Will New York Get a New Emergency Exception?


The police need a warrant to search your home.  Except when they don’t.  The warrant requirement of the Fourth Amendment is there to protect your privacy, and sorry, but sometimes your privacy isn’t the most important thing at the moment.

One exception to the warrant requirement is the Emergency Exception.  In a nutshell, it says the police are allowed to go into your home without a warrant when there is good reason to believe that someone inside is seriously hurt, or in danger, and needs their assistance right away.

Different states define the rule in different ways.  In New York, the rule was set in 1976 in the Mitchell case.  Mitchell has two objective conditions, and one subjective condition.  If all three are met, then the police are allowed to go in without a warrant.

Objectively, the circumstances have to be such that a reasonably prudent officer would have thought there was an emergency at the time.  Objectively, the officers on the scene had to have probable cause to believe that there was an emergency inside the house.

Subjectively, the officers had to actually be going inside to help.  They couldn’t be using the emergency as a pretext to really look for drugs, for example.

So far, so good.  Sort of.

One problem is that there is no requirement here that the police actually believe there is an emergency.  There is no subjective requirement that the police on the scene be aware of the circumstances that would lead a reasonable person to think there was an emergency.  There is no subjective requirement that the police on the scene actually think there’s an emergency.

That’s not a huge problem under the Mitchell rule, because the no-pretext prong sort of implies that the police need to subjectively believe there’s an emergency.

But what happens if you take away that no-pretext prong?  You get an absurd rule.  Police who did not themselves believe there was any emergency could still go in without a warrant — and hope that some clever prosecutor down the road can come up with a scenario where an objective cop, aware of all the circumstances that the police themselves might not have been aware of, might have thought there was an emergency.  And if you think no New York police officer would break down your door in the hopes that it can get justified down the line (if your case even gets that far)… well, the word “naive” springs to mind.

Well, guess what?  Back in 2006, in its Brigham City decision, the U.S. Supreme Court specifically rejected the no-pretext prong of the Mitchell rule.  The Court was being true to its 15-year trend of rejecting subjective rules in federal Fourth Amendment law.  The Supreme Court line of cases does not care whether the police had some pretext or ulterior motive.  So long as there was some legitimate basis for the police conduct, they don’t really care what the police themselves were thinking.

But New York hasn’t had to deal with the issue though.  Not, that is, until a case we argued earlier this year.  


This January, we found ourselves before the Second Department one month after the Supreme Court had reaffirmed its Brigham City reasoning in an Emergency Exception case, Michigan v. Fisher, decided last December. 

In an unusually lengthy argument — the panel simply disregarded time limits, and let both sides argue for well over an hour — we found ourselves being asked by the panel what the new New York rule ought to be.  At first, we tried to suggest that no new rule was needed here, and anyway that was a job for the Appellate Division.  On seeing some raised eyebrows, however, we quickly gave the panel our thoughts.

It’s pretty straightforward, if you ask us.  The police who are entering the home can’t be protected by the Emergency Exception unless they themselves thought there was an emergency.  Based on the circumstances actually known to them at the time, they had to have honestly believed that someone inside the home was in dire need of their assistance. 

So we’d have a subjective test that does not have anything to do with pretext:

1) The police must subjectively believe that there is an emergency inside the premises.

2) That belief must be objectively reasonable, based on the facts known to the police at the time.

That’s all that’s really needed.  And that’s essentially what we argued.

And yet…

It is now the middle of July, and still no decision.  Just for context, most appeals before the Second Department have an opinion within weeks.  And even the most complex cases we’re aware of there still have had an opinion within a couple of months.  We’re at six months and counting…


When a decision is this long in coming from the Second Department, you know they’re wrestling with something.  Maybe it’s the facts of the case.

The facts are actually kind of neat.  Our client was in the hallway of the apartment building where he was staying.  In front of his door, before he’d been able to open it and go inside, he was stabbed in the neck by an assailant.  The assailant ran downstairs, and our client ran upstairs to get help.  Police came and found our client a couple of floors up, and he gave them a good description.  Officers quickly arrested the assailant at a nearby subway platform, found him with a backpack full of weapons, and took him back to be identified.  Our client was in an ambulance at this time, and positively ID’ed his attacker from inside the ambulance.  The attacker went  to jail, and our client went to the hospital.

Once everything was over, the police hung around.  They wanted to go inside the apartment where our client had been staying.  They sent the super to get the keys, and waited several minutes till he came back and opened the door for them.  There was some blood spatter on the door, but the cops didn’t have any reason to think that anyone was inside.  Inside they found stuff and left to get a search warrant.  They told the warrant court that they’d followed a blood trail directly from our client to the apartment and went right in, which wasn’t what had happened at all.

At the suppression hearing, the judge simply could not credit the police testimony.  It was so obvious to everyone that they were making stuff up — poorly — that the hearing was almost a farce.  To make matters even more farcical, the prosecutor’s theory of the case kept changing.  They brought in another prosecutor to argue the law stuff, who came up with yet another theory of the case.  The suppression judge didn’t buy any of it, and threw the evidence out.  The People appealed, and that’s how we found ourselves arguing for a new Emergency doctrine for New York.

On second thought, it’s probably not the facts.  The court has to be struggling with crafting a new law that will withstand appeal.  Because it’s a sure thing that, whoever wins this one, the other side is going to take it to the Court of Appeals.

So should the law be that the cops don’t necessarily need to subjectively believe there’s an emergency, so long as some objective person with full knowledge would have believed there was one (the People’s position)?  Or should the cops need a subjective belief that is also objectively reasonable (our position)?  Or should the law be something else entirely?

What do you think?

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