CA8: Second entry was not within defendant’s consent to look for a suspect

Defendant consented to the first entry to the USM to look for another, and that man was arrested in the backyard, and the officer took him handcuffed back into the house. The second entry was not within the original consent. United States v. McMullin, 576 F.3d 810 (8th Cir. 2009):

The precise issue here is not withdrawal of consent, but whether, as McMullin argues, a new consent was required for the second entry. By the time Marshal Newlin sought re-entry into McMullin’s house, it is undisputed that the marshals had already completed their task of arresting Crowder in the backyard. There was no necessity or legal basis for the officer to re-enter the house. Under the circumstances of this case, we determine that Marshal Newlin’s re-entry exceeded the scope of McMullin’s consent and therefore violated the Fourth Amendment prohibition against unreasonable entries into a person’s house. Cf. United States v. Jones, 269 F.3d 919, 929 (8th Cir. 2001) (determining that a trooper’s detention of defendant “past the point necessary to complete his traffic stop investigation exceeded the scope of a lawfully initiated traffic stop.”).

We have examined the second entry cases in this circuit, none of which support a second, warrantless entry under the facts presented by the record. For example, in United States v. Carter, 854 F.2d 1102, 1104-06 (8th Cir. 1988), the officers first entered the motel room without a search warrant but with consent, and a second time, pursuant to a warrant issued based on plain view observation of cocaine on a table. Carter suggests that the proper procedure here should have been to secure a search warrant prior to the second entry. Carter also discusses exigent circumstances relating to an officer’s entry to a motel room to obtain clothes, mentioning similar circumstances in United States v. Gilbert, 774 F.2d 962, 963-64 (9th Cir. 1985), but these entries were made pursuant to consent as well. See 854 F.2d at 1106. Importantly, however, Carter notes the expectation of privacy associated with a person’s house. Id. at 1105. Furthermore, in United States v. Weston, 443 F.3d 661, 665 (8th Cir. 2006), a first search occurred pursuant to consent, while a subsequent search followed the issuance of a search warrant. Finally, in United States v. Lakoskey, 462 F.3d 965, 974 (8th Cir. 2006), this Court concluded that an officer’s second warrantless entry without consent or exigent circumstances violated the Fourth Amendment.

The government further argues that exigent circumstances, in the form of Marshal Newlin’s safety, made the re-entry reasonable under Fourth Amendment law. Although officer safety indeed constitutes exigent circumstances permitting a warrantless search, see United States v. Hill, 430 F.3d 939, 941 (8th Cir. 2005), this exception is inapplicable in light of the facts presented by the record. There was no testimony that the marshals feared Crowder and McMullin, and in any event, both had been detained and handcuffed in the backyard. 3 As for the other occupants of the house, Marshal Newlin’s testimony is insufficient to justify his re-entry into the house on grounds of officer safety. For example, Marshal Newlin did not testify that the occupants of the house acted belligerently or in a hostile manner. He did not testify that Crowder or McMullin signaled to the occupants in the house for help. Marshal Newlin did testify, however, that he observed no firearms or ammunition during his first visit in the house. On this record, it is not apparent that officer safety required re-entering the house, as opposed to keeping Crowder and McMullin in the backyard or taking them to the marshals’ vehicle.

The defendant took no precautions by no trespassing signs or fences to protect the curtilage from a police entry for a knock-and-talk. United States v. Bowyer, 2009 U.S. Dist. LEXIS 72127 (S.D. W.Va. August 14, 2009).*

Concerned identified citizen’s report that defendant probationer had a firearm was reasonable suspicion for a probation search. United States v. Balog, 2009 U.S. Dist. LEXIS 72312 (D. Utah August 13, 2009).*

[posted 8/20]