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Craig Mastantuono Dec. 5, 2012

When can police enter someone’s home without a warrant? This question comes up regularly in criminal justice cases, and the answer depends on the circumstances. Generally, police cannot enter a home without a search warrant, but exceptions to that rule exist. Challenges to a police searches/seizures are litigated in our courts, which have the authority to declare searches unconstitutional, and suppress (or throw out) evidence obtained as a result of an unconstitutional search.

In a written decision issued last week, the US Court of Appeals for the 7th Circuit (WI,IL,IN) ordered evidence suppressed that was seized by Milwaukee Police during a warrantless search of an apartment. In the case, police were called to an area on Milwaukee’s south side to investiagte report of gunshots fired. Their investigation took them to the apartment door of the eventual defendant in the case, Luis Delgado. Mr. Delgado came to the door with another person, Mr. Aviles, who was wounded slightly by a gunshot graze. Police arrested Mr. Delgado for suspected commission of a crime. They then searched his apartment without a warrant, and found antique rifles and three shotguns in a bedroom closet in the apartment. (these were not used in the suspected shooting, and Mr. Delgado was not ultimately accused of the shooting). Since he was previously convicted of a felony, it was unlawful for Mr. Delgado to possess firearms, and he was prosecuted in federal court in Milwaukee. He challenged the warrantless search of his apartment, requesting that the guns not be allowed to be used as evidence in the case against him, as they were unlawfully seized. The District Court denied the challenge, and the defense appealed.

On appeal, the government argued that exigent, or emergency, circumstances justified the officers’ entry and search of the apartment without a warrant for the person responsible for Aviles’ wound. Warrantless searches, particularly of a residence, are generally considered to be a violation of the 4th Amendment to the US Constitution, unless an exception applies. One exception can be when emergency circumstances exist and there is no time to obtain a warrant. Emergency circumstances may exist when a search or seizure is necessary to prevent imminent injury to someone. However, in this case, the Circuit Court three-judge panel found that no emergency or life-threatening facts existed to justify entry and search of Delgado’s apartment once he was arrested. “It is unreasonable to believe that, faced with such life-threatening danger, both the shooting victim and Delgado would leave the apartment with nary a word or any expression whatsoever indicating that the shooter was just over their shoulder or that they were within seconds of being killed,” wrote Judge Ann Claire Williams for the panel.

In a concise assessment of the facts and a frank rejection of the government’s argument that exigent circumstances existed, Judge Williams stated “[t]he mere fact that the shooter was generally at large is not enough for a reasonable officer to specifically believe that he was in the apartment.” The full decision can be found here.

The Delgado case provides further guidance regarding warrantless searches and emergency circumstances. We think defense counsel did a fine job litigating the issue, and that the 7th Circuit got this one right. Mastantuono Law Office has written and conducted trainings for other lawyers on 4th Amendment law. We also find that the subject of police authority and citizens’ rights comes up often in conversations with the general public and our clients. Our outline on the subject can be found here.