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State v. Meyer12/16/1998
neral rule is warrantless searches are unreasonable and therefore unconstitutional, we must determine if the State has met its burden of proof that the search falls into one of the limited exceptions. State v. Heumiller, 317 NW2d 126, 128 (SD 1982) (citing Max, 263 NW2d at 687).
[ ] Exceptions
[ ] The first, and most well known exception to the warrant requirement is exigent circumstances. Heumiller, 317 NW2d at 129 (citing Payton, 445 US at 590, 100 SCt at 1382, 63 LEd2d at 653). Exigent circumstances would justify a warrantless entry into a home for the purpose of either arrest or search. Payton, 445 US at 590, 100 SCt at 1382, 63 LEd2d at 653. Exigent circumstances exist when there is an emergency, the situation demands immediate attention and there is no time to get a warrant. Heumiller, 317 NW2d at 129 (citations omitted). A common example is hot pursuit. See Warden v. Hayden, 387 US 294, 87 SCt 1642, 18 LEd2d 782 (1967). The exigent circumstances doctrine "is to be applied to the facts as perceived by the police at the time of entry, not as subsequently uncovered." Heumiller, 317 NW2d at 129. We have established guidelines to assist in the determination of whether exigent circumstances exist.
[To determine] when exigent circumstances exist ... . onsiderations that are particularly relevant are as follows:
"1. That a grave offense is involved ...;
2. that the suspect is reasonably believed to be armed;
3. that a clear showing of probable cause exists, including "reasonably trustworthy information," to believe that the suspect committed the crime involved;
4. that there is a strong reason to believe ... the suspect is the premises ...;
5. that a likelihood exists that the suspect will escape ...;
6. that the entry, though not consented to, is made peaceably; and
7. time of entry." Max, 263 NW2d at 687 (citation omitted).
[ ] The second exception to the warrantless search is consent. See Schneckloth v. Bustamonte, 412 US 218, 93 SCt 2041, 36 LEd2d 854 (1973); Benallie, 1997 SD 118, 570 NW2d 236. An individual can waive the warrant requirement by consenting to a search by law enforcement officers. For a consensual search to be valid, it must be given by someone who has the authority to consent and it must be given voluntarily. Benallie, 1997 SD 118 at § 11, 570 NW2d at 238. "Consent can be given by a third person who has common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. (citing State v. Tapio, 459 NW2d 406, 414 (SD 1990)).
[ ] The third exception to the rule forbidding warrantless searches is the search incident to an arrest. See Chimel v. California, 395 US 752, 89 SCt 2034, 23 LEd2d 685 (1969); State v. Rice, 327 NW2d 128 (1982). "A search incident to arrest permits a warrantless search of an individual and of the area within his immediate vicinity following his arrest, so long as the search is contemporaneous with the arrest and is confined to the immediate vicinity of the arrest." Rice, 327 NW2d at 130. A warrantless search in such a situation is justified to prevent the removal of weapons and the destruction or concealment of evidence. Id. (Citation omitted).
[ ] The final exception to the rule forbidding warrantless searches of the home is the protective sweep. See Maryland v. Buie, 494 US 325, 110 SCt 1093, 108 LEd2d 276 (1990). In Buie, the Supreme Court found the Fourth Amendment permitted properly limited protective sweeps in connection with an in-home arrest when the officer possesses a reasonable belief based on specific and articulable facts the area to be searc
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