8th Cir. en banc: Escapee had no expectation of privacy in his hiding place because his presence was wrongful

A prison escapee had no reasonable expectation of privacy in the place entered to capture him. Also, the prison issued an administrative arrest warrant which was valid [concurring judges find it invalid but saved by good faith exception]. United States v. Lucas, 499 F.3d 769 (8th Cir. 2007) (en banc), reversing United States v. Lucas, 451 F.3d 492 (8th Cir. 2006):

As an escapee Lucas had only a minimal expectation of privacy in Scaife’s apartment. See Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978). Prisoners like Lucas who are on work release are subject to special restrictions just like probationers. Their liberty is legitimately constrained because “[p]robation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.” Griffin, 483 U.S. at 874 (internal quotation marks and citation omitted). The state has a duty to protect the community from harm when a probationer or escaped prisoner is “at large.” Id. at 875. For these reasons a warrantless search of a probationer’s home without probable cause is permissible if it is based on the reasonable suspicion of the probation officer. United States v. Knights, 534 U.S. 112, 121-22 (2001). The officers’ entry into Scaife’s apartment did not violate the Fourth Amendment since Lucas was a convicted escapee whom they were seeking under the authority of a valid administrative warrant issued by the responsible state official who had reasonable cause to believe that Lucas had escaped.

Lucas as an escapee from lawful custody had an even more circumscribed expectation of privacy than the probationer in Knights or the parolee in Samson v. California, 126 S. Ct. 2193, 2200 (2006) (state’s “overwhelming interest in supervising parolees” justified a warrantless search). Lucas had to sign a personalized plan agreeing to the terms of his work release program before he could participate in it, and these terms required him to return to the community corrections center after work. See Neb. Dep’t of Correctional Servs. Reg. 201.06 & app., available at http://www.corrections.state.ne.us/policies/files/201.06.pdf; see also Trial Tr. at 259 (stipulation that Lucas was obligated to return to Omaha Community Corrections Center after work). That Lucas expected to be recaptured wherever discovered is evidenced by his comment to the arresting officers, “Damn, I knew I was going to get caught eventually.”

Police received several 911 calls of gunshots from a particular apartment by an Hispanic male and pellets were falling in the parking lot. Police arrived and encountered defendant who admitted he lived in the apartment. Officers could not get in the apartment, and they attempted and failed to pick the lock. Finally, after ten minutes, they kicked in the door to do a “protective sweep” for the weapon and possible victims. A few shotgun shells were seen, and no evidence was seized. They retreated, stood at the door and sought a search warrant. The initial entry was based on a clear exigency. United States v. Valencia, 499 F.3d 813 (8th Cir. 2007):

In this case, the circumstances giving rise to exigency are clear. Several shotgun blasts were heard coming from an urban apartment. Some pellets landed across the street. When police arrived, they encountered the apparent tenant of the apartment where the shots allegedly originated, and he denied responsibility. Another part-time occupant refused to shed any light on the situation. As a result, all the police officers could have reasonably known at the time they entered Valencia’s apartment was that a deadly weapon had been fired multiple times by someone from that location roughly thirty minutes earlier, and some pellets from one or more of those shells landed across the street. The other shells were unaccounted for, no one had confessed to firing a weapon, and no weapon had been found. Viewing the circumstances objectively, these facts create clear justification for a reasonable law-enforcement officer to enter the apartment without a warrant to secure the shotgun and to discern if the shooter or any victims in need of medical attention remained inside.

Comment: This is an example of the phase “protective sweep” taking on a broader meaning to include a sweep for weapons and victims and not a person hiding who may “launch an attack” as originally envisioned by the Supreme Court when it first used the phrase in Maryland v. Buie, 494 U.S. 325 (1990).