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42 Washburn L.J. 629 (2002-2003)
Probable Cause, Reasonable Suspicion, or Mere Speculation: Holding Police to a Higher Standard in Destruction of Evidence Exigency Cases

handle is hein.journals/wasbur42 and id is 643 raw text is: Probable Cause, Reasonable Suspicion, or Mere
Speculation?: Holding Police to a Higher Standard
in Destruction of Evidence Exigency Cases
Geoffrey C. Sonntag*
An exception to the Fourth Amendment's warrant requirement that
may be established by a policeman's speculative fears can scarcely be
described as specifically established and well-delineated,  it is better
described as swallowing the rule.'
The Fourth Amendment generally requires police to secure a
warrant before conducting a search of a residence.2 However, when
there is an especially urgent need, police are sometimes able to enter
and search without first obtaining a warrant.3 Situations requiring im-
mediate action on the part of law enforcement have been termed exi-
gent circumstances,'4 and in such situations warrantless searches of
residences may be permissible.5 One type of exigent circumstance is
the threat of the destruction or removal of evidence.6 When the po-
lice fear evidence could be destroyed or removed if immediate action
is not taken, they may be justified in making a warrantless search of a
The United States Supreme Court has been surprisingly reluctant
to define the circumstances in which police may make a warrantless
search of a residence to prevent the loss of evidence. In fact, no
United States Supreme Court case has ever directly upheld a warrant-
less search of a residence based solely on the need to prevent the de-
* B.A. 2000, Washburn University; J.D. Candidate 2003, Washburn University School of
Law. I want to thank Professors Michael Kaye and Mary Ramirez, the entire staff of the Wash-
burn Law Journal, and especially Angie Gregory and Greg Graffman for their abundant help
and encouragement. I also want to thank my wife, Brooke, for seeing in me far more than I ever
see in myself.
1. United States v. Cuaron, 700 F.2d 582, 592-93 (10th Cir. 1983) (Kelly, D.J., dissenting)
(citations omitted).
2. U.S. CONST. amend. IV. The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
3. See generally Vale v. Louisiana, 399 U.S. 30 (1970) (describing the circumstances under
which a warrantless search is permitted).
4. See Illinois v. McArthur, 531 U.S. 326, 331 (2001).
5. See id.
6. United States v. Lewis, 231 F.3d 238, 241 (6th Cir. 2000). Other exigent circumstances
include hot pursuit of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42-43 (1976), and
when a suspect presents an immediate threat to officers or the public. United States v. Morgan,
743 F.2d 1158, 1162-63 (6th Cir. 1984).
7. See Vale, 399 U.S. at 34.

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