E.D.Wis.: A general “clothing and accessories exception” rejected

Defendant was arrested outside his house, and the police had no reason to believe anyone else was in the house. A protective sweep of the house was invalid, and the view of a gun case was suppressed and had to be excised from the affidavit for later search warrant. The affidavit for the search warrant was plagued with exaggerations and misstatements which greatly concerns the court because this was a double homicide investigation. The court also rejects the “clothing and accessories exception” proferred by the government. United States v. McMillian, 2012 U.S. Dist. LEXIS 10841 (E.D. Wis. January 27, 2012):

The “clothing and accessories” exception purports to justify a law enforcement officer’s warrantless entry into a partially clothed arrestee’s home for the limited purpose of retrieving clothing or shoes for that arrestee. United States v. Jackson, 414 F. Supp. 2d 495, 504 (D.N.J. 2006). A review of the cases from the circuits that have recognized the exception shows that the exception generally fall under one of two categories. The first and more common category is an off-shoot of the already recognized exigent circumstances exception to the Fourth Amendment. United States v. Clay, 408 F.3d 214 (5th Cir. 2005) (finding that the need to procure footwear for barefoot arrestee constituted exigent circumstances justifying officer’s return to the bedroom); United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000) (finding an arrestee’s partially clothed status may constitute an exigency justifying an officer’s temporary reentry into the arrestee’s home to retrieve clothes reasonably calculated to lessen the risk of injury to the arrestee); see also United States v. Nascimento, 491 F.3d 25, 50 (1st Cir. 2007) (finding the need to dress a defendant may constitute an exigency justifying officers in entering another room to obtain clothing; however, also finding “[g]eneralizations are hazardous”); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (allowing officers to retrieve shoes for defendant because broken glass in the area where defendant was arrested presented a legitimate health and safety risk; however, finding that “entry into the defendant’s residence cannot be effected, in the absence of consent or exigent circumstances, solely upon the desire of law enforcement officers to complete the arrestee’s wardrobe”).

This is distinct from the situation in Washington v. Chrisman, 455 U.S. 1 (1982). In that case, the police arrested a student on campus but allowed him to go to his dorm room to get his identification card. While in the dorm room, the police observed contraband in plain view. The court held that the officer’s entry into the student’s dorm room was lawful. Id. at 7. The Court explained that incident to his arrest of the student, the officer’s “need to ensure his own safety-as well as the integrity of the arrest” was “compelling” justification for him to accompany the student to his dorm room. Id.

The second and outlier category stems from a so-called duty to find clothing for a defendant. United States v. DiStefano, 555 F.2d 1094 (2nd Cir. 1977) (finding the officers had a duty to find clothing for an arrestee clad only in a nightgown and bathrobe or permit her to do so). To date, two circuits have rejected the underlying rationale for the clothing exception. United States v. Whitten, 706 F.2d 1000, 1016 (9th Cir. 1983) (finding officer’s entry into room without specific request or consent unlawful); United States v. Kinney, 638 F.2d 941, 945 (6th Cir. 1981) (entry cannot be justified when defendant did not request permission to secure additional clothing and did not consent to an entry of his home).

The Seventh Circuit has not addressed either variant of the clothing exception. Indeed, the clothing exception appears to expand the Supreme Court’s and this circuit’s exigent circumstances line of cases. U.S. v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998) (“Exigent circumstances exist when there is a compelling need for official action and no time to secure a warrant”); U.S. v. Webb, 83 F.3d 913, 916 (7th Cir. 1996) (“Exigent circumstances exist when there is a reasonable belief by police that their safety, or the safety of the public, may be threatened.”). Accordingly, I agree with the district court in Jackson, 414 F. Supp. 2d at 504 n.11, that it is “a dubious proposition that the Court contemplated the evanescent risks associated with transporting a barefoot or shirtless criminal suspect to police headquarters as exigent circumstances sufficient to dispense with the Fourth Amendment’s warrant requirement.”

Moreover, even if I were to apply the “clothing and accessories” exception advanced by the government, the record does not support that McMillian’s lack of shoes amounted to an exigent circumstance or posed any risk to his health or safety. McMillian was arrested in the daytime, in July, in Milwaukee – not in the dead of night in a typical Milwaukee winter. See, e.g., Gwinn, 219 F.3d 326 at 333 (the court found exigent circumstance to enter trailer and retrieve clothing and shoes where defendant was arrested shirtless and barefooted on a cool late night in May in a remote location in rural West Virginia). There is also no evidence that any dangerous conditions such as broken glass, hazardous waste, not even rain existed to impede McMillian’s walk to the squad car. See e.g., Butler, 980 F.2d at 621-22 (court found police’s warrantless entry into defendant’s residence justified by health and safety concern for barefooted defendant who was arrested in area with broken glass).

Given the lack of authority from the Seventh Circuit on this exception and the lack of a factual record justifying its application, I do not find that the “clothing and accessories” exception validates the warrantless entry into the bedroom in this case.