants are generally required to search a person’s home or his person unless `the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.^[5]“
  • Warrantless entries into the home are presumptively unreasonable, even with probable cause.^[6]
• Probable Cause Element: The fourth amendment…prohibits the police from entering private property without a warrant, unless there are exigent circumstances and probable cause to arrest.^[7]

• AKA EXIGENT CIRCUMSTANCES + PC= COPS IN YOUR HOME

SO WHAT ARE “EXIGENT CIRCUMSTANCES”

Throughout the years, four specific types of exigent circumstances have evolved:

• EMERGENCY AID:
  • Police Can enter:
    • “To render emergency assistance to an injured occupant; OR
    • “To protect an occupant from imminent injury.”^[8]

• Rationale of exception: “to offer assistance to a citizen possibly imperiled, not to obtain evidence of a crime, justifies such a search.”^[9]

• Two Prong Test in Illinois:
  • Police must have objectively reasonable grounds to believe emergency exists; AND
  • Reasonable basis, approximately probable cause, to associating area of search/entry with emergency.^[10]
    • Probable cause in an emergency situation = reasonable belief a person is in danger.^[11]
    • Based on totality of the circumstances officer encounters.^[12]
  • EXAMPLES:
    • Cops witness a fight or its aftermath.
    • Domestic Violence/sexual assault/battery call with evidence fight just occurred/is occurring.^[13]
    • Well Being Check.^[14]
    • To fight a fire or investigate the source.^[15]

• THE IMMINENT DESTRUCTION OF EVIDENCE:
  • The Police Can enter:
    • To prevent the imminent destruction of evidence.^[16]
    • The potential destruction of evidence alone is not enough.^[17]
      • “The general rule in Illinois is that the potential destruction of evidence, standing alone, does not excuse obtaining a warrant.”^[18]
      • For example, the smell of marijuana or observations of underage drinking alone DOES NOT establish exigent circumstances to justify a warrantless entry into a home.^[19]

• HOT PURSUIT
  • The Police Can Enter:
    • When in “hot pursuit” of a suspect who flees from a public place into his residence.^[20]
      • Involves “some sort of a chase” but does not require an extended pursuit through the public streets.^[21]
    • Why?
      • “A suspect may not defeat an arrest that was set in motion in a public place by escaping to a private place.”^[22]
    • This exception has only been applied to fleeing felons and misdemeanor DUI suspects, suggesting that the doctrine applies to misdemeanors as well as felon pursuits.^[23]

• SERVING ARREST WARRANT
  • The Police Can Enter if:
    • They have an arrest warrant based on probable cause.
    • It is the suspect’s dwelling/place of residence.
    • There is reason to believe the suspect is likely inside his or her dwelling.^[24]
      • Note: standard is reasonable belief, not probable cause.^[25]

THE EXCEPTION TO THE EXCEPTION

Exigent circumstances are not limited to emergency aid, imminent destruction of evidence, and hot pursuit. They’re simply the most common examples of exigent circumstances.

Not all exigent circumstances fall within these neat boxes. Broadly speaking, Illinois law identifies certain factors indicative of exigent circumstances:

• (1) the crime under investigation was recently committed;
• (2) there was any deliberate or unjustified delay by the police during which time a warrant could have been obtained;
• (3) a grave offense was involved, particularly a crime of violence;
• (4) there was reasonable belief that the suspect was armed;
• (5) the police officers were acting on a clear showing of probable cause;
• (6) there was a likelihood that the suspect would escape if he was not swiftly apprehended;
• (7) there was strong reason to believe the suspect was in the premises; and
• (8) the police entry was made peaceably, albeit nonconsensually.^[26]

This list is not exhaustive. Whether or not the police can enter your home without a warrant will always be determined by the specific facts of each case, or what the law calls a “case by case” approach. The focus will be, as always with the 4th amendment, reasonableness. Given the totality of the circumstances, was the officer’s action reasonable? It almost always comes down to this question.

The 4th amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. There’s an old saying taught in law school: “A lawyer knows the rule; a good criminal defense lawyer knows the exception to the rule; a great lawyer knows the exception to the exception.”. At Chicago criminal defense firm Robert Callahan and Associates, we know the exception to the exception, and everything in between. No exception.

^[1] People v. Abt, 269 Ill. App. 3d 831, 836 (1995).

^[2] People v. Payton, 445 U.S. 573, 590 (1980)

^[3] Id.

^[4] Id.

^[5] Mincey v. Arizona, 437 U. S. 385, 393-394 (1978).

^[6] People v. Wear, 229 Ill.2d 545, 562 (2008).

^[7] People v. James, 163 Ill. 2d 302, 310-12 (1994).

^[8] Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

^[9] People v. Koniecki, 135 Ill. App.3d 394, 399 (1985) citing People v. Meddows 100 Ill. App.3d 576, 580 (1981).

^[10] People v. Ferral, 397 Ill. App. 3d 697, 705 (2009).

^[11] People v. Lomax, 2012 IL app (1st) 103016, at p. 50.

^[12] Koniecki, at 399.

^[13] People v. Ramsey, 2017 IL App (1st) 160977.

^[14] Koniecki.

^[15] United States v. Santana, 427 U.S. 38 (1976).

^[16] Bingham, at 403.

^[17] People v. Olson, 112 Ill. App.3d 20, 24 (1983).

^[18] People v. Cohen, 146 Ill. App.3d 618 (1986).

^[19] Cohen, Eden, Olson. Florida v. Jardines, 133 S.Ct. 1409 (2013).

^[20] United States v. Santana, 427 U.S. 38 (1976)

^[21] Id. Santana, 42 U.S. at 43.

^[22] Id.

^[23] People v. Wear, 229 Ill.2d 545 (2008).

^[24] Payton v. New York, 445 U.S. 573 (1980).

^[25] People v. Sain, 122 Ill.App.3d 646 (2nd Dist. 1984).

^[26] People v. Foskey, 136 Ill.2d 66, 75 (1990).