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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)