Warrantless entry without announcement invalid

Controlled buy inside led to warrantless entry without announcement when the informant came out, and the entry was unjustified, and motion to suppress granted, without even citing or distinguishing Hudson v. Michigan. The officers knew the defendant was not alone inside, there was only a generalized fear of destruction of evidence, and their knock on the door would create further risk of destruction. This is not enough for a warrantless entry, and the motion is granted. United States v. Spottsville, 2006 U.S. Dist. LEXIS 61813 (E.D. Mich. August 30, 2006):

The officers, however, have failed to establish any specific reason why they feared the evidence or the targets would imminently be lost or destroyed. It is not enough that there exists a mere possibility that evidence will be lost or destroyed. Instead, the Government must show exigent circumstances by demonstrating that there is an “affirmative likelihood” that evidence will be lost or destroyed. Radka, 904 F.2d at 362 (citing United States v. Hayes, 518 F.2d 675, 677-78 (6th Cir. 1975)). In the present case, the officers generalized fear based on their alleged inability to conduct a full surveillance of the apartment door does not demonstrate, in any way, a justification for a reasonable belief that it was likely that individuals inside the apartment were planning to imminently destroy or abscond with the evidence. Cf. Straughter, 950 F.2d at 1231 (“The inability of the police to watch all of the doors of the apartment all of the time cannot support a reasonable belief that third parties were inside.”). The officers failed to present any evidence that the targets had become aware of the police presence, that the suspects had a look-out system to detect such a presence, that they were preparing to move their drug dealing operation, or that they had become aware that they had been the subject of the recent controlled purchase. See Sangineto-Miranda, 859 F.3d at 1512. See also United States v. Socey, 269 U.S. App. D.C. 453, 846 F.2d 1439, 1447 (D. D.C. 1988). Without evidence of these or similar events indicating imminent action about to be taken by Defendant or one of the other targets of the investigation, the Government has failed to demonstrate that any belief that they needed to take action “now or never” to safeguard evidence, is not objectively reasonable. Roaden, 413 U.S. at 505; Sangineto-Miranda, 859 F.3d at 1512. Without more, this Court finds the officers generalized fear of the loss of evidence is insufficient to carry the Government’s heavy burden to demonstrate the existence of exigent circumstances justifying a warrantless entry.

It is without question that after the officers approached the apartment door and knocked, exigent circumstances existed. See Unites States v. Richard, 994 F.3d 244, 249-50 (5th Cir. 1993) (A “warrantless entry became a forgone conclusion once [the] officers knocked.”) According to the testimony, immediately following the officers’ knock, the officers at the perimeter of the residence could see the individuals inside the apartment begin to scramble. Despite hearing the knock, those inside refused to answer the door. But occupants aware that law enforcement personnel are knocking at the door are not required to answer the door. United States v. Chambers, 395 F.3d 563, 569 (6th Cir. 2005). It appears that it was only after the occupants refusal to answer the door, thirty to forty seconds after the knock, and after the officers realized the targets were not going to answer the door, that the officers forced their entry into the apartment. It is well established that police officers “must be responding to an unanticipated exigency rather than simply creating the exigency for themselves.” Id. at 566. Knocking on the door and identifying themselves as police, the police clearly created their own exigent circumstances following their approach to the door. Consequently, this Court finds that once the police officers knocked, there could be no legitimate justification for a warrantless entry based on exigent circumstances.

Note: The key to the difference between this case and Hudson is the lack of a search warrant.

Videotape supported the district court’s conclusion that consent was voluntary. United States v. Torrellas, 197 Fed. Appx. 318 (5th Cir. August 30, 2006)* (unpublished).

Evidence showed that the defendant consented to search of his cellphone. The police also showed PC to get a search warrant to search the cellphone. United States v. Chambers, 2006 U.S. Dist. LEXIS 61679 (W.D. Okla. August 29, 2006).

Search incident was valid even though defendant had been handcuffed and placed in police car when it happened. United States v. Orr, 2006 U.S. Dist. LEXIS 61400 (M.D. Pa. August 29, 2006).