N.D.Ala.: No exigency for entry into home to seize gun for alleged safety of children

The entry into defendant’s house to search for a gun lacked exigent circumstances. There was nothing on which the officers could claim there was any risk. Moreover, defendant didn’t consent to their entry into the home. United States v. Mulato-Herrara, 2019 U.S. Dist. LEXIS 196530 (N.D. Ala. Nov. 13, 2019):

Despite this evidence, the United States argues that deputies would be leaving the children’s safety to chance by waiting for a search warrant to locate the evidence they sought. (See Doc. 28 at 10) (arguing that waiting for a warrant would require the deputies to “keep their fingers crossed that [Mr. Mulato] … was stable enough to remain alone with the children until a warrant was obtained”). According to the United States, the deputies had no choice but to stay in the home and ask about the gun. (Id. at 11). The deputies did have other choices, though—for example, following J.T.’s own suggestion that they request permission from Mr. Mulato to collect the children and bring them to her.

More importantly, the assumption underlying the United States’ argument is that the deputies sought the “evidence” (the gun) because of the exigency (the fear for the children’s safety). The evidence presented at the suppression hearing, however, establishes that the deputies sought the gun in relation to the crime J.T. had reported (menacing), not the exigency the officers feared (the welfare of the children). Asked why there was an interest in the gun after the officers confirmed that the children were fine, Deputy Smith testified, “at that point we want[ed] to see if that weapon is—investigate to see if that weapon was the weapon involved in the crime.” (Doc. 25 at 79). Deputy O’Brien characterized finding the weapon as the “main focus” of the investigation followed by checking on the children. (Doc. 25 at 131 (emphasis added)). Putting aside the deputies’ subjective reasons for their search, the court reiterates its conclusion that a reasonable officer would have believed the exigency was over after finding the children safe and Mr. Mulato in a calm and sober state.

The court finds that the deputies’ interest in finding the gun was not related to the children’s safety, but instead to their interest in finding evidence of the crime of menacing. And although the officers undisputedly had probable cause to believe that Mr. Mulato had committed that crime, and that the house contained evidence of that crime, probable cause to believe evidence of a crime exists is not probable cause to believe an exigency exists. If it were, the police would never need a warrant where they believe a house contains evidence of a crime. In this case, the deputies did have probable cause to believe that Mr. Mulato had committed a crime and that he harbored evidence of that crime; they also, for a time, had probable cause to believe that an exigency warranted their warrantless entry into Mr. Mulato’s house. The probable cause to believe Mr. Mulato had committed a crime and possessed evidence of that crime persisted, but the exigency supporting the warrantless entry did not. Once that exigency ended, the deputies needed to obtain a warrant or satisfy some other exception to the warrant requirement before they could search Mr. Mulato’s house. See United States v. Santa, 236 F.3d 662, 676 (11th Cir. 2000) (stating that a consent search can be constitutional despite an illegal entry). This they did not do.