E.D.Tex.: Self-created exigency did not justify this warrantless entry

Motion to suppress granted. Officers created their own exigency for this entry by approaching the property in the first place. They had no warrant. United States v. Willis, 711 F. Supp. 2d 683 (E.D. Tex. 2010), Adopted by, Objection overruled by, Findings of fact/conclusions of law at 2010 U.S. Dist. LEXIS 45905 (E.D. Tex., May 10, 2010):

Turning to the present case, the Court finds that if exigent circumstances existed, the exigency was caused by the officers’ conduct. Despite somewhat contradictory testimony, the Court credits the officers’ belief they were in danger when positioned on Defendant’s property. See Rico, 51 F.3d at 501 (finding it reasonable to believe officers were in danger when standing in front yard and residence’s occupants were thought to be armed). Based on the officers’ testimony, however, the Court fails to find any conduct or actions on the part of individuals on Defendant’s property that prompted the officers’ decision to approach the residence. Compare id. at 505-06 (finding suspects’ actions created exigent circumstances justifying officers’ approach of residence) with Vega, 221 F.3d at 800 (finding officers’ approach of residence not justified “by an absence of time to secure warrant or by any other reasonable predicate”); Munoz-Guerra, 788 F.2d at 298 (finding officers’ unprovoked approach of residence created exigent circumstances). Rather, the officers’ approach into a dangerous situation without a warrant was without a reasonable predicate. Moreover, with the tip as to Creson’s whereabouts coming early in the afternoon on a weekday, officers had the opportunity to obtain a warrant prior to approaching the house. Compare Menchaca-Castruita, 587 F.3d at 294 (finding “‘the amount of time necessary to obtain a warrant’ likely would be minimal, as the incident took place early on a weekday afternoon – as opposed to late in the evening or on a weekend when officers might not have had ready access to a magistrate”) with Rico, 51 F.3d at 503 (concluding officers’ approach was reasonable because there was inadequate time to obtain a warrant). There appears to have been no reason why surveillance could not have been conducted while another officer quickly obtained a warrant. Indeed, the officers were able to obtain a warrant for Defendant’s residence within two hours of executing the initial warrantless search, see DEF.’S MOT. at EX. 1, and, as Officer Wingo testified, the risk to the officers would not have increased had they waited for the warrant. See Munoz-Guerra, 788 F.2d at 298 (finding “no basis, on these facts, for believing that resort to a magistrate would have created risks of a greater magnitude than these, which are present in any case where the police has probable cause but delay pending receipt of a warrant”).