CA3: Neither SI, exigency, nor protective sweep permitted re-entry to locate gun

A protective sweep had already occurred and defendant had been removed from his house in handcuffs and the house secured. A gun was suspected as unaccounted for, so they went back to look for it, and this was unreasonable. The defendant actually walked by the gun but he was under the officer’s control and he didn’t make a move toward it. The officers, however, did not see the gun. The exigent circumstances exception did not apply to re-entering the house to look for the gun. United States v. Mallory, 2014 U.S. App. LEXIS 17228 (3d Cir. September 3, 2014):

The Government makes much of the fact that the gun lay in the path that the officers took in escorting Mallory out of the house, a fact of which Mallory was aware but the police were not, and that Mallory could have “lunge[d] for the hidden and very nearby gun.” Gov’t Br. at 28-29. This argument has some merit. But nonetheless, Mallory was handcuffed and under the control of multiple officers and he had not — since coming under the officers’ control — acted violently or aggressively. Likewise, we recognize that Mallory’s alleged crime had taken place only minutes earlier and that the crime of unlawful possession of a firearm, while not itself a crime of violence, could certainly lead the officers to reasonably be concerned that their suspect could be dangerous. However, the officers’ securing of the premises and apprehension of Mallory were intervening events allaying any imminent need to locate the gun.

The Government also argues that the search was justified by a need to prevent the gun from being moved and hidden, in order to preserve evidence of the crime. The exigent circumstances doctrine allows the police to engage in a warrantless search in order to prevent “the ‘imminent destruction of evidence.'” United States v. King, 604 F.3d 125, 147 (3d Cir. 2010) (quoting Couden, 446 F.3d at 496). We reject this argument for many of the same reasons that we reject the Government’s prior argument. The Government presented no evidence that there was an imminent risk that a family member would move the gun. As we noted above, there is no evidence that the family members even knew where it was. In fact, the evidence of record suggests that every family member but Delaine was under supervision outside the house, and Delaine had demonstrated her compliance by cooperating with the officers. As the District Court noted, once Mallory was secured “speed was not essential … and anyone else who could have destroyed or hidden the gun was under police supervision.” Mallory, 2013 U.S. Dist. LEXIS 33532, 2013 WL 943407, at *11. At that point, nothing prevented the officers from continuing to control the residence and prevent the family from finding and moving the gun until they could obtain a search warrant. See Illinois v. McArthur, 531 U.S. 326, 331-32, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001) (allowing police to prevent a man whom they had probable cause to believe had hidden marijuana in his trailer, and which he would likely destroy if permitted, from reentering his home for two hours while they obtained a search warrant).

IV.

If Lopez “press[ed] close to the outer limit of the Fourth Amendment,” 989 F.2d at 27, then this case falls just outside it. We do not mean to underplay the dangers that police officers may face when pursuing a suspect into an unfamiliar building. Nonetheless, once the officers had secured the premises and apprehended Mallory, the exigencies of the moment abated and the warrant requirement reattached. We therefore affirm the order of the District Court granting Mallory’s motion to suppress.