Heat of kidnaping investigation justified warrantless entry of hotel safe

Government agents were in the heat of a kidnapping investigation, trying to locate the victim. They had consent to enter defendant’s hotel room from his girlfriend, but she did not know the combination he picked for the hotel safe. Her consent to enter did not extend to the hotel safe, but the officers had exigent circumstances to get into the safe with the help of the hotel without a warrant to look for anything that might assist in locating the kidnapping victim. United States v. Bell, 500 F.3d 609 (7th Cir. 2007):

In this particular case, there was no question that the police were entitled to enter and search Bell’s hotel room. Disregarding any potential exigent circumstances, Bell’s girlfriend consented to the search of the hotel room, and the prohibition on warrantless searches does not apply to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who shares, or is reasonably believed to share, authority over the area. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 1518 (2006); Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). In this case, there is no dispute that Bell’s girlfriend could and did consent to a search of the hotel room. Likewise, there is no dispute that she lacked access to or authority over the safe and could not, therefore, consent to its search.

The only question, therefore, is whether the government can bear the burden of demonstrating that the police faced exigent circumstances when they searched the safe. See United States v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998). Exigent circumstances exist if a officer had an objectively “reasonable belief that there was a compelling need to act and no time to obtain a warrant.” United States v. Andrews, 442 F.3d 996, 1000 (7th Cir. 2006). Bell argues first that any exigencies dissolved once the police arrived and realized that the kidnapping victim, Colon, was not and never had been in the room. Furthermore, he argues that the police had ample time to obtain a warrant.

The question as to whether exigent circumstances exist is viewed through the eyes of a reasonable police officer. Stuart, 126 S. Ct. at 1948. When the officers arrived, they did indeed conclude that Colon was not in the room and never had been there. That conclusion, however, did not eviscerate the exigency. When the officers arrived at the Holiday Inn at 1:30 a.m., Colon was still missing and the ransom was four hours late. The kidnappers, who had already threatened to kill Colon, had called the victim’s family again demanding to know why the ransom had not yet been paid. Police officers also knew that the kidnappers were conducting counter-surveillance and that they probably knew that Bell had been arrested.

Bell argues that because Colon himself could not have been hidden in the small safe there were no exigencies that permitted a search of the safe. Although it is true that there was no evidence that Colon had ever been in the room, there was a great deal of evidence to suggest that Bell had been in the room and the officers had compelling reasons to suspect that Bell was involved in the kidnapping. They did not believe that the kidnappers would have trusted a complete stranger to pick up $100,000 in ransom, and the force with which Bell resisted arrest made the officers believe that he knew he was on the hook for a serious crime. By the time they found the safe, the officers knew that Bell had lied about being homeless (they knew that, at a minimum, he had been renting a hotel room for a long time and paying in cash), that he lied about having checked out of the Holiday Inn, and that he had tried to conceal the location of the Holiday Inn in which he had been staying. Of course Colon himself could not have been concealed in the safe, but it could have contained phone numbers to reach accomplices, maps to a hide-out location, notes about the kidnapping plan, or Mr. Colon’s wallet or car keys or other personal effects that would have confirmed Bell’s knowledge of Colon’s whereabouts.

Comment: This is the classic sliding scale of exigent circumstances referred to by Justice Jackson dissenting in Brinegar v. United States, 338 U.S. 160, 183 (1949):

If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.