Bench Memos

Law & the Courts

En Banc Fourth Circuit Divides Sharply on Fourth Amendment ‘Exigent Circumstances’

In a ruling yesterday in United States v. Curry that ought to earn careful attention from the Supreme Court, the en banc Fourth Circuit divided sharply along ideological lines on the substance of the Fourth Amendment’s “exigent circumstances” doctrine. On initial review, I think that the dissent clearly has the stronger position.

I’ll discuss in this post the divide between the nine-judge majority, authored by Judge Henry F. Floyd, and the six-judge dissent, written by Judge Julius N. Richardson. In a follow-on post, I’ll discuss the separate solo dissent that Judge J. Harvie Wilkinson issued (on top of joining the main dissent) and the fireworks that it elicited from some members of the majority.

There is, I think, basic agreement between the majority and the dissent on the facts, even if they present them somewhat differently. Here is the majority’s summary in its opening paragraph:

The police seized Curry after responding to several gunshots that were fired in or near an apartment complex less than a minute earlier. When the police arrived, they encountered five to eight men—including Curry—calmly and separately walking in a public area behind the complex, away from the general vicinity of where the officers believed the shots originated; several other people, likely visitors or residents, standing around closer to the apartments; and another man walking toward the rear of the officers’ patrol car, who appeared to be favoring one of his arms.

And here is the dissent’s opening paragraph:

On a summer night in Richmond, Virginia, several gunshots rang out in a residential neighborhood. That neighborhood, unfortunately, was no stranger to gun violence, with six shootings and two homicides over the prior three months. Upon hearing the clatter of gunfire, four uniformed, patrolling police officers froze, turned toward its source, and sped to the scene. They arrived 35 seconds later, finding half-a-dozen men spread out near the site of the shots and catching a glimpse of a potential victim. The officers fanned out, instructing the men to stop, to raise their hands, and then to lift their shirts to expose their waistbands. Flicking on flashlights, the officers looked on from a short distance, checking for weapons. Only one man, Billy Curry, refused the officers’ instructions. That refusal led to an attempted pat down—and the discovery of Curry’s silver revolver.

Where the majority and the dissent divide is over the contours of the Supreme Court’s exigent-circumstances doctrine under the Fourth Amendment. Under that doctrine, a search warrant is not required in exigent circumstances. But what circumstances qualify as exigent?

According to the majority, while the exigent-circumstances doctrine “may sound broad in name, it is subject to important limitations and thus is quite narrow in application.” In particular, exigent circumstances “typically only justify ‘the warrantless entry and search of private property,’ usually a home.” Further, in the “relatively few cases that purport to extend the exigent circumstances doctrine to suspicionless, investigatory seizures of a person .…, officers typically have searched for a suspect implicated in a known crime in the immediate aftermath of that crime, and—per that objective—have isolated a geographic area with clear boundaries or a discrete group of people to engage in minimally intrusive searches.”

The dissent argues that the majority’s “sweeping decision … guts the exigent-circumstances doctrine and handcuffs law enforcement’s response to possible active-shooter situations” and, above all, “resoundingly conflicts with the Supreme Court’s Fourth Amendment jurisprudence”:

The Supreme Court applies a two-step inquiry that threads the needle between arbitrary government action and reasonable responses to exigencies. First, the Court asks whether officers could reasonably suspect a legitimate exigency. If so, it then inquires whether officers responded to the exigency in a reasonable manner: a context-specific inquiry considering the gravity of the exigency, the tailoring of the officers’ response, and the extent to which that response interferes with individual liberty. [Citations omitted.]

The dissent further argues that the majority’s “categorical limitations” on the exigent-circumstances doctrine are unsound: the doctrine does not hinge on whether there is a “known crime,” but rather on “the nature of the threat (criminal or not) to broader public interests.” Nor does it “impose a one-size-fits-all tailoring requirement in terms of time, space, or people”:

What caselaw teaches, common sense affirms. Say law enforcement learns of a shooting in one of several buildings in a complex. Under the majority’s rule, the officers would be constitutionally prohibited from stopping and demanding raised hands from fleeing individuals just because the police have doubts about who to search (so no “discrete group”) and have no ability to cordon off all modes of egress (so no “controlled area”). Wouldn’t it be reasonable for officers to do what they can to respond as the situation evolves?

What if gunshots erupt during a crowded marathon? Today’s opinion will prevent officers from simply instructing individuals to raise their hands. Unless, of course, they can pinpoint a discrete group or exert control over the entire area.

Or take the apparent sounds of shots being fired at a music festival with thousands in attendance, abundant modes of egress, and only so many officers operating with only so much time. That scenario presents neither a “controlled geographic area” nor a “discrete group of people.” Must the officers sit on their hands until enough backup arrives to cover all the exits and establish a secure perimeter?

I’ll add that it seems very odd that the majority’s understanding of the exigent-circumstances doctrine would give less protection in the home than elsewhere.


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