Defendant made a straw purchase of an AK-47, and they followed her where she was delivering it. Agents came to the door close on her heels, and they heard it locked. The warrantless entry was based on exigent circumstances. This was not an unreasonable police created exigency. United States v. Jackson, 2013 U.S. Dist. LEXIS 82352 (E.D. Va. June 11, 2013):
The Court believes that there is little doubt that the law enforcement officers had an objectively reasonable belief that their own safety could be jeopardized by a delay in entering the residence. The record adequately demonstrates that Defendant withdrew into the residence of a convicted felon while in possession of an AK-47 style semi-automatic assault firearm that fires powerful 7.62mm ammunition. The Court believes that the subject weapon itself presented a very high degree of danger to law enforcement.
Indeed, examining the conditions faced by the agents, the Court believes that the confluence of circumstances provided law enforcement with justifiable reasons to fear for officer safety. Despite Defendant's factual protestations, she is unable to escape the fundamental fact that Defendant disregarded law enforcement while in possession of an exceedingly dangerous firearm, withdrawing into the residence and locking the door behind her to prevent the entry of agents. The Court notes that the residence was that of a convicted felon, and the recent location of trafficking in crack cocaine. Despite having made their presence known, the agents received no response from the confirmed occupants within. Furthermore, the agents were unable to see into the residence in order to ascertain the danger they faced from within.
Standing outside of Mr. McLeod's residence and uncertain about how many individuals were present within, the agents in this case were faced with an inherently dangerous assault weapon that could have been removed, hidden, or possibly loaded and used against them from a concealed position. The Court also notes that a loaded SKS magazine was, in fact, found within the residence, further validating the agents' concerns that the weapon then was capable of use against law enforcement. (Tr. 151:8-21.) Viewing the situation in its totality, the agents could have reasonably found exigent circumstances justifying their warrantless entry at the time agents entered the residence. See Reed, 935 F.2d at 643 (per curiam)(holding that presence of guns within a residence, because of the inherent danger involved, justifies "searches and seizures on the basis of exigent circumstances"); United States v. Rodgers, 924 F.2d 219, 222-23 (11th Cir. 1991)(finding that exigent circumstances arose when police saw lying on a couch two handguns that suspect, a convicted felon, was not allowed to possess); Cephas, 254 F.3d at 495 ("the possibility of danger to police guarding the site" as a factor to be considered in analyzing the question of exigent circumstances").
To the extent that Defendant argues that the exigency was created by law enforcement, the Supreme Court has rejected the "police created exigency" doctrine previously developed by lower courts, stating that "the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense." Kentucky v. King, 131 S. Ct. 1849, 1858, 179 L. Ed. 2d 865 (2011). Indeed, the Supreme Court has held that it is immaterial whether law enforcement created the exigency upon which they rely to justify a warrantless search so long as they "did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment." Id.
Given the need for police to make complicated judgments in what frequently is a very short period of time, the exigent circumstances doctrine requires courts to give some deference to the decisions of trained law enforcement officers in the field and thereby to avoid "'unreasonable second-guessing' of the officers' assessment of the circumstances that they faced." Figg v. Schroeder, 312 F.3d 625, 639 (4th Cir. 2002)(quoting United States v. Montoya de Hernandez, 473 U.S. 531, 105 S. Ct. 3304, 87 L. Ed. 2d 381 (1985)).
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)