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Oregon’s warrantless eavesdropping requirement to record a CI and his target requires exigency and probable cause. State v. Miskell, 2012 Ore. LEXIS 269 (April 26, 2012),* revg 239 Or. App. 629, 246 P.3d 755 (2010):

Another aspect of the provision's wording supports defendant's contention that the legislature had in mind the well-known constitutional doctrine of exigent circumstances that obviate the need for a warrant. Law enforcement officers who wish to proceed without a court order under ORS 133.726(7)(b) must be able not only to point to "circumstances of such exigency that it would be unreasonable to obtain a court order," but also must have "probable cause to believe that [the person whose communication is to be intercepted] has committed, is engaged in committing or is about to commit" a felony. The phrase "probable cause" inescapably alludes to a specialized legal concept associated with the constitutional prohibition (in both the Oregon and United States constitutions) against unreasonable searches and seizures, and its use in ORS 133.726(7)(b) appears to confirm that the entir provision, including the "exigency" wording, was intended as a reference to the familiar "probable cause plus exigent circumstances" exception to the warrant requirement. See, e.g., State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006) (warrantless search permitted if police could show probable cause and exigent circumstances).

On remand from Kentucky v. King, the Kentucky Supreme Court finds no exigency and suppresses again. The state failed in its burden to show exigency. King v. Commonwealth, 2012 Ky. LEXIS 45 (April 26, 2012):

This case is before this Court on remand from the United States Supreme Court, Kentucky v. King, __ U.S. ___, 131 S. Ct. 1849 (2011), rev'g King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010), to determine whether exigent circumstances existed when police made a warrantless entry into an apartment occupied by Appellant Hollis King. We conclude that the Commonwealth has failed to show circumstances establishing the imminent destruction of evidence. We therefore reverse the original ruling of the circuit court and remand.

. . .

Turning to the question at hand, we conclude that the Commonwealth failed to meet its burden of demonstrating exigent circumstances justifying a warrantless entry. During the suppression hearing, Officer Cobb repeatedly referred to the "possible" destruction of evidence. He stated that he heard people moving inside the apartment, and that this was "the same kind of movements we've heard inside" when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

The police officers' subjective belief that evidence was being (or about to be) destroyed is not supported by the record, and this Court cannot conclude that the belief was objectively reasonable. "[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]" Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (citing Payton, 445 U.S. 573). Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.

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Just because the defendant attempted to elude the police before, there was no exigency to enter a hotel room without a warrant because there was no evidence that the defendant knew the police were tailing him. United States v. Ramirez, 2012 U.S. App. LEXIS 8451 (8th Cir. April 26, 2012):

"We review the district court's findings of historical fact for clear error, but the ultimate determination of whether the facts as found constitute exigent circumstances is reviewed de novo." United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003). "The analysis of whether [the exigent circumstance] exception to the warrant requirement has been made out is an objective one 'focusing on what a reasonable, experienced police officer would believe.'" Id. at 1021 (quoting In re Sealed Case 96-3167, 153 F.3d 759, 766, 332 U.S. App. D.C. 84 (D.C. Cir. 1998)). "[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). When the exigency at issue is destruction of evidence, police officers must demonstrate a sufficient basis for an officer to believe that somebody in the residence (or hotel room, in this case) will imminently destroy evidence. United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988).

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Looking then at the remaining two bases for the district court's analysis, the circumstances relied upon by the district court are not exigent. "The urgency that would justify allowing the police officers, rather than a neutral judicial officer, to draw the reasonable inferences supporting this entry is not present in these facts." United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir. 1990). At the time these officers attempted to enter room 220, they reasonably believed that two of the occupants of room 220 possessed heroin in their shoes, and the officers believed that the men had, possibly, attempted to elude the police either to flee themselves, which seems more tenable, or, more tenuously, to destroy the evidence at some point. That the officers tracked the men also does not impact our analysis. There is no evidence supporting the inference that these men knew the police were tracking them at all, which might lend credence to that line of reasoning as it relates to the imminent destruction of evidence. Also, knowledge that drugs were in the room does not suffice to conclude that destruction was imminent.

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