D.Me.: Officer’s comments and actions on body recorder belie any need for protective sweep

Officers went to defendant’s mobile home on a knock-and-talk based on an attempt to buy a gun two weeks earlier that was denied because the address given didn’t match the driver’s license. At the door of the mobile home, the officers smelled marijuana and asked about how much was inside. Defendant answered: “A lot.” The officer’s claim of exigency for a protective sweep was belied by the record. There was no perceived threat inside, and the officers never acted like there was one. United States v. Leonard, 2017 U.S. Dist. LEXIS 179075 (D. Me. Oct. 30, 2017):

It is possible to envision a scenario where the police, lawfully at a doorstep, perceive such a significant threat from within a home as to create an officer safety justification for a warrantless entry based on exigent circumstances. The evidence presented at the hearing, however, falls short.

The analysis must focus on the facts that were known to the police at the moment that Det. Tapley crossed the threshold into the house without a warrant. It is true that Det. Tapley knew that Mr. Stanley was a felon, but he was aware that Mr. Stanley’s felony conviction was for receiving stolen property as opposed to some other violent offense. Further, the police did not have a warrant to arrest Mr. Stanley, and SA Durkin noted at the scene that the police “did not have anything on him.” One week prior, Det. Tapley himself had arrested Mr. Stanley on warrants for unpaid fines without any trouble. There is no evidence suggesting that Mr. Stanley was violent or otherwise unstable. While it is true that the police were investigating an attempted straw purchase of a firearm for Mr. Stanley, Det. Tapley knew that Mr. Leonard had not been able to purchase the firearm at the Double Diamond. There is no evidence suggesting that Mr. Stanley possessed a gun inside the trailer. See Delgado-Perez, 867 F.3d at 256 (“[L]ack of information cannot provide an articulable basis upon which to justify a protective sweep.”).

Furthermore, Det. Tapley’s conduct is inconsistent with the Government’s claim that Mr. Stanley posed a threat to officer safety. Det. Tapley did not even tell SA Durkin that he was going into the trailer when he initially entered. Nor did Det. Tapley call for any back up. Det. Tapley testified that he “hoped” he had drawn his weapon, but he could not recall. I find it difficult to believe that Det. Tapley would not have recalled drawing his weapon if he had, and I believe it is more likely than not that he did not draw his weapon.

Det. Tapley’s conduct after he went into the trailer also undermines the Government’s claim that the police perceived a threat to their safety. As the recording reveals, Det. Tapley’s tone was colloquial as he called Mr. Stanley by his first name: “Harley come out. Harley! Where are ya?” Det. Tapley came in and out of the trailer several times to check in with SA Durkin, but he never warned SA Durkin to move out of range or asked him for help in the search for Mr. Stanley. Tellingly, Det. Tapley asked Ms. Bean to come inside to make sure he had not missed a hiding place. No police officer fearing an ambush would involve an innocent bystander.

It is clear from the recording that SA Durkin did not perceive any exigency either. When SA Durkin heard Det. Tapley conducting his search and learned that Mr. Stanley was present, he responded, “Oh, ok,” and then changed the subject to MC’s bad behavior. Approximately a minute later, SA Durkin observed to Det. Tapley that he could hear Mr. Stanley in the trailer, and then he immediately resumed trying to interview Mr. Leonard about the suspected straw purchase. If SA Durkin believed that Mr. Stanley posed a threat, I am quite confident that he would have led MC to safety. Instead, SA Durkin, Mr. Leonard, and MC stayed outside the trailer within a few feet of a bedroom window. When Officer St. Amant arrived, SA Durkin told him that he could find Det. Tapley inside the trailer, but SA Durkin did not provide Officer St. Amant with any warning regarding the possible presence of Mr. Stanley.

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