Early one morning Thomas Dempsey twice called the police insisting that "they" were trying to kill him. When Dempsey showed up at his parents' home, his parents, fearing for their safety, called the police. Officer Frank Scalise responded, and Dempsey admitted to Scalise that he had used methamphetamine within the past month and marijuana within the past week, although he denied using any drugs within the previous 48 hours.
Later, Dempsey's parents again called the police, and Officer Scalise once again responded. Scalise found Dempsey to be "paranoid, volatile, verbally abusive and physically aggressive." In fact, Dempsey had to be restrained from attacking his father. As a result, Scalise decided to take Dempsey to the hospital for an involuntary mental health evaluation. Scalise searched Dempsey and found a large knife and a bindle of what turned out to be methamphetamine. Instead of taking Dempsey to the hospital, Scalise arrested him for possession of the methamphetamine.
Dempsey moved to suppress the methamphetamine, arguing that the search violated his rights because Scalise's decision to have him examined was a pretext for a drug search, and because the search went beyond what is permitted when searching civil committees. The trial court denied the motion and Dempsey was convicted.
Holding: Officer Scalise's conduct was proper and the conviction was upheld. For Scalise to conduct a search of Dempsey before taking him into civil custody, a substantial risk had to exist that Dempsey would harm himself or others. Scalise could not use civil commitment as a pretext for a drug search. The court acknowledged that such a search, unlike a search pursuant to an arrest, requires the state to prove that the officer's actions were both objectively and subjectively reasonable. However, the court held that the evidence in the record supported the assertion that Officer Scalise's search was proper. Specifically, the court pointed to the fact that Dempsey acknowledged that he was out of control—so distraught that he called the police twice that day, his parents were sufficiently fearful for their safety that they called the police twice, all attempts by the police officers to calm Dempsey failed, and Dempsey, in fact, tried to assault his father in front of the police. Since Scalise's search of Dempsey was proper, the drugs found during the search were admissible.
The officer found a knife and methamphetamine.
The court went on to hold that Scalise's search did not exceed the limits of a search prior to civil commitment. Dempsey had argued that Scalise was limited to conducting a Terry search, which is designed to protect the officer from the detainee. The court held that a civil custody search was designed to protect the affected individuals and others. This kind of search, falling under the "emergency situation" exception to the warrant requirement, allows an officer to conduct a search "to whatever extent is objectively reasonable" to carry out this protection. Considering Dempsey's paranoid state, the court held that Scalise acted reasonably in searching for anything with which Dempsey could have done harm.
| Robert Ward, J.D. Professor New England School of Law |
Professor Ward comments: Absent the presence of a well-recognized exception, the search and seizure of a person, his home or effects, without a judicially approved warrants presumed to be unlawful under the Fourth Amendment to the U.S. Constitution. Terry v. Ohio, 392 U.S. 1 (1968). Thus, the Fourth Amendment is frequently an impediment to government officials acting efficiently to ferret out criminals or to address other circumstances which are potentially harmful. These effects are somewhat muted by the several exceptions to the warrant requirement. One of these exceptions, the emergency doctrine, was invoked by the officer, and upheld by the court, in Dempsey. See, e.g., Warden v. Hayden, 387 U.S. 294 (1967); Schmerber v. California, 384 U.S. 757 (1966); US. v. Ruhrig, 98 F.3d 1506 (6th Cir. 1996). See also Miller, Dawson, et. al. The Police Function at 268 (5th Ed.) (1991).
Under the emergency doctrine, law enforcement officials are permitted to enter one's home to search it or to search and seize an individual where there is sufficient cause to believe that a crisis situation exists. Whitebread and Slogbin, Criminal Procedure, An Analysis of Cases and Concepts § 9.01 at 202 (3d Ed.) (1993). Floods, car accidents, fires or calls to the police indicating that a person is dying or in serious harm are just a few examples of emergency situations. The rationale for allowing warrantless searches and seizures in these situations is two-fold. First, society has the right to respond to dangerous, life threatening conditions in an effort to preserve the general health, safety and welfare of its citizenry. Second, typically, emergency searches are not conducted to recover evidence of a crime but rather to abate a life endangering crisis.
To invoke the emergency exception, there must be proof that the officer or other government official believed that intervention was necessary, and that the belief was objectively reasonable. Reasonableness is a cornerstone of Fourth Amendment law. Tennessee v. Garner, 471 U.S. 1 (1985). Every search must be reasonable in its inception (the cause) and reasonable in the way it is conducted. In the context of an emergency, the search or seizure should be no broader than necessary to respond to the crisis. Warden v. Hayden, 387 U.S. 294 (1967).
In Dempsey, the court was satisfied that all of the requirements of the emergency exception had been met. It is important to note, however, that not every claim by the police of an emergency is lawful, simply because the officer says the circumstances justify taking action. Courts require that such a conclusion must be objectively reasonable. Where government officials fail to carry that burden, the evidence is suppressed.
An example of "wishing doesn't make it so," is the case of People v. Wright, 804 P.2d 866 (Colo. 1991). Ms. Wright was charged with illegal possession of drugs. The drugs were seized from her purse during a warrantless search at the hospital while she was receiving treatment for injuries sustained in an automobile accident. The trial court granted Ms. Wright's motion to suppress. The government argued that the search of the purse was legal under the medical emergency exception. The court acknowledged that medical emergencies may justify the warrant-less search of the wallet or purse of an injured person, who is unconscious or semi-conscious, to determine identity and other information which might enhance the rendering of medical assistance. However, there are two factors to be considered. One, there must be a real and immediate danger to the life or safety of another. Two, the officer's purpose must be to render aid or assistance to an endangered person.
In Wright the emergency exception did not apply because she was already under the care of trained medical personnel. Ms. Wright was conscious and coherent and fully able to disclose information useful in her diagnosis and treatment. The court concluded that the sole purpose of the officer's search was to access information he intended to incorporate into the investigative report of the auto accident. Unlike Dempsey, the crisis had passed, and with that so had the medical emergency. Once the emergency ends, so does the authority to conduct a warrantless search or seizure.
Once the emergency ends, so does the authority for a warrantless search.
The emergency exception is often invoked in the clinical setting. At times individuals who appear to be mentally ill are taken into custody for their own good. In so doing, what began as a medical emergency can almost seamlessly shift into a criminal prosecution. Often during routine searches for information which might assist a health care provider in rendering services, the police recover contraband. The question then arises as to whether it is lawful (indeed appropriate) to use the drugs or other contraband solely to assist treatment of the patient, or should the patient also be prosecuted for the possessory offense.
At some level, the key issue presented by Dempsey is whether a person who is physically or mentally ill understands that when they ask the police for help, there is the potential to have their person or home searched. Allowing evidence recovered by a search conducted in the context of a medical emergency to be used by the government for purposes of criminal prosecutions can be viewed as the state preying upon the vulnerable. Perhaps the critical issue is, are those who need assistance more likely to decline it rather than risk arrest? It is important to note that many police officers are compassionate and thus inclined to look the other way when faced with a legitimate medical crisis. However the law doesn't require that they do so and that is the risk.
