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Old 2 October 2018, 09:47
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Missing 16-year old call/exigent circumstances

The other day we had a frantic mother call reporting her son missing for more than 24 hours. She explained he had left through his window, did not have his phone, off his depression/ADHD meds, attempted suicide in the past (not one of those cry for help ones, either).

She explained that he was last seen in a video on Facebook with some kids that live locally inside our jurisdiction. These kids/parents are regularly arrested for dangerous drugs (heroin, PCP, etc); the kids do these drugs with their parents regularly. A fact that is very easily articulated with past reports or CFS’s. The kid that took the video the missing juvenile was in just got out of the DH for being arrested by a different county agency for assault on a Peace Officer and some type of possession of firearms conviction.

Only having two guys on per shift I sent the other Officer on with me to the house where he was last seen in the video with orders to observe the home while I collected more info. It was close to shift change so once the other two Officers got on shift I sent them over and told them to ask the residents if the kids was there and if they said no, I would RP with them to enter the home without a warrant and look for the kid. I believed we had exigent circumstances, being there was a strong possibility the kid’s life was in danger (insert a million articulable possibilities with the missing kid’s history and the drug using families history).

One of the other Officers (I’ll call him Jim) that come on for the next shift has been a Policeman for a long, long time. He’s part time, but I obey and respect his orders because of his experience even though technically I was still the “OIC” because full-time. I explained all the above info to him, and showed him the video mom showed me from Facebook.

Jim told me we did not have exigent circumstances to enter the home. The family of the home of course said we could not enter to look for the boy.

* Forgot to mention the video was posted to Facebook 2 hours before mom called.

I went with Jim’s advice and had the other 3 Officers (including Jim) watch the home while I started working on a search warrant. About 20 minutes later the boy was found hiding in a car near the property.

My question to anyone here: did we have exigent circumstances working in good faith to locate a missing juvenile with his and the people he was hanging out with’s history? Jim said after it was all over that he saved my “ass from getting sued and loosing everything.”

Jim could very well be right, I did not argue (I guess I did a little) his opinion or decision. Just curious what you guys thought. Had it been my kid, I would have walked right inside that house regardless if that family let me in or not. I formulated my opinion of exigent circumstances to the situation on that. Would a jury/judge really allow a Peace Officer to be found negligent looking for a seriously at risk teen missing for 24 hours? I would have absolutely violated that family’s 4th amendment. But, if the kid had his phone I would have violated his 4th amendment right by pinging his phone to find his location..
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Last edited by 256; 2 October 2018 at 09:58.
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Old 2 October 2018, 10:04
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I look at Police desisions regarding the 4th amendment like so: Police Officer’s are not judged on being right or wrong, they are judged on what a “reasonable Officer” would do. IE Graham v Connor
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Old 2 October 2018, 10:14
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Part time/full time/lunar time, IMHO, I would trust " Jim " a lot more often in the future.
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Old 2 October 2018, 10:20
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It might depend on your AO but here in Georgia we can request the phone companies ping the cell phone if we can articulate that person is in danger. A missing juvenile with the circumstances you described would certainly fall under that umbrella.

As far as entering the third-party shithole residence, you might find yourself in a lawsuit. In that situation I'd request permission to search the house then when refused explain the charges they would be facing if/when I return with the search warrant. I wouldn't be using the threat of charges as leverage, just explaining to them that they were in a heap of shit for contributing the the delinquency of a minor.
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Old 2 October 2018, 10:32
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I'm not LE, so my input may be invalid.

What information did you collect during your time observing that escalated the situation to an exigent circumstance? If nothing occurred during the course of your observation that changed the circumstance of the situation, then IMO, you've shown that there were no exigent circumstances to begin with...had there been, you would've already entered the home. If you didn't deem the circumstances exigent when you set up your observation, then I don't understand how, time being the only change (if this was the case), justifies the entry into a third-party residence.
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Old 2 October 2018, 10:35
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Very dependent on department policy, legal precedence, and the information you had available at the time.

Based on what you wrote, I would not consider that exigent circumstances (or, really, even anywhere near exigent circs). In the two jurisdictions I was a LEO, that would not have been enough for a SW, either.
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Old 2 October 2018, 11:15
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Quote:
Originally Posted by gavin View Post
Very dependent on department policy, legal precedence, and the information you had available at the time.

Based on what you wrote, I would not consider that exigent circumstances (or, really, even anywhere near exigent circs). In the two jurisdictions I was a LEO, that would not have been enough for a SW, either.
This.
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Old 2 October 2018, 13:53
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No input on the scenario, but the fact that you're looking for a debrief, especially here, says a lot IMO.

Good on you.
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Old 2 October 2018, 14:00
osubuckeye762 osubuckeye762 is offline
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I have to agree with Gavin and Believeraz, we would have been hard pressed to even get a search warrant.

You made a great call listening to the others Officers input.

When I was working in the County for the S.O. we had a similar situation and with the same type of players. We called for the local Probation Officer to assist us.

I am glad the boy was found and is safe.

I have stated this before, but I learn a lot from this forum and it helps keep my skills sharp.

In regards to his phone, and pinging it, (depending on jurisdiction and Ohio law) would it violate his 4th amendment if it was in his mom's name and he is given it to use. I know in VA that was always that gray area on ownership, leasing etc..

These are the types of calls that can get an Officer jammed.
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Old 2 October 2018, 14:01
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Originally Posted by hawkdrver View Post
No input on the scenario, but the fact that you're looking for a debrief, especially here, says a lot IMO.

Good on you.
Agreed. Shows to me that you give a shit...which is an admirable trait nowadays.
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Old 2 October 2018, 14:36
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I agree with "Jim". Based on what you've posted above it doesn't meet the standard by any stretch.
What gave you a reasonable belief that the child was in "imminent physical danger".

If the homeowner said you couldn't enter and there was no reasonable belief that the child was still there (2 hours after video), the intrusion would not be justified.
Based on your own post... "It was close to shift change so once the other two Officers got on shift I sent them over....." you were not treating it as an emergency.


Buy Jim an extra donut, lol
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Old 2 October 2018, 15:36
revanation revanation is offline
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Whoa man that was nowhere in the realm of being close to exigent circumstances to justify warrantless entry without consent.
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Old 2 October 2018, 16:13
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I may have misread it, but I think the issue was that the kid didn't have his phone, so pinging it would have been useless.

Did the residents deny he'd been there at all, or just say he wasn't there when you asked? Because with the video, you've got evidence he was there at some point. Them lying about his being there still wouldn't rise to exigent, but it might have helped with a warrant or to convince APA guys to help.
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Old 2 October 2018, 17:46
Fu King Lawyer Fu King Lawyer is offline
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Quote:
Originally Posted by 256 View Post

My question to anyone here: did we have exigent circumstances working in good faith to locate a missing juvenile with his and the people he was hanging out with’s history? Jim said after it was all over that he saved my “ass from getting sued and loosing everything.”

..
I agree with the opinions expressed by others, above. Without more articulable facts showing imminent danger of death or serious bodily harm, I don't submit you can establish the exigency. Remember, the burden of proof is upon you to justify the warrant exception and you don't have the same presumptions that you do with a search warrant.

The below is the baseline for federal law enforcement. Your state may have "tighter standards" under you state's Constitution and your prosecuting attorney or department legal advisor will have to address those.

https://www.fletc.gov/legal-division-handbook-pdf

It is a well-established rule of law that searches conducted without warrants are presumptively unreasonable, subject to only a few limited exceptions.

The government always has the burden of proving a lawful search. For this exception to the warrant requirement, the government must prove both the existence of probable cause and the exigent circumstance.

A valid emergency scene search must usually meet two requirements: (1) officers must have objectively reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; and (2) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.12 The term “probable cause” in this context is different from how that term is typically used. Probable cause generally means facts exist that would lead a reasonable person to believe that evidence of a crime will be discovered. But in the context of an emergency scene situation, the term “probable cause” means facts exist that would lead a reasonable person to believe that a person is in some type of danger.
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Old 2 October 2018, 20:38
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Here is brief summary of an "exigent circs" forced entry I did, which was challenged and affirmed. This is what I consider a good example of exigent circs with some interesting variables.

Late evening, dark. Caller reports watching a male carry what appeared to be an unconscious female juvenile into a house. Caller stated that no juvenile females lived in that house, and provided a description of the male. House is known to me to be a flop house for dirtbags.

I get there with one or two other cops, I knock on the door. Registered sex offender (already known to me as local dirtbag and pedophile) opens the door, and this particular registered sex offender matches the description provided by the caller. Register sex offender denies carrying a female into the house, says he has been there for hours, alone. I had seen him at the bars a few blocks away about 30 minutes before the call.

He tells me to fuck off, and denies request to check premises for any unconscious juveniles, and slams the door. I tell him to open the door or I'll kick it in. He tells to fuck off some more.

Other cops arrive, I tell them we are kicking the door. They argue about whether or not the circs are exigent, so I kick the door while they argue.

Inside, we find a female adult hiding under the bed, heavily intoxicated (and with warrants). She was small, and could pass for a juvenile.

We arrest registered sex offender for narcotics possession (discovered in plain view upon entry), and female for warrants.

Sex Offender challenges the narcotics arrest as being incident to unlawful search. I lay out for the court the sequence of events leading to the discovery of the narcotics and the wanted female. Court sides with me. Winning!

I have also had a "exigent circs" forced entry case go to court and get thrown out (was a "felon in possession of a firearm" case)...so I was wrong on that one, and they guy walked. I was probably justified, but didn't properly articulate my justification. Not winning!
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Old 2 October 2018, 22:00
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Quote:
Originally Posted by 256 View Post
I believed we had exigent circumstances, being there was a strong possibility the kidís life was in danger.
Although I'm not familiar with US legal precedents/decisions, I am all-too-familiar with emergency-vs-warrant searches.

Firstly, I should state here what I would tell any Officer that I supervised - If you're not sure, look at your Dept's policies, and the applicable legislation.

But for me, exigent means "immediate emergency requiring action NOW". Not action in a few minutes etc, but now.

"Life was in danger" does not itself create those circumstances. There are a billion different situations where a person's life is in danger, that does not need action this very second.

If you felt comfortable taking the time to have a discussion about the circumstances being exigent or not, then the circumstances didn't meet that benchmark.

But I'll reiterate - If you're not sure, look at your Dept's policies, and the applicable legislation.

Once you are on solid ground in your knowledge, backed up with policy and legislation, it would be a good incident to use as a learning opportunity for your team, debrief etc. It's incidents like this, combined with proper research, that leads to improved knowledge and effectiveness on the streets.
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Old 3 October 2018, 00:57
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*Laughs in 9th Circuit*
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Old 3 October 2018, 04:27
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Originally Posted by Maverick View Post
Shows to me that you give a shit...which is an admirable trait nowadays.

This is what I read too and I find that pretty cool.
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Old 3 October 2018, 07:47
Fu King Lawyer Fu King Lawyer is offline
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Quote:
Originally Posted by gavin View Post
Late evening, dark. Caller reports watching a male carry what appeared to be an unconscious female juvenile into a house. Caller stated that no juvenile females lived in that house, and provided a description of the male. House is known to me to be a flop house for dirtbags.

I get there with one or two other cops, I knock on the door. Registered sex offender (already known to me as local dirtbag and pedophile) opens the door, and this particular registered sex offender matches the description provided by the caller. Register sex offender denies carrying a female into the house, says he has been there for hours, alone. I had seen him at the bars a few blocks away about 30 minutes before the call.
!
Good facts, good result.

On all fours with the 4th Amend standard of "objectively reasonable." Independent source relates apparent - juvenile - female in distress. Subject makes (known) false statement to LEO denying connection to the crime under investigation. Criminal history matches up with the facts.

Parenthetically, it probably helped that it was a female (or for that matter, a 'tender years" male juvenile) at risk. Lots of jurisprudence where courts have found warrantless searches reasonable "for the children".

Courts most always conclude the LEO doesn't need to be right, only that he/she needs to be objectively reasonable in warrantless searches.
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Old 3 October 2018, 11:50
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Long couple shifts. I’m not being rude in my slow response to all of your insights. I greatly appreciate your guidance and looking forward to replying. Just gotta get some zzz’s. 12am is coming fast!
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