D.Mass.: The govt had burden on exigency and it failed

The government failed to prove that exigency justified its warrantless entry. United States v. Caballero, 2018 U.S. Dist. LEXIS 182505 (D. Mass. Oct. 24, 2018)*:

The testimony, even taken as a whole, is conclusory and insufficient. It articulates no particular, case-specific facts supporting Agent Karangekis’ belief that some exigency existed. No testimony was offered describing specifically the size, consistency, or makeup of the drugs that could have subjected them to destruction. Nor was there testimony about the means of destruction feared or how it would be quickly accomplished. And there was no reference to any agent’s experience or training applicable to the drugs or the circumstances of this case. Instead, the testimony simply lists sources of evidence—not facts—establishing probable cause for the commission of the underlying crimes. “Probable cause is a necessary, but not a sufficient, precondition for invoking the exigent circumstances doctrine.” United States v. Almonte-Báez, 857 F.3d 27, 31 (1st Cir. 2017). Other than speculation that evidence “could be moved or destroyed” and individuals “could have” left, the factual bases of Agent Karangekis’ belief were never addressed. And his apparent concern that someone could leave undetected is belied by his testimony and Detective Hamel’s testimony that officers were stationed at the back of the house. The government therefore has not met its burden, and the court must conclude that the initial entry was unlawful.

This conclusion results from the weight of burden rather than the weight of evidence. The government surely could have established facts grounding a reasonable belief that delay would result in loss of evidence, but it did not. For example, Agent Karangekis would have been justified in believing that securing the premises from the outside or arresting Carrasquillo on his way out of the house would have alerted those within to police presence and caused the destruction of evidence. See United States v. Edwards, 602 F.2d 458 (1st Cir. 1979) (“[T]he possibility that evidence will be destroyed by defendants who have discovered government surveillance of their activities often has been recognized as a sufficient exigency to justify warrantless entry.”) (emphasis added); see also United States v. Smalls, 617 F. Supp. 2d 1240, 1257 (S.D. Fla. 2008) (holding exigent circumstances existed after defendant answered knock at his door, exposing contraband to plain view).

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