CA1: No exigency for warrantless entry on a DV complaint even with a known gun in the house, and unconnected to the complaint

PR police were called to a DV situation involving a police officer as a suspect. The officer’s firearm did not factor into the DV complaint, and the argument wasn’t even face-to-face. The mere fact of a gun in the house did not justify an entry without some reasonable suspicion it would be used in a crime of violence. Remanded, however, for a determination of consent. United States v. Rodríguez-Pacheco, 2020 U.S. App. LEXIS 1360 (1st Cir. Jan. 15, 2020):

Here, Rodríguez had threatened (in a generic sense) his victim, yes, but not with a gun and not face-to-face. Additionally, he was not armed at any point during his encounter with his fellow officers, nor had he given the officers any indication that he would turn violent and become a danger to them. Indeed, they never handcuffed him nor did a protective sweep, apparently never in fear for their safety as Rodríguez remained passive, nor did they ever express any concern that some other resident of the house might access the gun to hide or misuse it. Moreover, Rodríguez did not flee when the officers showed up, but instead was, by the officers’ own accounts, fully cooperative. And although the officers in Rodríguez’s case knew there was a gun “nearby,” as was the case in Lopez, this gun was not alleged to have played a role in the recent commission of a violent crime against a victim who was still on-scene. The fact that the officers knew a gun was in the house, without more, is not sufficient under our precedent to demonstrate exigent circumstances.

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