CACI No. 3026. Affirmative Defense - Exigent Circumstances
Judicial Council of California Civil Jury Instructions (2023 edition)
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3026.Affirmative Defense - Exigent Circumstances
[Name of defendant] claims that a search warrant was not required. To
succeed, [name of defendant] must prove both of the following:
1. That a reasonable officer would have believed that, under the
circumstances, there was not enough time to get a search warrant
because entry or search was necessary to prevent [insert one of the
following:]
1. [physical harm to the officer or other persons;]
1. [the destruction or concealment of evidence;]
1. [the escape of a suspect;] and
2. That the search was reasonable under the circumstances.
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [Insert other applicable factor].
New September 2003; Renumbered from CACI No. 3006 December 2012
Sources and Authority
• “Absent consent, exigent circumstances must exist for a warrantless entry into a
home, despite probable cause to believe that a crime has been committed or that
incriminating evidence may be found inside. Such circumstances are ‘few in
number and carefully delineated.’ ‘Exigent circumstances’ means ‘an emergency
situation requiring swift action to prevent imminent danger to life or serious
damage to property, or to forestall the imminent escape of a suspect or
destruction of evidence.’ ” (Conway v. Pasadena Humane Society (1996) 45
Cal.App.4th 163, 172 [52 Cal.Rptr.2d 777], internal citation omitted.)
• “Before agents of the government may invade the sanctity of the home, the
burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless
home entries.” (Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091,
80 L.Ed.2d 732].)
• “ ‘There are two general exceptions to the warrant requirement for home
searches: exigency and emergency.’ These exceptions are ‘narrow’ and their
boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly
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interfere with the sanctity of the home. In general, the difference between the
two exceptions is this: The ‘emergency’ exception stems from the police officers’
‘community caretaking function’ and allows them ‘to respond to emergency
situations’ that threaten life or limb; this exception does ‘not [derive from] police
officers’ function as criminal investigators.’ By contrast, the ‘exigency’ exception
does derive from the police officers’ investigatory function; it allows them to
enter a home without a warrant if they have both probable cause to believe that
a crime has been or is being committed and a reasonable belief that their entry is
‘necessary to prevent . . . the destruction of relevant evidence, the escape of the
suspect, or some other consequence improperly frustrating legitimate law
enforcement efforts.’ (Hopkins v. Bonvicino (9th Cir. 2009) 573 F.3d 752, 763,
original italics, internal citations omitted.)
• “[D]etermining whether an official had ‘reasonable cause to believe exigent
circumstances existed in a given situation . . . [is a] “question[] of fact to be
determined by a jury.” [Citation.]’ ” (Arce v. Childrens Hospital Los Angeles
(2012) 211 Cal.App.4th 1455, 1475 [150 Cal.Rptr.3d 735].)
• “There is no litmus test for determining whether exigent circumstances exist, and
each case must be decided on the facts known to the officers at the time of the
search or seizure. However, two primary considerations in making this
determination are the gravity of the underlying offense and whether the delay in
seeking a warrant would pose a threat to police or public safety.” (Conway,
supra, 45 Cal.App.4th at p. 172.)
• “ ‘[W]hile the commission of a misdemeanor offense,’ such as the petty theft
that [defendants] were investigating, ‘is not to be taken lightly, it militates
against a finding of exigent circumstances where the offense . . . is not
inherently dangerous.’ ” (Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d
1178, 1189.)
• “Finally, even where exigent circumstances exist, ‘[t]he search must be “strictly
circumscribed by the exigencies which justify its initiation.” ’ ‘An exigent
circumstance may justify a search without a warrant. However, after the
emergency has passed, the [homeowner] regains his right to privacy, and . . . a
second entry [is unlawful].’ ” (Conway, supra, 45 Cal.App.4th at p. 173, internal
citation omitted.)
• “ ‘Exigent circumstances are those in which a substantial risk of harm to the
persons involved or to the law enforcement process would arise if the police
were to delay a search [] until a warrant could be obtained.’ Mere speculation is
not sufficient to show exigent circumstances.” (United States v. Reid (9th Cir.
2000) 226 F.3d 1020, 1027−1028, internal citations omitted.)
• “The government bears the burden of showing specific and articulable facts to
justify the finding of exigent circumstances.” (United States v. Iwai (9th Cir.
2019) 930 F.3d 1141, 1144.)
• “This is a heavy burden and can be satisfied ‘only by demonstrating specific and
articulable facts to justify the finding of exigent circumstances.’ Furthermore,
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‘the presence of exigent circumstances necessarily implies that there is
insufficient time to obtain a warrant; therefore, the government must show that a
warrant could not have been obtained in time.’ ” (Reid, supra, 226 F.3d at p.
1028, internal citations omitted.)
• “When the domestic violence victim is still in the home, circumstances may
justify an entry pursuant to the exigency doctrine.” (Bonivert v. City of Clarkston
(9th Cir. 2018) 883 F.3d 865, 878.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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