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Media > Newsletters > Law Enforcement Bulletin > November 2012 > State v. Luong — Twelfth District Court of Appeals (Brown, Butler, Clermont, Clinton, Fayette, Madis

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State v. Luong — Twelfth District Court of Appeals (Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble), Oct. 1, 2012

Question: Did firefighters and peace officers have an objective, reasonable belief that an immediate entry into the residence was necessary in order to protect any persons or property or to prevent the destruction of evidence inside?

Quick Answer: Yes, if exigent circumstances exist, such as a need to protect life and property and to prevent the imminent destruction of evidence, peace officers may enter a suspect’s residence without a search warrant.

Facts: Phuc Ky Luong’s neighbors reported that an “unknown” odor was coming from Luong’s house, and that they had seen individuals enter the house but not leave. Firefighters and peace officers arrived at the house and noticed the unfamiliar odor. Firefighters walked to the rear of the house, where they noticed a warm, moist air flow coming from a basement window. They attempted to obtain gas readings through the basement window by pushing on the window just enough to allow them to insert a multi-gas meter. When the firefighters pushed on the window they glanced into the basement and saw an individual and tables filled with green, leafy plants. At that time, a peace officer decided that warrantless entry of the residence was justified based on possible health hazard created from the existence of chemicals as well as the possible destruction of evidence that could occur in the 30 minutes it would take to obtain a search warrant. Upon entering the residence, officers made a protective sweep to determine if anyone was inside. The officers then permitted firefighters to inspect the house for safety concerns. Once the fire department determined that no imminent danger existed, the police waited outside the residence for a search warrant to arrive.

Why this case is important: Warrantless searches are allowed when the circumstances make it reasonable. In this case, the decision of the firefighters and police to make a warrantless entry and/or search was justified by exigent circumstances, including the need to protect life and property at Luong’s residence and to prevent the imminent destruction of evidence. The intrusion was minimal and limited to the exigent circumstances . The officers here were very restrained. As soon as they that there was no exigency, they waited outside the residence for a search warrant to arrive rather than conduct a general search.

Keep in mind: There were two exceptions to the search warrant rule in this case. First, the officers intruded into the house by opening the rear window. Normally, this would have been unconstitutional, but here it was justified because of a possible health hazard that might have required emergency assistance. Second, upon seeing obvious contraband, the officer entered into the house to ensure that the evidence was not likely to be destroyed. This was a legitimate concern because the neighbors had reported people entering the house, but no one leaving, and so the officers reasonably believed suspects could be in the house and able to destroy the evidence. At that point, the officers also were able to complete their emergency assistance goal by allowing the firefighters to take a gas reading. Once these two tasks were complete, the officers withdrew and sought a warrant to fully search the premises.  

Visit the Twelfth District Court of Appeals website to read the entire opinion.