Exigent circumstances can be defined as "[t]hose circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984).

Exigent circumstances may excuse failure to make an announcement or to wait for the occupant to refuse entry, according to United States v. Mendonsa, 989 F. 2d 366, 370 (9th Cir. 1993). The existence of exigent circumstances is a mixed question of fact and law reviewed de novo.

What Qualifies as Exigent Circumstances?

A search is reasonable, and a search warrant is not required, if all of the circumstances known to the officer at the time would cause a reasonable person to believe that entry or search was necessary to prevent:

  • Physical harm to the officer or other persons.
  • The destruction or concealment of evidence.
  • The escape of a suspect.

When Can Officers Break Into a Residence?

The federal "knock and announce" statute, 18 U.S.C. S 3109. Section 3109 requires "police officers [to] knock, announce and be refused entry before they break into a residence. Exigent circumstances excuse noncompliance." United States v. Turner, 926 F.2d 883, 886 (9th Cir.), cert. denied, 502 U.S. 830 (1991). Specifically, the court found that immediate entry was necessary "for [the officers'] protection and the protection of others inside as well as to prevent the destruction of any drugs in defendant's possession or in the home."

A simultaneous, no-refusal entry is permissible if at least "mild exigent circumstances" were present. See United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc), which says "mild exigency is sufficient to justify simultaneous knock/announce and entry if entry does not require physical destruction of property." cert. denied, 469 U.S. 824 (1984).

Another example of this can be found in United States v. Whitney, 633 F.2d 902, 909 (9th Cir.'80), which says "only a mild indication of exigency is required to excuse noncompliance with the `refusal of admittance' requirement of section 3109.", cert. denied, 450 U.S. 1004 (1981).

When police have a reasonable and sincere fear that someone is in jeopardy and contraband might be destroyed, this usually constitutes sufficient exigency to justify a simultaneous, no-refusal entry. See McConney, 728 F.2d at 1206; Whitney, 633 F.2d at 909-10.

Exigent Circumstances and the Government

Exigencies created by the government cannot be the basis for excusing compliance with the warrant requirement. See, e.g., United States v. Hackett, 638 F.2d 1179, 1183-85 (9th Cir.'80), cert. denied, 450 U.S. 1001 (1981); United States v. Curran, 498 F.2d 30, 34 (9th Cir.'74). The rule has been applied only in cases where exigencies arose "because of unreasonable and deliberate [conduct] by officers," in which the officers "consciously established the condition which the government now points to as an exigent circumstance." See, e.g., Curran, 498 F.2d at 34 (emphasis added); Hackett, 638 F.2d at 1183; United States v. Calhoun, 542 F.2d 1094, 1102-03 (9th Cir.'76), cert. denied, 429 U.S. 1064 (1977). "An honest miscommunication is not a case where the government purposely tried to circumvent the requirements of section 3109." Cf. Hackett, 638 F.2d at 1184-85; Curran, 498 F.2d at 33-34.