The existence of exigent circumstances is one of the few exceptions to the Fourth Amendment requirement for a search warrant prior to any search or seizure. However, once the exigency is no longer present, a warrant is needed to continue the search. In UnitedStates v. Mallory, (13-2025), the Third Circuit considered what factors demonstrate that the exigency has subsided.
In the early hours of the morning, officers were responding to a dispatch call concerning a group of men standing outside a four-story home; the group allegedly included a hooded individual armed with a gun. The home belonged to Kamaal Mallory’s stepmother. While outside of the house, Mallory was speaking with a police officer when they noticed a weapon in his waistband. Appellant ran into the house and shut the door; officers pursued. Officers cleared the home and the family members were ordered to wait outside under supervision of an officer. The police then searched the home for Mallory and the weapon. He was eventually found hiding in a locked bathroom, was placed under arrest, and handcuffed. While escorting appellant outside, officers searched another section of the home and found a revolver. Mallory filed a motion to suppress the gun, which was granted by the trial court. The Government appealed.
Initially, the appellate court addressed a few procedural issues. First, Mallory challenged the appellate court’s jurisdiction to review the appeal arguing that the Government had failed to file a timely certification with its notice of appeal, as required by 18 U.S.C. §3731. He further argued that the corrected certification was filed out of time. The Third Circuit held that the clock begins ticking on the day an order is entered on the docket, not the day the decision is rendered. Therefore, the appeal was timely because the error was corrected within the thirty day timeframe provided for in §3731. Next, the circuit court determined that the proper standard of review for deciding the presence or absence of exigent circumstances is clear error for factual findings, but de novo review for deciding if those facts created a legal exigency justifying the warrantless search. The Third Circuit further explained that exigent circumstances are reviewed under an objective standard, not based on the subjective intent of the officer.
When determining if the warrantless search is justified, a court may consider, but is not limited to, the following factors: (1) the time that passes between the offense and the search; (2) the nature of the offense; (3) whether the search occurred prior to or at the same time as the suspect’s apprehension; (4) if the premises/scene is secure; (5) whether there are other individuals in the house/on the scene that are unaccounted for; (6) whether the suspect or anyone present is being aggressive or otherwise threatening to the officers; (7) whether anyone present could reach and use the weapon; and (8) the intrusiveness of the search. Based on these considerations, the Third Circuit held that in Mallory’s case, the exigency had passed and a warrant was required to continue any search of the house. Mallory had been arrested and the house was secure; the family members were outside under the watch of other officers; after the initial flight, Mallory did not resist arrest when officers found him hiding in the bathroom; and there was no evidence that the family knew where the gun was or was going to move the weapon. Therefore the exigency had passed with the intervening arrest and securing of the house, and the officers should have secured a warrant before searching further for the gun. The Third Circuit upheld the suppression of the weapon.