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Balancing Exigency and Privacy in Warrantless Searches to Prevent Destruction of Evidence: The Need for a Rule (From Criminal Law Review - 1989, P 19-70, 1989, James G. Carr, ed. -- See NCJ-121027)

NCJ Number
B C Salken
Date Published
52 pages
This article discusses the need to prevent the destruction of evidence and the fourth amendment's requirement that searches be conducted subsequent to the issuance of a warrant, pointing out the confusion created by the several approaches taken by Federal courts on this issue and proposing a uniform rule for permitting police to conduct a warrantless entry to prevent destruction of evidence.
The fourth amendment requires that searches and seizures be conducted pursuant to warrants issued by neutral and detached magistrates upon a showing of probable cause. An exception to the requirement is permitted for exigent circumstances requiring immediate police action, and a warrantless search to prevent destruction of evidence falls under the exigent circumstances exception. However, the courts do not evaluate claims of exigency in a uniform manner, and the confusions created by the several methods of evaluation are discussed in detail. A uniform rule is proposed that would authorize warrantless searches in the following specific limited circumstances: (1) police have probable cause to believe the private premises to be searched contains evidence of criminal activity; (2) the police can provide and articulate specific facts to support their reasonable suspicion that the evidence would be destroyed before they could obtain a warrant; (3) the circumstances giving rise to the threatened destruction of evidence are not avoidable or created by the police officers; and (4) the invasion of the suspect's fourth amendment rights is no greater than the circumstances require to prevent the destruction of evidence until a warrant can be obtained. 227 footnotes.