Look Here: 4th Amendment Musings

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Drug Charge 4th Amendment Issues: Imminent Destruction of Evidence
Tuesday, December 6th, 2016
Look Here: 4th Amendment Musings - Dec2016

Increasingly, police are using the “imminent destruction of evidence” justification for warrantless entry into residences in drug cases.1 At the outset, it is important to remember that in order to rely on this exception, the police first must have probable cause—no PC, no exception.2 If probable cause exists, the State must still show that the destruction of evidence was imminent in the present case.

Specific Instances Required; Generalizations Insufficient

Specific, affirmative acts evidencing imminent destruction in the case at hand are required to support warrantless entry into a residence. Mere generalizations about the way people in possession of contraband behave when encountered by police (“in my training and experience . . .”) are insufficient.3

So for example, it is insufficient if an officer simply testifies that in his experience, persons in possession of drugs often destroy them unless supported by actual, affirmative acts in the present case evidencing imminent destruction.4 Likewise, testimony that in the officer’s subjective experience, persons in possession of drugs tend to react violently when encountered by police is also insufficient, unless there is specific evidence of this in the present case.5 And, that the specific drug at issue is capable of being easily destroyed—cocaine, for example—is not evidence that it faced imminent destruction in the present case without some affirmative act evidencing imminent destruction.6

Absent the sound of a toilet repeatedly flushing, or the garbage disposal running, police often use sounds of human movement they allegedly hear from inside the residence as evidence that contraband is being destroyed. However, sounds of human movement, without more, generally require too far a logical leap to evidence imminent destruction of contraband. For example, the smell of contraband and the sound of movement, shuffling, or even someone running up the stairs after police knock on the door is generally insufficient to establish that the destruction of evidence was imminent.7

Exigencies Are Reserved for Grave Circumstances, Not Inconvenience

As a final note, it is often worthwhile to remind courts that exigencies are reserved for grave circumstances, not convenience.

When exceptions to the warrant requirement for entry into a citizen’s home are discussed, it is abundantly clear that such exceptions are reserved for only the gravest circumstances:

This is not a case where officers, passing by on the street, hear a shot and cry for help and demand entrance in the name of the law. They had been following McDonald and keeping him under surveillance for two months at [his residence] . . . [N]o reason, except inconvenience of the officers and delay in preparing papers and getting them before a magistrate appears for the failure to seek a search warrant.8

The clear import of the McDonald court’s language is that because warrantless entry into the home is, indeed, the “chief evil” against which the Fourth Amendment protects us, exceptions to its protection are not be treated lightly:

[A]bsent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.9

Thus, the seriousness of the criminal conduct at hand is relevant and worthy of consideration in instances where police have entered a home without a warrant or consent. Some level of proportionality is required: Criminal operations which do not “endanger life or limb” or the “peace and good order of the community even if continued for another day or two” generally will not justify warrantless entry.10

Such mala prohibita as mere possession would seldom rise to the level of “grave emergency,” with the possible exception of a violation of Health and Safety Code sections 481.10 (“Use of a Child In the Commission of an Offense”) and 481.141 (“Manufacture/Delivery Causing Death or Serious Bodily Injury.”)


1. See Turrubiate v. State, 399 S.W.3d 147, 151 (Tex.Crim.App. 2005)(for discussion on imminent destruction of evidence as exception to warrant requirement).

2. See, e.g. id.; Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007).

3. Turrubiate v. State, 399 S.W.3d (“a court should not presume, therefore, that a showing that an occupant possessed contraband and that an officer with probable cause knocked and announced himself also shows that destruction of evidence was imminent”).

4. Id.; see also Price v. State, 93 S.W.3d 751 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d.)(“the police should have at least some specific facts to the case at hand that would justify their [warrantless entry predicated on imminent destruction of evidence] . . . the police did not see appellant engaged in the act of destroying evidence, nor had they witnessed any specific act suggesting destruction was imminent”).

5. See, e.g. Davila v. State, 441 S.W.3d 751 (Tex.App.—Houston [1st Dist.] 2014, pet. ref’d.)(appellant appeared “nervous and in a hurry” and had “known associates nearby”).

6. Grimaldo v. State, 223 S.W.3d 429 (Tex.App.—Amarillo 2006)(“an officer’s statement that he simply relied on his experience and training to arrive at the conclusion [that evidence was likely to be destroyed] does not fill the void”).

7. See, e.g. Johnson v. United States, 333 U.S. 10 (1948)(holding unlawful entry into residence premised on imminent destruction of evidence when police went to room based on tip about drug use inside, smell of opium emanating from room, delay in answering door, and sound of shuffling inside after police knocked); Laysone v. State, No. 12-14-00050-CR (Tex.App.—Tyler, July 23, 2014)(memorandum opinion)(not designated for publication)(holding smell of marijuana from inside residence, observation of marijuana inside residence, and sound of footsteps running up the stairs after knocking insufficient to justify warrantless entry into residence premised on imminent destruction of evidence); English v. State, 647 S.W.2d 667 (Tex.Crim.App. 1983)(en banc)(holding warrantless entry into home to search for robbery suspect premised on “bumping, banging, or rustling” from inside apartment does not create exigency premised on imminent destruction of evidence).

8. McDonald v. United States, 335 U.S. 451, 455 (1948).

9. Id.

10. Id. at 459–60.