No Facts, No Search: Ambiguous Concerns Regarding Police Safety Don’t Support Warrantless Search of a Home

A recent decision by the Superior Court of Pennsylvania makes clear that police cannot conduct a warrantless search of a home based on nothing more than ambiguous assertions that they feared they were in harm’s way.

Walking to the Garage

In Commonwealth v. Duke, Pennsylvania State Troopers came to the defendant’s house in York County, Pennsylvania, with a New York state-issued arrest warrant looking for the defendant’s son. The defendant was standing at the end of his driveway holding a small dog when the troopers arrived. He told them that his son was incarcerated in Lancaster County Prison and thus was not on the premises.

The troopers asked for the defendant’s permission to search his house to confirm that his son was not there, and the defendant denied their request. The defendant, who was still holding his dog, then retreated up his driveway toward his garage.

The troopers, who did not have the defendant’s consent to be on his property, followed him toward the garage. They then observed inside the garage a compound bow and arrow, a crossbow, and a long gun or rifle. They also smelled marijuana. The troopers entered the garage, again without the defendant’s consent, and found five or six marijuana plants drying there.

Based on this discovery, the troopers arrested the defendant and subsequently obtained a search warrant for his home and found additional marijuana plants. The defendant was charged with one count of Manufacturing with Intent to Deliver.

Prior to trial, the defendant sought to have the evidence suppressed on the grounds that the troopers conducted an illegal, warrantless search in violation of his constitutional rights when they followed him to his garage. Consequently, he argued, any evidence obtained as a result of that search was inadmissible in court.

At a hearing, the troopers testified that they followed the defendant up his driveway because they did not know whether he intended to harm them and wanted to ensure that he wasn’t going for a weapon. Crediting their testimony, the trial court concluded that “officer safety” was an exigent circumstance that justified the troopers’ warrantless incursion into the defendant’s garage and ruled that the drug evidence was admissible.

The defendant was found guilty at trial and appealed the issue regarding suppression of evidence to the Pennsylvania Superior Court.

Exigent Circumstances

In ruling in favor of the defendant, the Superior Court first noted that “Warrantless searches and seizures are … unreasonable per se unless conducted pursuant to a specifically established and well-delineated exception to the warrant requirement.”

One such exception is when probable cause and exigent circumstances exist. Exigent circumstances are circumstances where there is an urgent need for prompt police action. Danger to a police officer is a factor for courts to consider in determining whether exigent circumstances exist.

Here, the Superior Court made short order of the troopers’ claims that there was an exigency because they did not know whether the defendant intended to harm them or whether he was going for a weapon.

With respect to the troopers’ claims that they did not know the defendant’s intentions, the court reasoned:

This lack of knowledge of [defendant’s] intentions, however, without more, is insufficient to create an exigency that [defendant] intended to harm the troopers. The troopers must observe some conduct or action on the part of [defendant] from which they could reasonably infer that [defendant] intended to harm them. There is no such conduct or action in this case.

Additionally, the undisputed facts lead to a contrary result. After [defendant] told the troopers to leave his property, [defendant] walked away. It is not reasonable to infer from [defendant’s] retreat that [defendant] was intending to harm the troopers.

With respect to the troopers’ claim that they did not know whether the defendant was going for a weapon, the court reasoned:

[Defendant] simply retreated from the troopers, carrying a small dog. He did not act in any manner from which it was reasonable for the troopers to assume that [defendant] was walking away from the troopers to obtain a weapon and threaten their safety.


This case is important because of its clear assertion that police with “no facts to support an inference” will not be permitted to, essentially, create their own exigency to support a warrantless search.