ANSWER:

This question can be answered by the 11th Circuit Court of Appeals decision in the United States v. Santa.ⁱ  In this case, narcotics agents conducted an undercover drug investigation that involved the use of a Confidential Informant (CI).  The CI was “wired” and was to give a pre-arranged signal when he saw the heroin in Ramirez and Santa’s apartment.  When the CI saw the heroin, he gave the signal and other agents forced entry into Santa’s residence by kicking in a door.  Another occupant of the apartment, Ramirez, was placed on the floor, handcuffed and read Miranda.  He then consented to a search of the apartment and the heroin was found.  Santa was giving her child a bath as this occurred and she was arrested after the heroin was located.

The relevant issue before the court was whether there were sufficient “exigent circumstances” to justify the warrantless entry into Santa and Ramirez’s apartment in order to search and arrest.  The “exigent circumstance” at issue in this case was whether Santa and Ramirez would have destroyed the evidence had the agents taken the time to obtain a search warrant.

The agents testified that they entered immediately without a warrant to (1) prevent the destruction of evidence and (2) to arrest Ramirez before he could escape.

The 11th Circuit Court of Appeals held that exigent circumstances were not present to justify the warrantless entry to prevent the destruction of evidence.  Facts that they considered to support this holding were that Ramirez and Santa did not know that they had been working with a CI.  The agents involved were all undercover and had not been recognized by Ramirez or Santa.  The 11th Circuit has previously held that exigent circumstances (regarding the destruction of evidence) are not normally present when the suspects are unaware of police surveillance.ⁱⁱ   The prosecution contended that surveillance of the suspect’s residence was too difficult and the suspects could easily escape while a warrant was being secured.  To this argument, the 11th Circuit stated:

We will not hold that the warrantless search of an individual's home may be justified by the police's inability to maintain effective surveillance, particularly when no exigency has been established. Such a holding would run counter to all established Fourth Amendment precedent.ⁱⁱⁱ

The agent also contended that the suspects would have become suspicious and destroyed the drugs because they expected the CI to return with the money.  Thus, the delay in obtaining a warrant would have tipped the suspects off that the police may be involved.  However, the court found that there was no evidence as to how long the suspects expected it to take the CI to obtain the money; therefore, any speculation on the part of the agents was insufficient to establish exigent circumstances.  Further, the court stated:

Even if we assume, however, that Ramirez and Santa expected the CI to return to the apartment within a few minutes of his departure, the agents' warrantless entry of the apartment was unlawful. This court has held that "a warrantless search is illegal when police possess probable cause but instead of obtaining a warrant create exigent circumstances."^iv

The court then launched into an analysis about whether an anticipatory search warrant would have been appropriate in this case.  Anticipatory search warrants are search warrants that become effective upon the happening of a future event, such as drugs being delivered to a residence.  These warrants "have repeatedly been upheld where they are supported by probable cause and the conditions precedent to the search are clearly set forth in the warrant or supporting affidavit."^v  The 11th Circuit then stated:

...we hold that anticipatory search warrants are not per se unconstitutional. In the proper circumstances, such warrants will better serve the objective of the Fourth Amendment by allowing law enforcement agents to obtain a warrant in advance of delivery, rather than forcing them to go to the scene without a warrant and decide for themselves, subject to second-guessing by judicial authorities, whether the facts justify a search.^vi

The court, upon examining the facts of this case, determined that probable cause existed for the issuance of an anticipatory search warrant; therefore, exigent circumstances did not justify the warrantless entry into the suspect’s residence based upon the facts of this case.

Thus, the answer to the question presented is “it depends.”  If the controlled purchase of narcotics is one where there is sufficient probable cause to obtain an anticipatory search warrant of the premises conditioned upon the delivery of narcotics, then warrantless entry may not be made.  Likewise, if there is no reason to suspect that the suspect’s are aware of the investigation that is taking place, then a warrant would be needed.  However, if there is a reason to suspect that the suspects have “burned” your CI, your CI has “burned” your investigation, or agents are observed by the suspects and the suspects now aware of your active investigation, then exigent circumstances justifying warrantless entry to prevent the imminent destruction of evidence or escape of the suspects may be present.  However, the 11th Circuit Court of Appeals does not support the exigent circumstance exception where the police create the exigent circumstance with the intent of avoiding the necessity of a warrant.

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