In Bogan v. City of Chicago, the Seventh Circuit held that in § 1983 civil actions for unreasonable search, the plaintiff bears the burden of proving the absence of exigent circumstances. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures and no Warrants shall issue, but upon probable cause.” In Kentucky v. King, the Supreme Court maintained the long-recognized notion that warrantless searches within a home are “presumptively unreasonable,” but that presumption can be overcome by the existence of exigent circumstances. The Court has identified certain circumstances that qualify as “exigent.” Though declining to define the scope of exigent circumstances, the Court stressed that exceptions to warrantless searches should be “few in number and carefully delineated.” While lower courts have respected this limitation by placing a high burden on the government to prove the existence of exigent circumstances at the time of the search, the Seventh Circuit recently held in Bogan v. City of Chicago that the standard should be shifted in civil cases, placing the burden of proof on the plaintiff to prove the absence of exigent circumstances. This burden shift effectively widens the intentionally narrow exception to warrantless searches and could lead to plaintiffs’ inability to seek redress after apparent Fourth Amendment violations.
Adrienne Lewis, The Fourth Amendment – The Burden of Proof for Exigent Circumstances in a Warrantless Search Civil Action, 65 SMU L. Rev. 221 (2012)