SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

gate, was lawful when the officer observed, in plain sight, a cocked
revolver on the ground at the side of the house. The necessity to retrieve
the weapon, for safety purposes, allowed for the entry of the side yard.
Securing the Premises pending the obtaining of a search warrant:
Fourth Amendment: The securing of a residence by police, pending the
obtaining of a warrant, is subject to Fourth Amendment protections.
(United States v. Lindsey (9 th Cir. 1989) 877 F.2 nd 777, 780.)
General Rule: Where police officers are already at a residence without a
warrant when evidence is lawfully discovered (e.g., by a plain sight
observation), the discovery of which provides probable cause to search the
rest of the residence, but when any other evidence in the house is likely to
disappear or be destroyed while a search warrant is obtained (i.e., an
“exigency;” see People v. Superior Court [Irwin] (1973) 33 Cal.App.3 rd
475.), the officers have three options:
Seize only that which is in plain sight, and ignore what might be
found in the rest of the house.
Seek consent to search the entire residence from the residents.
(See “Consent Searches,” below)
Secure the residence (i.e., detain its occupants and guard the
house) pending the obtaining of a search warrant. (See below)
Exigency of the Officers’ Own Making: The old rule was that although a
police officer may, with exigent circumstances, enter and secure a
residence (or other protected place) pending the obtaining of a warrant or
consent to search, the law did not allow a warrantless entry and securing
of the premises if the exigency was of the officers’ own making.
© 2012 Robert C. Phillips. All rights reserved
E.g.: Officers, with probable cause which would have justified the
obtaining of a search warrant, but hoping to obtain an oral consent
to search instead, knock on the front door only to be told by the
occupants that admission is being denied. The fact that evidence
may now be destroyed, etc., while a warrant is obtained is not an
excuse to make a warrantless entry to secure the house. (People v.
Shuey (1973) 13 Cal.App.3 rd 835; see also United States v. Driver
(9 th Cir. 1985) 776 F.2 nd 807.)
The continuing validity of Shuey and Driver is
questionable in light of the new United States Supreme
Court decision in Kentucky v. King (May 16, 2011) __ U.S.
__ [131 S.Ct. 1849; 179 L.Ed.2 nd 865]. See below.
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