NY Landscape

When Can NYPD Enter Your Home Without a Warrant?

police without warrant

In his concurring opinion in the case of McDonald v. United States, Justice Robert Jackson says, “It is to me a shocking proposition that private homes...may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.”

As Justice Jackson and most United States citizens are aware, the 4th Amendment of the United States Constitution prohibits police from entering a private residence to make an arrest. There are however, three exceptions to this rule; a validly obtained warrant, residents consent to the entry, and exigent circumstances.

The most inconsistent of the exceptions is the classification of exigent circumstances. There are two basic criteria that must be met before the claim of exigent circumstances may be asserted; the police must have probable cause to believe that a crime has occurred or is about to occur and the suspected crime must be a felony not a violation or a misdemeanor.

That being said, there isn’t an explicit designation for which circumstances will invariably be considered exigent therefore each case must be examined individually before a determination can be made. Generally, a circumstance is considered to be exigent in New York if there is,”serious or violent nature of the offense, reason to believe the suspect is armed, probable cause, reason to believe the suspect is in the location that is to be entered, and/or likelihood that the suspect will escape.”

One of the few cases which allows entry into a home for less than a felony charge is the crime of driving while intoxicated if the arrest is a continuation of the uninterrupted pursuit of the suspect and the arrest is necessary to prevent the destruction of evidence, specifically blood alcohol level.

The exception of exigent circumstances permits a warrantless arrest in certain situations when it is impossible to obtain an arrest warrant in a timely manner without the immediate likelihood that evidence will be damaged or destroyed, or that the suspect will escape. Fortunately, the Courts consistently express that the exigent circumstances in relation to home entry should be reserved for situations where there is probable cause of a felony crime and sparingly used for minor offenses.

If you feel you have been the subject of an illegal home search by NYPD, contact PetersonDelleCave LLP at (212) 240-9075.

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