CA6 applies GFE to a warrantless search to save the gov’t from a waiver issue

The court found the entry to defendant’s backyard invalid in 2012 (United States v. Fugate, 499 Fed. Appx. 514 (6th Cir. 2012)) because of waiver of an argument by the government. The case was remanded for a determination of whether the good faith exception applied. This was a robbery where the victim was shot with the police in hot pursuit [those words never spoken in the opinion] of the car after citizens were also in pursuit and broke it off after the driver shot at them. This was in good faith because the officer was in the backyard within 15 minutes of the robbery, and it was clearly exigent in the chase for the robber. United States v. Fugate, 2014 U.S. App. LEXIS 24096 (6th Cir. December 18, 2014):

On remand, the district court concluded that the sole question was whether Officer Saylors’ warrantless entry into the curtilage was “sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009). It concluded that the officer was not culpable because the warrantless entry into the yard was “close enough to the line of validity” to make his conduct objectively reasonable. Fugate, 2013 WL 3207083, at *8. The district court was persuaded that Saylors had an “objectively reasonable belief” that under the circumstances his limited entry into the backyard was legally permissible due to exigent circumstances. United States v. Daws, 711 F.3d 725, 728 (6th Cir. 2013). There is no evidence that Saylors believed his conduct was unconstitutional or “deliberate, reckless, or grossly negligent.” Id.

We conclude that Officer Saylors’ entry into the yard without a warrant at least satisfies the Leon good-faith exception. Officer Saylors saw from the alley what he reasonably thought might be the getaway car. He entered the yard and reasonably believed he had found the car based on the description, as well as the cash and cash tray strewn about in the car and the yard. He discovered the car just 30 minutes after the robbery had occurred, and about 15 minutes after the pursuing citizens had abandoned their chase. Police were actively searching for the getaway car in the area. In fact, Saylors testified that, in his experience, “whenever somebody’s circling an area, that means that they’re trying to get home.” Supp. Hr’g Tr. at 51. The gravity of the underlying offense and the continuing danger to the local community are factors to be considered. As a general rule, police are given more leeway when the crime is serious, a dangerous felon is at large and public safety is threatened. Welsh v. Wisconsin, 466 U.S. 740, 751 (1984). In this case, there is no doubt that the crime that had been committed was serious. The suspect had shot a convenience store clerk during the course of an armed robbery, and then shot at the citizens who were following him as he attempted to escape. The suspect was armed and dangerous and remained a threat to the community so long as he was at large.