S.D.N.Y.: Possible unknown escape route with weapons present was exigent circumstances

Exigent circumstances for a warrantless entry in a kilo heroin case was present from the presence of weapons and a possible unknown escape route[!]. United States v. Mendoza, 2009 U.S. Dist. LEXIS 68718 (S.D. N.Y. August 6, 2009):

Analysis of the balance of the Second Circuit’s illustrative guideposts for determining whether exigent circumstances justify warrantless entry supports the lawfulness of the agent’s entry into the home in pursuit of Mendoza. First, the Second Circuit has found that suspected sale of large quantities of drugs is a “serious” offense — and the transaction alleged here was to be for nearly a kilogram of heroin. See Gordlis, 982 F.2d at 69; MacDonald, 916 F.2d at 770. Second, although the agents testified that they observed no weapons in the course of the operation that led to Mendoza’s arrest, Tr. 34, Agent Crowe testified that in his experience it was typical for narcotics traffickers to keep weapons in a stash house. Tr. 58. Just as “narcotics agents are entitled to use their knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic,” United States v. Manning, 448 F.3d 992, 998-99 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 995 (1971), so too is it proper to afford some weight to a reasonable fear, based on years of experience, that there might be weapons present in a home the agents had probable cause to believe was a stash house for narcotics. Consequently, this second factor cuts somewhat in favor of exigent circumstances.

Under the fourth factor, the agents clearly had “strong reason to believe that the suspect [was] in the premises being entered,” MacDonald, 916 F.2d at 769-70, because they not only observed Mendoza return to the home but also directly observed him through the glass of the front door. With respect to the fifth guidepost factor, there was arguably some “likelihood that the suspect [would] escape if not swiftly apprehended,” id., although the number of agents involved in the operation suggests that they could have relatively easily surrounded the home to prevent an escape, and they in fact did so. Nevertheless, the agents who made the initial entry to the home “did not know whether there was a rear door” and “[t]he possibility of an unknown exit also had to be considered.” Miles, 889 F.2d at 383. Finally, although the agents’ entry was anything but peaceful, the agents did attempt a peaceful entry by knocking and announcing their presence. Though far from dispositive, this counts for something. See MacDonald, 916 F.2d at 770 (“[T]he agents acted in accordance with the law, and first attempted to effect a peaceful entry by knocking and announcing themselves.”)

Under the totality of circumstances, even a minor use of force could be unreasonable in this case, so summary judgment for the defendants is denied. Johnson v. Wild Acres Lakes Prop. & Homeowners Ass’n, 2009 U.S. Dist. LEXIS 68641 (M.D. Pa. August 6, 2009).*