CA5: Warning potential victim of a hit on him overheard on a wiretap didn’t dissipate the exigency to try to stop it

The FBI learned through a wiretap that a person had a hit out on him by defendant, and succeeded in finding him and warning him. The mere fact he was warned didn’t dissipate the exigency because, until defendant was rounded up, it could still happen. United States v. Toussaint, 2016 U.S. App. LEXIS 17357 (5th Cir. Sept. 22, 2016), revg, United States v. Toussaint, 117 F. Supp. 3d 822 (E.D. La. 2015):

The objective facts—that is, those divorced from the officers’ response to the threat on Toussaint’s life—are straightforward. FBI agents overheard a threat. A suspected felon gave an associate permission to kill the defendant, and no one—including the district court—contested that that threat was credible. After intercepting the threat, officers searched for the potential victim, found him, and informed him of it—all within forty-five minutes of the first indication that his life was in danger.

From those objective facts, the district court concluded that the exigency had dissipated by the time the officers pulled Toussaint over, citing the forty-five minutes between threat and arrest, the lack of gunfire or signs of distress in the neighborhood, and the absence of anyone menacing Toussaint’s vehicle when officers discovered it. But the main thrust of the district court’s theory is not that there was no objectively reasonable basis for concluding an emergency existed, but rather that the officers’ subjective actions indicate they did not think one existed. That was error.

In both Stuart and Fisher, the Court emphasized that the intentions and beliefs of the officers do not inform whether there was an emergency, yet it is obvious from the district court’s opinion that it was especially concerned with (1) Roniger’s decision to confer with his fellow officers before combing the neighborhood for Toussaint and (2) Cadet’s decision to pace the car instead of pulling it over immediately. The district court ignored the directives that the actions of officers when they confront an exigency matter only insofar as they indicate whether there was an objectively reasonable basis for believing an emergency existed and that officers’ subjective motivations are never relevant. A district court not only must examine the actions of the officers but also must consider whether an objectively reasonable person might have acted differently from how the officers responded. This case is a hornbook example of precisely that distinction, which the district court should have recognized.

Again we look to the objective facts. Police officers receive what all agree is a credible threat against a specific individual, who is located within a specific area of the city and is driving a particularly-described vehicle. Then 45 minutes pass without incident. But no one could conclude from just those facts that was no objectively reasonable basis for thinking an emergency persisted. A period of 45 minutes is far less time than it may take to pull off a hit. And that there was no gunfire or any suspicious cars following Toussaint is not any sort of proof that the hit had been canceled; to the contrary, it is more than objectively reasonable to conclude that Williams’s associate had not yet conducted the hit.