Muldoon, Getz & Reston

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The public safety exception in practice
By: Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

The public safety exception, also called the emergency doctrine, can arise with warrantless searches as well as obtaining statements from a defendant without Miranda warnings. Thus, it is an exception to the Fourth and Fifth amendments.

Statements

Police officers, principally to protect their own safety or that of the public, and not for the purpose of eliciting incriminating information, may ask a suspect, immediately after apprehension, to divulge the location of a weapon.

As the Supreme Court has stated, “the need for answers to question in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination,” New York v. Quarles, 467 US 649 (1984); People v. Johnson, 46 AD3d 276 (1st Dept. 2007); see also, People v. Gucla, 18 AD3d 478 (2d Dept. 2005); In re Cy R., 43 AD3d 267 (1st Dept. 2007); US v. Estrada, 430 F3d 606 (2d Cir. 2005).

Warrantless searches

A warrantless search may be justified if three criteria are met: the police must have reasonable grounds to believe an emergency exists and an immediate need to protect life or property; the search must not be primarily motivated by an intent to arrest and seize evidence; and there is some basis, approximating reasonable cause, to associate the emergency with the area to be searched, People v. Mitchell, 39 NY2d 173 (1976); People v. Krom, 61 NY2d 187 (1984); People v. Dallas, 8 NY3d 890 (2007); People v. Doll, 98 AD3d 356 (4th Dept. 2012).

Subjectivity irrelevant

However, the subjective intent of police need no longer be considered, at least federally. Brigham City, Utah v. Stuart, 547 US 398 (2006); People v. Rodriguez, 77 AD3d 280 (2d Dept. 2010); but see People v. Desmarat, 38 AD3d 913 (2d Dept. 2007); People v. Garrett, 256 AD2d 588 (2d Dept. 1998); People v. Rodriguez, 77 AD3d 280 (2d Dept. 2010); People v. Mitchell, supra.

Scope of the exception

The public safety exception is to be narrowly construed, as it is susceptible to abuse, see People v. Liggins, 64 AD3d 1213 (4th Dept. 2009). But police do not need ironclad proof of a likely serious life-threatening injury to invoke the exception, Michigan v. Fisher, 558 US 45 (2009) (“emergency aid exception”).

For example, where the defendant was charged with drug possession, warrantless entry was not justified by exigent circumstances where the alleged victim reported that she had been raped, there was no indication that defendant was armed, and no indication that defendant would have escaped if not swiftly apprehended, People v. Kilgore, 21 AD3d 1257 (4th Dept. 2005).

The exception may be inapplicable in a prison context, such as a strip frisk, the very purpose of which is to seize a weapon, People v. Hope, 284 AD2d 560 (3d Dept. 2001). See People v. Gause, 50 AD3d 1392 (3d Dept. 2008) (harmless error).

Where there is a fire, officials may enter without a warrant and remain for a reasonable time to investigate, but once those duties are completed, further searches are subject to the warrant requirement, People v. Christianson, 57 AD3d 1385 (4th Dept. 2008). See also People v. Molnar, 98 NY2d 328 (2002).

© 2013 by Gary Muldoon