Opinion
00-CR-372(JMR/RLE)
September 28, 2001
ORDER
Defendant has been indicted on charges of burglary in the second-degree, in violation of 18 U.S.C. § 1151 and 1153(b) and Minn. Stat. § 609.582, Subd. 2(a), and with one count of resisting and impeding a federal officer, in violation of 18 U.S.C. § 111(a). Defendant asks the Court to suppress evidence seized in his home, claiming the investigating officers' entry and search violated the Fourth Amendment to the United States Constitution. The motion was initially heard before a Magistrate Judge. On June 15, 2001, the Magistrate issued a Report and Recommendation that the motion be denied.
Defendant timely filed his objection to the Report, pursuant to Local Rule 72.1(c)(2). The government asks the Court to adopt the Report and Recommendation. Based upon a de novo review of the record herein, the Court finds the search and seizure violated the Fourth Amendment and declines to adopt the Magistrate's proposed ruling. As such, the evidence may not be used at trial.
I. Factual Findings
Neither party seriously disputes the Magistrate's factual findings, and with some supplementation, the Court adopts them as its own.
On the morning of November 14, 2000, Donovan Wind ("Wind"), a Criminal Investigator with the Red Lake Department of Public Safety, and John Egelhof ("Egelhof"), a Special Agent with the Federal Bureau of Investigation, responded to a call relating to an assault and arson incident at the Beaulieu residence. The Magistrate found, and the Court agrees:
Subsequent to the receipt of that report, Egelhof interviewed the purported victim of the assault, Celeste Beaulieu, at the Red Lake Police Department, where he received her permission to enter the Beaulieu residence in order to investigate the assault and arson.
As recounted by Wind, he and Egelhof proceeded to the Beaulieu residence at approximately 7:00 o'clock a.m. Upon their arrival at the residence, Wind observed that the backdoor to the residence was ajar, and that a computer monitor had been placed on the kitchen table, near the open backdoor. Wind also recalled that, although the backdoor to the residence had been left open, the air temperature inside the residence was warm, and on the kitchen floor, near the backdoor, Wind noticed a single set of fresh footprints, leading east from the Beaulieu residence.
According to Wind, these observations led he and Egelhof to conclude that, upon their arrival at the Beaulieu residence, a burglary had been in progress. A call to the Red Lake Police dispatcher contributed to this suspicion, as it was revealed that a Red Lake resident called the police and reported an individual walking away from the Beaulieu residence, carrying unidentified objects, immediately prior to the arrival of Egelhof.
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Wind testified that the footprints led from the back door of the Beaulieu residence for about one-quarter mile, directly to the door of the Lussier residence. After he arrived at the Lussier residence, Wind was informed by a neighbor, that the Lussier family had left the residence earlier that morning.
Nevertheless, because he believed a burglar was inside, Wind began to aggressively knock on the door, in order to announce his presence.
According to Wind, after he began knocking, he heard an individual running up the steps of the Lussier residence, and also heard that same person scrambling about within the residence. However, no one came to the door. Thereafter, Wind Was joined by another police officer, and by Egelhof. Together, these three law enforcement officers continued knocking on the door for several minutes, until an individual named Pete English ("English"), answered the door. Wind further testified that, once English appeared to answer the door, it became apparent that he was not the suspected burglar. Wind testified that English smelled of alcohol, and he appeared as though he had been asleep immediately prior to answering the door. Wind testified that, because English was excessively overweight and not in good physical condition, he did not appear to be capable of burglarizing the Beaulieu residence, in the manner that was suspected, given the evidence found at the scene.
Upon answering the door, English informed Wind and Egelhof that no other individuals were present inside the residence. However, English also stated that, because he was a sound sleeper, he could not be certain that someone had not entered the residence while he was asleep. It was at this point that Wind, and Egelhof, decided to enter the Beaulieu residence. According to Wind, this warrantless entry was necessary because the Red Lake Police Department did not have enough officers on duty to secure the Beaulieu residence, while a Warrant could be obtained.
As detailed by Wind, at the time of the entry into the Beaulieu residence, school children were traveling to school, and, therefore, officers were needed to monitor traffic. Wind further testified that, on the morning of November 14, 2000, a fresh snowfall had made the roads slippery and dangerous, and that these conditions had caused a traffic accident, which required police intercession.
Next, Wind testified that he, Egelhof, and several additional law enforcement officers, entered the residence, without any protest from English.
Initially, the officers conducted a protective sweep of the residence, in order to secure the premises and to locate the suspected burglar. During this protective sweep, the officers observed evidence in plain view, including computer equipment that was stacked on the basement floor, and compact discs, which they believed to have been taken from the Beaulieu residence.
Officer Willie Strong ("Strong").
According to Wind, before English answered the door, he and Egelhof attempted to enter the residence. However, because the door was locked, they were unsuccessful.
Report and Recommendation, at 4-8.
Upon entering the Lussier home, Wind and Egelhof conducted a "protective sweep," during which they discovered defendant. The defendant was found in the home's attic, hiding under the insulation. On the morning of defendant's arrest, a number of other events on the Red Lake Reservation demanded police attention. An automobile accident occurred, and law enforcement personnel were called to respond. In addition, law enforcement assisted in traffic management during the morning's school commute. This assistance was required — at least in part — because of the overnight snowfall. The weather was described as cold, wet, snowy, and icy.
Following Lussier's arrest, the police obtained limited consent from Leslie Lussier, his mother, to search for additional compact discs and defendant's shoes.
II. Discussion
Under the Fourth Amendment, it is clear that citizens have a heightened expectation of privacy within the home. See Welsh v. Wisconsin, 466 U.S. 740, 748 (1984); Steagald v. United States, 451 U.S. 204, 211-12 (1981). The United States Supreme Court has stated that "[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 121 S.Ct. 2038, 2041-42 (2001). The government does not challenge defendant's expectation of privacy in his mother's home. When an individual enjoys such an expectation of privacy, law enforcement authorities must generally obtain a warrant before entering and searching the home. See Steagald, 451 U.S. at 211. Officers Wind and Eglehof did not obtain a search or arrest warrant prior to entering the Lussier home.
The law recognizes two limited exceptions to the Fourth Amendment's warrant requirement. The first occurs when police are faced with exigent circumstances. See Welsh v. Wisconsin, 466 U.S. at 748-49 ("[W]arrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances."); Payton v. New York, 445 U.S. 573, 588 (1980) (holding that a warrant or exigent circumstances are needed for a constitutional search and seizure). The second exception exists for circumstances where consent has been given. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Connor, 127 F.3d 663, 666 (8th Cir. 1997).
Defendant denies the presence of exigent circumstances or valid consent in this case. After review, the Court finds defendant is correct and orders the suppression of the evidence seized from the Lussier home.
A. Exigent Circumstances
The United States Supreme Court has stated, "[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh, 266 U.S. at 749-50. The Court has recognized a small number of these exigent circumstances: "Hot pursuit" of a fleeing felon, see United States v. Santana, 427 U.S. 38, 42-43 (1976); Warden v. Hayden, 387 U.S. 294, 298-99 (1967), a risk of destruction of evidence, see Schmerber v. California, 384 U.S. 757, 770-71 (1966), and threats of violence or danger to human life, Welsh, 266 U.S. at 748; United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996). No such exigent circumstance was present here.
Hot pursuit involves the "immediate or continuous pursuit of the [defendant] from the scene of the crime" to a home or residence. See Welsh, 266 U.S. at 752. Here, the officers observed melting footprints in the snow, but they were not on the scene in immediate or continuous relation to any fleeing suspect. These officers were at a nearby residence looking for evidence of an altogether different crime: assault and arson. They did observe a computer monitor on a counter, but this hardly qualifies as hot pursuit of an assault or arson suspect. While they may have surmised that a computer monitor often has a companion piece and may have thought the missing piece was related to the footprints seen outside the door, this is not hot pursuit. The officers had neither actual knowledge of any computer theft — as none had been reported — nor did they have any idea of the as-yet-unknown-crime's perpetrator, other than he or she may have left the visible footprints. Their hastily formed belief that an unknown crime had taken place, and their assumption that the miscreant was nearby, may have been sufficient to provide probable cause for a search warrant, but was entirely inadequate to replace the need for the warrant. See United States v. Suarez, 902 F.2d 1466, 1467 (9th Cir. 1990) ("[T]he existence of probable cause, without more, does not validate a warrantless entrance into a residence") (emphasis in original).
The present case is not analogous to a case where the officers came upon a burglary in progress. See, e.g., United States v. Singer, 687 F.2d 1135, 144 (8th Cir. 1981); United States v. Reed, 141 F.3d 644, 549 (6th Cir. 1998). An ongoing burglary can provide exigent circumstances for the police to search the home being burgled in order to stop the crime during its commission and to protect the occupants of the house. See In re Sealed Case, 153 F.3d 759, 766 (D.C. Cir. 1998). The need to protect the owners from a confrontation with the burglar provides an exigent circumstance in these cases. See id. at 767-78. But this case, of course, does not involve police entry into the home assumed to have been burgled; this was a warrantless entry into the presumed-burglar's home. These facts do not lie within the exception to the warrant requirement. The officers heard a person moving inside the house after pounding on the door. The sound they heard cannot be bootstrapped into either hot pursuit or exigent circumstances. See United States v. Williams, 604 F.2d 1102, 1122 (8th Cir. 1979) (finding the sound of running feet insufficient to create probable cause).
Similarly, this is not a situation where officers could reasonably believe a suspect was destroying evidence. See Suarez, 902 F.2d at 1468; United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988) (recognizing exigent circumstances when officers believe drug evidence will be destroyed); United States v. Parris, 17 F.3d 227, 229 (8th Cir. 1994) (recognizing exigent circumstances when drugs will be moved or destroyed). There is no possibility that a computer or a C.D. can be swallowed or flushed away. Even if the Court assumes these officers could have accurately surmised that a computer had been stolen when they saw remaining components on the counter, there is no rational way they could have reasonably suspected a suspect could destroy the pilfered goods.
Until this case, the Court has not heard of any assumptions of evil-doing simply because a computer was observed to be in pieces.
Further, this entry cannot be sustained based on the arresting officers' or the public agents' need to protect their personal safety or public safety. See United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996) (allowing warrantless search if lives are threatened). "To justify such a protective search, the agents must point to `specific and articulable facts supporting their belief that other dangerous persons may be in the building or elsewhere on the premises.'" Suarez, 902 F.2d at 1468 (quoting United States v. Whitten, 706 F.2d 1000, 1014 (9th Cir. 1983)). Officers Wind and Egelhof offered no testimony indicating that the burglary suspect might be violent. See generally Welsh, 466 U.S. at 752 (citing People v. Sanders, 374 N.E.2d 1315, 1317 (Ill.Ct.App. 1978) (stating that a burglary without weapons is insufficiently grave to permit a warrantless home arrest)). Neither officer even attempts to use this justification.
Nothing in this "investigation" provided any basis to assume the perpetrator — if, indeed, anything had been perpetrated — might be violent. There was no evidence of forced entry at the house with the computer piece on the counter. The officers' call to their dispatcher did not indicate the presence of a weapon. Therefore, the officers cannot have reasonably believed an immediate search was necessary to avoid violence.
The search of the attic insulation to find Mr. Lussier extended beyond the bounds of a valid protective sweep. Law enforcement officers may conduct a protective sweep of a home as part of a valid arrest. See Maryland v. Buie, 494 U.S. 325, 327 (1990) (permitting a protective sweep of a home to secure officer safety following a validly executed arrest (emphasis added)). As explained above, neither officer testified to "a reasonable belief based on specific and articulable facts" which could indicate that the area searched "harbored an individual posing a danger to the officers or others." Maryland, 494 U.S. at 327-38. While officers may conduct a "cursory visual inspection of those places in which a person may be hiding," see Maryland, 494 U.S. at 327, the sweep of the Lussier home went far beyond the "cursory" scope of a permitted protective sweep. This was a top-to-bottom search of the home. The sweep was conducted in the absence of any reasonable basis to fear for officer safety, and certainly not while executing a valid arrest warrant. For these reasons, the search cannot be upheld as adjunct to a protective sweep of the Lussier's home.
The evidence indicates that the officers could have obtained a warrant to search Mr. Lussier's mother's home. See Suarez, 902 F.2d. at 1468 (indicating that officers should have secured the defendant's apartment and obtained a warrant). The only possible "exigent" circumstance in this case is Egelhof's statement that "officers were really needed elsewhere." This statement was apparently made after acknowledging that an officer was covering both the front and rear doors of the suspect's location. This Court knows of no case where a shortage of police officers was recognized as an exception to the Fourth Amendment warrant requirement. And the Court considers it unlikely that a shortage of police will be recognized as such an exception in the near future. But in no circumstance will it be so considered here.
The United States Supreme Court has stated, "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well — delineated exceptions." Horton v. California, 496 U.S. 128, 133 n. 4 (1990). A recent snow may have increased the police department's workload, but this is not a basis to jettison the Constitution's warrant requirement. The police had already surrounded the suspect in his mother's home. At least three officers (Wind, Egelhof, and Strong) were present on the scene. Having secured the building, the police should have sought either a search warrant or the consent of the home's owner. See Segura v. United States, 468 U.S. 796, 801 (1984).
B. Consent to Search
The Supreme Court analyzed its search/consent jurisprudence in Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The Court particularly addressed "the definition of `consent' in this Fourth and Fourteenth Amendment context," id. at 219, establishing the "totality of the circumstances" test. The test to be applied requires consideration of all the surrounding circumstances to determine if the consent was voluntary. Id. at 233.
"[A]n unconstitutional search occurs when officers gain visual or physical access to a [residence] after an occupant opens the door not voluntarily, but in response to a demand under color of authority." Connor, 127 F.3d at 666. In Connor, police "knocked on the door longer and more vigorously than would an ordinary member of the public," and knocked loud enough to wake a neighboring motel guest. See id. at 666 n. 2. The Eighth Circuit Court of Appeals found the occupants' response resulted from the show of authority. See id. As a result, any evidence seen through plain view or by search was inadmissible. See id.
Here, Officer Wind "aggressively knock[ed] on the door," but apparently to no avail, because
"no one came to the door. Thereafter, Wind was joined by another officer and by Egelhof. Together, these three law enforcement officers continued knocking on the door for several minutes, until Pete English ("English") answered the door."
Even setting aside the officers' effort to force the door, see fn. 2, above, Mr. English's awakening cannot be equated to a valid consent to search. Officer Wind testified that he and Eglehof attempted to enter the residence through the door, but could not do so because it was locked.
This is clearly a situation, giving full credit to the officers' testimony, where the door was opened in response to a display of police power; it is not a case where consent necessary to obviate a warrant was given. Once Mr. English opened the door, the officers entered without seeking his verbal consent. Considering the nature of the officers knocking and their failure to request permission to enter, Mr. English cannot be considered to have given consent to search the house.
As the question was not considered below, the Court declines to determine whether Mr. English was actually a person who could grant permission to enter the home. No evidence appears on the point other than the fact that the home was owned by Mr. Lussier's mother. The Court, however, considers it most unlikely that the officers assumed Mr. English was Mr. Lussier's mother.
III. Conclusion
Wind and Egelhof searched the Lussier home and arrested defendant without either a search or an arrest warrant. The Court finds there were no exigent circumstances which might constitute an exception to the Fourth Amendment warrant requirement. The search and seizure were therefore illegal.
Accordingly, IT IS ORDERED that:
Defendant's motion to suppress evidence obtained as a result of search and seizure [Docket No. 16] is granted.