Chapter 30: Securing Premises Pending Warrant
Generally
The problem: Officers who have probable cause to believe that evidence of a crime is located in a certain residence will ordinarily seek a search warrant. But sometimes there is good reason to believe that the evidence would be destroyed, or that its evidentiary value would be compromised, if they waited for a warrant. In most of these situations, the best course of action is to secure the premises pending issuance of a warrant. Also see Chapter 26 Protective Sweeps.
Securing is a “seizure”: The nonconsensual securing of a residence constitutes a “seizure” of the premises under the Fourth Amendment.[1] Consequently, the seizure is unlawful if it was unreasonable at its inception or in the manner in which it was carried out.[2]
Types of Securing
: There are two ways to secure a residence pending issuance of a warrant:
Secure from the inside: To secure a residence from the inside means entering the premises (forcibly if necessary) and conducting a sweep or “walk through.” Officers may look in places where a person might be present or hiding.[3] And if they find anyone, they will either arrest, detain, or release them. Securing from the inside is both a search and seizure.[4]
Secure from the outside: To secure from the outside means posting officers at strategic positions outside the building to make sure no one enters while another officer seeks a warrant.[5] Unlike securing from the inside, this method constitutes only a seizure—not a search—and is therefore less intrusive. As a practical matter, however, it may not be useful unless officers are satisfied there is no one on the premises who constitutes a threat to the evidence.
Requirements
Securing from the inside: Officers must have probable cause of the following:[6]
(1) Evidence inside: That evidence of a crime was on the premises. This requirement is usually based on reasonable inference. See Chapter 4 Probable Cause to Search (The Evidence Exists, Location of the Evidence, and The Evidence is Still There).
(2) Someone is inside: That someone is inside the house. This is commonly based on sights or sounds from inside; e.g., talking, noise, radio, TV, seeing an occupant’s car parked outside, lights on at night. See Chapter 26 Protective Sweeps (Dangerous person on premises) and Chapter 18 Entry to Arrest (Entering the Arrestee’s Home, Arrestee is now inside).
(3) Threatened destruction: The person had a motive to destroy, remove, or corrupt the evidence, and could do so if officers waited for a warrant.[7] Also see Chapter 19 Exigent Circumstance Searches (Investigative emergencies, Destruction of evidence).
Securing from the outside: The requirements are the same as those for securing from the inside except (1) only reasonable suspicion is required,[8] and (2) officers need not have reason to believe there is someone inside.
Other Issues
Exit or remain inside? If officers secure a residence from the inside, it does not seem to matter whether they remain inside or outside while waiting for the warrant. If they remain, however, they may not search or photograph anything, or otherwise “exploit” their presence inside.[9]
Seizing evidence in plain view: If officers happen to discover evidence in plain view while conducting a sweep, they may seize it. See Chapter 53 Plain View. If, however, officers anticipate finding additional evidence on the premises, the better practice is to seek a warrant while continuing to secure the premises. This is to avert an argument in court that “securing” was merely a pretext to conduct a warrantless search.
If an occupant wants to enter: Unless there was a good reason to prohibit it, officers should permit occupants to enter for a legitimate purpose; but officers may insist they be accompanied by an officer.[10]
What to tell the judge: As a matter of ethical “full disclosure,” an officer who is writing a search warrant affidavit after the premises have been secured should inform the judge that a warrantless entry had been made.[11]
When the search may begin: Officers may begin the search when the warrant is issued; they need not wait until it is brought to the scene. See Chapter 36 Executing Search Warrants (Time Restrictions, Entry before arrival of warrant).
Notify officers of warrant limits: If the affiant phones the officers on the scene that the warrant had been issued, he must also notify them of the terms of the warrant so they will know where they can search, and what evidence they may search for and seize.[12]
Suppression issue: If a court rules that the warrantless entry was not supported by probable cause, the evidence discovered in the course of the search may nevertheless be admissible pursuant to the independent source exception if (1) the information obtained during the warrantless entry was unnecessary to establish probable cause, and (2) the decision to seek a warrant was made before officers made the warrantless entry.[13] See Chapter 61 Inevitable Discovery and Independent Source. The following circumstances should be relevant proving that the decision to seek a warrant was made before the premises were secured from the inside:
Officer was writing warrant: The fact that an officer was writing a warrant or was en route to the police station to write one before entry was made is strong evidence that officers had decided to seek a warrant beforehand.[14] It is not, however, an absolute requirement.[15]
Officer’s testimony: A court may consider an officer’s testimony that he would have sought a warrant if, in light of the objective circumstances, such testimony was plausible.[16]
Probable cause plainly existed: It is relevant that the evidence of the defendant’s guilt was so strong that any reasonable officer would have sought a warrant.[17] For this same reason, it might be relevant that the crime was especially serious.
Notes
[1] USSC: US v. Jacobson (1984)
466 US 109, 113 [“A ‘seizure’ of property occurs when there is some meaningful
interference with an individual’s possessory interests in that property”].
[2] OTHER: US v. Shrum (10C 2018)
908 F3 1219, 1230 [“At its inception, a seizure must be reasonable [and]
must then remain reasonable throughout its duration and in the entirely of
its scope.”].
[3] CAL: P v. Seaton (2001) 26 C4
598, 632 [“if the exigent circumstance being responded to is the possibility
that there may be other persons within the premises who might destroy evidence,
then the logical first step is a ‘sweep’ of those premises to see if in fact
anyone else is present. If no one is found, then the exigency has ended and the
police should then merely maintain control of the premises while a search warrant
is obtained,” quoting from 3 LaFave, Search and Seizure (3d ed.1996)§ 6.5(b), p. 353.].
[4] CAL: P v. Camilleri (1990)
220 CA3 1199, 1205 [“Undoubtedly it was both a seizure and search in Fourth
Amendment terms for government agents to enter the residence without consent,
locate its occupants, detain them, and examine furniture for concealed weapons,
even for the limited purpose of securing the residence pending arrival of a search
warrant.”].
[5] CAL: P v. Bennett (1998) 17
C4 373, 377 [“If police officers have a “middle ground” of barring entry to a
suspect’s dwelling for a limited period during their investigations, while the
officers remain outside the premises, the investigations may reveal that a search
of the dwelling is unnecessary, thus minimizing the intrusion on the occupant’s
Fourth Amendment interests. If, on the other hand, the investigating officers
conclude that a search of the dwelling is called for, permitting the officers to
bar entry will give the officers sufficient time to seek a warrant, thereby
allowing a neutral and detached magistrate to determine whether the officers have
probable cause to search.”].
[6] USSC: Illinois v. McArthur
(2001) 531 US 326, 331-32. CAL: P v. Bennett (1998) 17 C4 373,
386 [“police may not enter a dwelling to ‘secure’ the evidence therein without
both probable cause and exigent circumstances”]; CAL: P v. Bennett
(1998) 17 C4 373, 386 [court notes that “courts have held that the police may not
enter a dwelling to ‘secure’ the evidence therein without both probable cause and
exigent circumstances”]; In re Elizabeth G. (2001) 88 CA4 496, 504-5;
P v. Gentry (1992) 7 CA4 1255, 1261-64 [no probable cause];
Ferdin v. Superior Court (1974) 36 CA3 774, 782; P v. Camilleri
(1990) 220 CA3 1199, 1205-9 [securing a residence from the inside constitutes a
seizure of the premises and, to the extent officers looked around the premises,
a search]. 9th CIR: US v. Alaimalo (9C 2002) 313 F3 1188, 1193
[“Even when exigent circumstances exist, police officers must have probable cause
to support a warrantless entry into a home.”]. OTHER:
US v. Perez-Diaz (1C) 2017) 848 F3 33.
[7] USSC: Richards v. Wisconsin
(1997) 520 US 385, 396 [the suspect’s “apparent recognition of the officers
combined with the easily disposable nature of the drugs justified the officers’
ultimate decision to enter without first announcing their presence and authority.”];
Illinois v. McArthur (2001) 531 US 326, 332 [“the police had good reason to
fear that, unless restrained, McArthur would destroy the drugs before they could
return with a warrant”]. CAL: P v. Daughhetee (1985) 165 CA3 574,
578 [“The officer saw two males looking out the front window of the residence
observing the detention of [their accomplice]; P v. Freeny (1974) 37 CA3
20, 29 [the affidavit “established appellant’s residence there, his status as a
dealer in heroin … the sound of conduct from within the premises in response to
a knock by officers on the door and an announcement of their identity”]
Ferdin v. Superior Court (1974) 36 CA3 774, 781 [“there was evidence of an
ongoing operation in narcotics traffic. As time passed (and it took about two hours
to obtain the search warrant), the officers might reasonably believe that Ferdin
would become uneasy and either destroy the contraband or be on the alert to dispose
of it if anyone should approach the house or secrete it more effectively”]. OTHER:
US v. Socey (DCC 1988) 846 F2 1439, 1446 [“efforts to dispose of narcotics
and to escape are characteristic behavior of persons engaged in the narcotics
traffic”]; US v. Santa (11C 2000) 236 F3 662, 670 [“Ramirez and Santa,
unaware of their impending arrest, had no reason to flee or to destroy [evidence].”].
[8] USSC: Illinois v. McArthur
(2001) 531 US 326, 331 [“we balance the privacy-related and law enforcement-related
concerns to determine if the intrusion was reasonable”]. CAL:
P v. Bennett (1998) 17 C4 373, 387 [“Permitting police officers the limited
intrusion of temporarily prohibiting entry to a dwelling when they have a reasonable
suspicion that contraband or evidence of a crime is inside, while the officers
themselves remain outside, will enable them to carry out their investigations free
from the fear that such evidence or contraband will be destroyed.”]; Mora v. City
of Gaithersburg (4C 2008) 519 F3 216, 224 [“As the likelihood, urgency, and
magnitude of a threat increase, so does the justification for and scope of police
preventive action.”]; In re Randy G. (2001) 26 C4 556, 566 [“there is no ready
test for determining reasonableness other than by balancing the need to search or seize
against the invasion which the search or seizure entails”]. Also see P v. Troyer
(2011) 51 C4 599, 607 [“We decline to resolve here what appears to be a debate over
semantics. Under either approach [i.e., reasonableness vs. probable cause] our task is
to determine whether there was an objectively reasonable basis [for the entry].”].
NOTE: Some courts have said that officers who enter a residence to conduct a sweep
must have probable cause. But no court (to our knowledge) has actually explained why this
is so if officers merely secured the premises from the outside. There are, in fact, good
reasons for requiring only reasonable suspicion. First, securing a residence from the
outside is much less intrusive than entering and searching the premises. Thus, in ruling
that it was reasonable for officers to prevent the home’s occupant from entering, the
Supreme Court observed in Illinois v. McArthur (2001) 531 US 326, 332, the officers
“neither searched the trailer nor arrested McArthur before obtaining a warrant. Rather, they
imposed a significantly less restrictive restraint, preventing McArthur only from entering the
trailer unaccompanied.” In addition, the Court in McArthur ruled that a search or seizure
is lawful pursuant to the exigent circumstances exception to the warrant requirement if the need
for an immediate response outweighed its intrusiveness. As the Court explained, “we balance the
privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.”
This statement is plainly inconsistent with a requirement that officers must have probable cause if
they merely secured the premises from the outside. Furthermore, the California Supreme Court in
P v. Bennett (1998) 17 C4 373, 387 indicated that reasonable suspicion, not probable cause,
is required. Said the court, “Permitting police officers the limited intrusion of temporarily
prohibiting entry to a dwelling when they have a reasonable suspicion that contraband or evidence
of a crime is inside, while the officers themselves remain outside, will enable them to carry out
their investigations free from the fear that such evidence or contraband will be destroyed.”
ALSO SEE: In re Randy G. (2001) 26 C4 556, 566 [“there is no ready test for
determining reasonableness other than by balancing the need to search or seize against the
invasion which the search or seizure entails”].
[9] USSC: Utah v. Strieff (2016)
579 US 232, 246; Wong Sun v. United States (1963) 371 U.S. 471, 488.
OTHER: US v. Shrum (10C 2018) 908 F3 1219, 1227 [the officer
“took fifty-six photographs of the kitchen and bedroom from various angles”].
[10] USSC: Illinois v.
McArthur (2001) 531 US 326, 335; Washington v.
Chrisman (1982) 455 US 1, 6. CAL: P v. Breault
(1990) 223 CA3 125, 133 [officer “lawfully accompanied Emily into the house”].
9th CIR: US v. Cha (9C 2010) 597 F3 995, 1000 [officers refused
occupant’s request to enter to obtain medicine]. OTHER: US v. Shrum
(10C 2018) 908 F3 1219, 1232.
[11] OTHER: US v. Bah (6C 2015)
794 F3 617, 634 [“We are, however, troubled by the officer’s failure to inform
the magistrate judge that, prior to the warrant application, separate officers
had conducted a warrantless search of the Blackberry.”].
[12] 9th CIR: US v.
Dubrofsky (9C 1978) 581 F2 208, 213.
[13] USSC: Murray v. US (1988)
487 US 533, 540 [officers must prove that “no information gained from the
illegal entry affected either the law enforcement officers’ decision to seek a
warrant”]. CAL: P v. Koch (1989) 209 CA3 770, 788 [“if the officers
would not have sought a warrant but for their illegal observations, the taint
[of the illegal entry] would not have been purged”].
[14] OTHER: US v. Etchin (7C
2010) 614 F3 726, 737 [before other officers entered, a detective “set to work
on an affidavit”]; US v. Alexander (7C 2009) 573 F3 465,
477 [“Sgt. Kosovac directed Officer Schroedl to return to the police station to
draft a search warrant application and Schroedl already had left to do that very
thing.”].
[15] OTHER: US v. Christy (10C
2014) 739 F3 534, 543 [“evidence of steps to obtain a warrant is one way the
government might meet its burden of showing that a warrant would have ultimately
been obtained, but not the only way”].
[16] OTHER: US v. Brooks (8C
2013) 715 F3 1069, 1075-76 [FBI agent testified that the decision to seek a
warrant was based on new information that the defendant had an accomplice];
US v. Budd (7C 2008) 549 F3 1140, 1148 [“While it is true
that officers’ assurances that they would have sought a warrant are not to be
credited where the facts render those assurances implausible, in this case the
assurances were not implausible.”]; US v. Gonzalez (7C 2009) 555 F3 579,
582.
[17] OTHER: US v. Maxi (11C
2018) 886 F3 1318, 1330 [inevitable that officers would have sought a warrant
because they saw a stash of drugs in plain view when the defendant opened the
door]; US v. Soto (1C 2015) 799 F3 68, 83 [“there is little doubt that any
reasonable officer would have believed the laptop was involved in the fraud and
would have wanted to search it”]; US v. Bullard (4C 2011) 645 F3 237, 244
[strong evidence of drug sales in motel room]; US v. Gonzalez (7C 2009)
555 F3 579, 582 [“The affidavit already reflected sufficient, legally acquired,
evidence of probable cause.”].