Post details: CA4: Report of live grenade in house still wasn't exigency without knowing more

02/17/13

Permalink 07:55:35 am, by fourth, 376 words, 720 views   English (US)
Categories: General

CA4: Report of live grenade in house still wasn't exigency without knowing more

The mere presence of an alleged live grenade, without more, did not justify exigency for a police entry into defendant’s house. In fact, it turned out that the grenade was last seen by defendant’s wife, the reporter to them, two years earlier, although the police didn't know that at the time. See United States v. Bonitz, 826 F.2d 954, 957 (10th Cir. 1987) (concluding no exigency existed where officers found cans of gun powder because "[s]tanding undisturbed, cans of gun powder are inert"). United States v. Yengel, 711 F.3d 392 (4th Cir. 2013):

[More:]

Regardless of the particular exigency being invoked, we have repeatedly found the non-exhaustive list of factors first provided in United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981), to be helpful in determining whether an exigency reasonably justified a warrantless search. Hill, 649 F.3d at 265. The Turner factors include:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the officers' reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband.

650 F.2d at 528. ...

Mrs. Yengel informed Sergeant Staton only that there was a "grenade" inside the house, and provided no indication that there might be other, more unstable explosives, inside as well. Mrs. Yengel also provided no indication to Sergeant Staton as to when she had last seen the grenade that could support a conclusion the grenade was somehow "live" or could detonate at any moment.4 Indeed, even the presence of explosive materials alone, while heightening the danger, would not automatically provide an exigent basis for a search. See United States v. Bonitz, 826 F.2d 954, 957 (10th Cir. 1987) (concluding no exigency existed where officers found cans of gun powder because "[s]tanding undisturbed, cans of gun powder are inert"). The presence of explosive materials must be tied to objective facts that sufficiently increase the likelihood, urgency, and magnitude of the threat to the level of an emergency. We find no clear error in the district court's factual finding that a grenade is a stable, inert explosive device that typically requires human intervention to detonate and cause harm.

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