S.D.Ind.: Officers created their own exigency by going to defendant’s house in child porn case; good faith exception did not apply

Year old information of a child pornography download was insufficient to give PC to believe that the child porn was in the house because officers knew defendant had been out of the country for most of that year. The government’s exigent circumstances argument is classic police-created exigency by their showing up to attempt to search. The fact that computer information is easily destroyed is not enough. Inevitable discovery does not apply because no prior information was included in the affidavit for search warrant to show that it was truly inevitable. Finally, the good faith exception cannot apply because the officers could not believe their actions were lawful. United States v. Downey, 2009 U.S. Dist. LEXIS 62412 (S.D. Ind. July 21, 2009)*:

On the facts shown here, the government’s exigent circumstances argument presents a classic case of an exigency created by the officers themselves. For Fourth Amendment purposes, that is no exigency at all because it would allow such easy evasion of the warrant requirement. See United States v. Rosselli, 506 F.2d 627, 630 (7th Cir. 1974) (Stevens, J.) (affirming suppression of evidence seized after police knocked on door and heard scuffling; although exigency was not “contrived by the agents,” it was foreseeable, and recognizing this as exigent circumstance “might lend itself to too easy a by-pass of the constitutional requirement that probable cause should generally be assessed by a neutral and detached magistrate before the citizen’s privacy is invaded”).

It is important to remember that the detectives had developed very little new information before the warrantless entry of the home. They already had reason to believe that Downey was staying at the house. From outside the threshold, Claassen could not see Downey using a computer or even that he had a computer. The only new information the detectives obtained at the door was that Downey did not want them to enter the home. If an individual’s aversion to a warrantless entry of his home provided police officers with legal authority to enter the home, the Fourth Amendment’s warrant requirement would become hollow. This is not a case where officers developed critical new information before entering the home (for instance, seeing drugs through an open window) and had reason to believe that the evidence would be destroyed if they did not secure the house immediately. The officers’ warrantless entry into the house violated the Fourth Amendment. Unless an exception to the exclusionary rule applies, evidence obtained by virtue of the illegal entry must be suppressed. United States v. McGraw, ___ F.3d ___, ___, 2009 U.S. App. LEXIS 14393, *9, 2009 WL 1885464, at *3 (7th Cir. July 2, 2009).

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To ensure that the inevitable discovery doctrine does not nullify the warrant requirement by permitting officers to conduct a warrantless search based on only probable cause, the Seventh Circuit requires the government to show that “a warrant would certainly, and not merely probably, have been issued had it been applied for.” United States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008) (finding discovery would have been inevitable where police were lawfully in apartment and plain view showed presence of cocaine; search warrant “certainly” would have issued for search of bags and other containers). In this case, the evidence shows that the detectives obtained the new warrant by relying on information they obtained by entering the house illegally. Gov’t Ex. 1 at 10-11. It is not at all certain that the officers could have obtained a search warrant without evidence that they obtained after they entered the home, so the inevitable discovery doctrine does not apply.

[posted 7/26]