Massachusetts Exigent Circumstances exception to warrant requirement clarified, also “community caretaking”

In the recent case Commonwealth v. Kirschner the Massachusetts Court of Appeals clarifies the “exigent circumstances” exception to the 4th Amendment search warrant requirement (aka the “emergency” exception). The Court wrote that “the injury sought to be avoided must be immediate and serious, and the mere existence of a potentially harmful circumstance is not sufficient.” In this case, the police observed a burned marijuana roach on a porch table and numberous bottles of alcohol inside the kitchen of a house.

The judge concluded that the officers were entitled to enter the house under the emergency exception to the warrant requirement, reasoning that it would have been irresponsible to leave the house without clearing it of its occupants and securing it, and that the presence of illegal drugs and evidence of heavy drinking raised the possibility that one or more of the occupants was in medical distress.

We see this kind of crap all the time. The search occurred on the 4th of July, after the officers responded to a complaint of fire works being set off in the neighborhood. Here is what the Mass. App. Ct. had to say about the Judge’s conclusion:

We think, however, that where Kirschner had informed the police that everyone inside the house was an invited guest, the interior of the house was entirely dark and quiet, and there was no indication that anyone was in acute medical distress, the police had no reasonable basis to believe that there was imminent and serious danger to persons or property requiring immediate action.

The case also addresses the “circumnavigation” (the motion judge’s word) of the house by the police. In short, they say that the police can’t just walk through your back yard because there may have been naughty people back there sometime in the indeterminate past.

There is also a great footnote (no. 7) that blows away another of the motin judge’s justifications for this bogus search:

The judge also characterized the entry as an exercise of law enforcement’s “community caretaking” function, citing to cases in which police officers have been permitted to check on the well-being of parked motorists. . . . This line of cases is not apt, however. Absent a true emergency– involving imminent, serious danger–there is no justification for the warrantless entry into a residence to check on the persons inside.

The motion judge’s written decision denying the motion included the statement that the actions of the police officers “may trouble the Fourth Amendment”, but that they “do not offend it.” This type of arrogance is rarely put in writing, but I believe it is not rarely displayed by District Court Judges in Massachusetts. It is gratifying that the Appeals Court so clearly told the Motion Judge that his decision not only troubles the Fourth Amendment, but, without a doubt, offends it.

This case is going to go into my briefcase, and will go to court with me every day. though it is short, it has some very good language on warrantless searches of residences. I find the following particularly interesting:

A warrantless search for investigatory purposes is justified when “[p]robable cause and exigent circumstances … coalesce.” however, more than a minor crime must be involved to justify the warrantless intrusion into a private residence.

The opinion then cites cases that held unjustifid 1) police entering the home of a suspected drunk dirver who recently caused an accident, and 2) entry into an apartment on a complaint that loud music was being played. So not just any old crime will get the police into a house. It has to be serious. Seems that disturbing the peace and even drunk driving are not serious enough.

Kirschner is a clear message to the trial courts to take the 4th Amendment seriously. It is the message that we defense lawyers have been delivering consistently. Hopefully, this one will be heard.