Officers lacked sufficient information on the totality defendant would be found at his girlfriend’s apartment when they entered on an arrest warrant. Most of the information was from a CI that it was logical he was there and he hadn’t been found in other places he’d likely be. Denial of motion to suppress reversed. United States v. Young, 2016 U.S. App. LEXIS 15275 (1st Cir. Aug. 19, 2016):
To determine whether the officers possessed a reasonable belief that Young resided at Coleman’s apartment then, we consider that preexisting information. Discarding all post-entry information, we are left with the following relevant information: (1) Webster’s statement that “if [Young] was not at the Ash Street, Howe Street, or Horton Street apartments, he had to be back with his former girlfriend” where he had stayed on and off when he was not with Davidson; (2) the fact that Webster was not an anonymous tipster; (3) the fact that officer Rawstron recognized Coleman’s car parked outside her apartment and that officers Rawstron and Michaud knew from a prior investigation that Coleman and Young had previously lived together; and (4) the fact that the officers had “eliminated three other addresses as places where the defendant might be found.”
Mindful that we must “examine the information known to the officers in the totality and not in isolation,” Graham, 553 F.3d at 14, we are nevertheless skeptical that these facts and circumstances are sufficient to support the residence inquiry — that the officers reasonably believed that Young resided with Coleman at the Walnut Street apartment before they entered her apartment. Although this case has none of the “rock-solid indicators of residence” present in other cases, see, e.g., Graham, 553 F.3d at 13 (explaining that “certain facts” such as a suspect’s “credit card applications, utility bill, car registration, and mail” being directed to a house “will almost always give rise to a reasonable belief that the subject of an arrest warrant resides at the place entered”), we recognize that such “rock-solid indicators” are not necessarily required. Still, the evidence here is sparse even when compared to other cases where we have found the residency and presence requirements satisfied. See, e.g., id. at 13 (finding police had reasonable belief defendant resided at the apartment because a police report identified defendant and his address, a probationer reported defendant was “staying at” the apartment, and a person outside of the apartment confirmed defendant was inside); United States v. Jones, 523 F.3d 31, 37 (1st Cir. 2008) (finding police’s belief objectively reasonable because hotel manager confirmed defendant rented Room 318 for a three-week period, and a man in the parking lot confirmed defendant was inside Room 318); United States v. Pelletier, 469 F.3d 194, 197, 200-01 (1st Cir. 2006) (finding reasonable belief when defendant’s girlfriend’s sister confirmed defendant was at a specific motel room, the motel room was registered in her name, and the maintenance man confirmed defendant was in the specific room).
To justify the officers’ entry, the government relies heavily on Webster’s reliability and on her statement that “if [Young] was not at the Ash Street, Howe Street, or Horton Street apartments, he had to be back with his former girlfriend.” But this statement was not sufficiently definitive or reliable to support a reasonable suspicion that Young was living with Coleman. To be sure, in some circumstances a statement by a reliable informant that a suspect is “staying” with or “living” with a particular person might support a reasonable suspicion that the suspect lives there, see, e.g., United States v. Risse, 83 F.3d 212, 216-17 (8th Cir. 1996) (noting that “use of the colloquial term ‘staying with'” can be interpreted to mean “living with”), but Webster did not inform officers decisively that Young was “staying” with Coleman. She said only that if Young was not staying at Ash Street, Howe Street, or Horton Street, then he had to be back with Coleman, but she did not actually confirm that Young was not, in fact, staying at those other apartments. Far from definitive, Webster’s statement was closer to a guess than to a reliable tip. And Webster couched the statement even further, qualifying that Young had — at some point — stayed with “Jen” “on and off, again a couple nights here and there” when he was not with Davidson. Importantly, neither the officers nor Webster actually knew that Young was not with Davidson since the officers had failed to locate either of them. For all the officers knew, Young was, indeed, staying with Davidson and they were simply not at home.
Moreover, Webster’s statement did not appear to be based on any actual, present knowledge of Young’s whereabouts. She did not suggest that she had actually seen Young at Coleman’s apartment. Nor did she state conclusively that she knew that Coleman and Young were back together. She merely stated that Young had previously stayed with Coleman and must be back there if the officers could not find him anywhere else, but she never explained why this must be so or gave the basis for this knowledge. And the officers took no steps (e.g., conducting surveillance or other interviews) to verify that Young’s prior relationship with Coleman had continued. The fact that officers Rawstron and Michaud also knew from a prior investigation that Coleman and Young had previously lived together does nothing to get them over this hurdle because their information was similarly dated. And, prior to speaking to Webster, it does not seem that the officers had reason to believe that Young and Coleman’s relationship was ongoing since her apartment was not among those they had thought to visit.
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)