The package had a GPS and a trigger “alarm” or alert for when it was opened. Here, however, the trigger alert was subject to failure if the package was dropped with sufficient force. Officers assembled outside the apartment, and the alert went off and they heard noises inside. On the totality, officers had exigent circumstances to enter to prevent potential destruction of evidence. Despite the false alert, the entry was reasonable. United States v. Iwai, 2016 U.S. Dist. LEXIS 63399 (D.Haw. May 13, 2016):
The officers breached the front door and entered the apartment. They immediately saw Defendant Iwai near the kitchen area. He was the only occupant of the unit. The officers also saw the package. It was unopened.
1. The Officers Entered Defendant’s Apartment Under Exigent Circumstances to Prevent the Imminent Destruction of Evidence
The totality of the circumstances establishes that the officers had probable cause to believe that evidence faced the threat of imminent destruction, and that they entered Defendant Iwai’s apartment to prevent such an event from occurring. See United States v. McCabe, 582 F. App’x 680, 682 (9th Cir. 2014) (stating that “exigencies must be viewed from the totality of circumstances known to the officers at the time of the warrantless intrusion”) (quoting United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)).
The events culminating in the entry into Defendant’s apartment demonstrate that the officers’ actions comport with the Fourth Amendment. Defendant, and his apartment, were under investigation as part of a drug trafficking interdiction. The United States Postal Inspection Service had intercepted a package addressed to Defendant and found it carried six pounds of methamphetamine. Agent Jones, a highly experienced narcotics investigator, knew that Defendant picked up the package from the building manager’s office and brought it into his apartment. See United States v. Hicks, 752 F.2d 379, 383-84 (9th Cir. 1985) (overruled on other grounds) (“In assessing the existence of probable cause to enter or to search a residence, this court has held that direct observation of contraband in a particular location is not required. A court may also consider ‘the type of crime, nature of the items, and normal inferences where a criminal will likely hide contraband.'”) (quoting United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978)). Despite identifying himself as a law enforcement officer and repeatedly asking the door be opened, Agent Jones saw the figure of a person stand up, walk towards the front door, and then retreat to the interior of the apartment. See Dualeh v. United States, 466 F. App’x 621, 622 (9th Cir. 2012) (holding that a person watching police officers from the second floor of a home they were about to enter to serve drug-related warrants supported a finding that exigent circumstances to prevent the destruction of evidence existed). The significance of the figure’s suspicious behavior was compounded by the rustling noises Agent Jones heard immediately after seeing the then-unidentified figure back away from the door. The circumstances of these events “would cause a reasonable person to believe that entry … was necessary to prevent … the destruction of relevant evidence.” Brooks, 367 F.3d at 1135 (internal quotations and citations omitted); United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988) (officers were permitted to enter after seeing someone look through the front door’s peephole and retreat, and hearing a “scrambling” noise); United States v. Ashbourne, 571 F. App’x 422, 424-25 (6th Cir. 2014) (allowing warrantless entry in a situation where officers heard unexplained noises from inside an apartment and received no response after shouting at the resident to come to the door).
2. The Beeper’s Errant Signal did not Render the Officers’ Entry Illegal
Defendant places great weight on the beeper’s apparent false alert. The fact that the beeper’s signal precipitated a chain of events that led to a forced entry into the apartment is not dispositive. The officers approached the door because the beeper signal indicated to them the package had been opened. The exigent circumstances in this case arose when the officers heard what sounded like the rustling of paper and plastic. See United States v. Banks, 540 U.S. 31, 38, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003) (recognizing that the destruction of drugs can occur in less than 20 seconds). Once they heard the rustling noises, “the exigency had matured, [and] the officers were not bound to learn anything more or wait any longer before going in.” Id. at 40.
The officers relied on the efficacy of the beeper in good faith. The beeper passed both of Officer Bugarin’s pre- and post-installation tests. There is no evidence that the beeper routinely malfunctioned, or was unreliable. Testimony introduced at the hearings indicated that while the beeper’s wires were delicate, false signals occurred on rare occasion. In this case, the Defendant had been observed kicking the parcel prior to taking it into his apartment.
The totality of circumstances resulted in an appearance that the package and its contents were in imminent danger of destruction. Brooks, 367 F.3d at 1134. The law enforcement officers’ warrantless entry into Defendant’s apartment complies with the Fourth Amendment.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"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
property."
—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
Amendment."
—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
"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)