The entry into defendant’s house to search for a gun lacked exigent circumstances. There was nothing on which the officers could claim there was any risk. Moreover, defendant didn’t consent to their entry into the home. United States v. Mulato-Herrara, 2019 U.S. Dist. LEXIS 196530 (N.D. Ala. Nov. 13, 2019):
Despite this evidence, the United States argues that deputies would be leaving the children’s safety to chance by waiting for a search warrant to locate the evidence they sought. (See Doc. 28 at 10) (arguing that waiting for a warrant would require the deputies to “keep their fingers crossed that [Mr. Mulato] … was stable enough to remain alone with the children until a warrant was obtained”). According to the United States, the deputies had no choice but to stay in the home and ask about the gun. (Id. at 11). The deputies did have other choices, though—for example, following J.T.’s own suggestion that they request permission from Mr. Mulato to collect the children and bring them to her.
More importantly, the assumption underlying the United States’ argument is that the deputies sought the “evidence” (the gun) because of the exigency (the fear for the children’s safety). The evidence presented at the suppression hearing, however, establishes that the deputies sought the gun in relation to the crime J.T. had reported (menacing), not the exigency the officers feared (the welfare of the children). Asked why there was an interest in the gun after the officers confirmed that the children were fine, Deputy Smith testified, “at that point we want[ed] to see if that weapon is—investigate to see if that weapon was the weapon involved in the crime.” (Doc. 25 at 79). Deputy O’Brien characterized finding the weapon as the “main focus” of the investigation followed by checking on the children. (Doc. 25 at 131 (emphasis added)). Putting aside the deputies’ subjective reasons for their search, the court reiterates its conclusion that a reasonable officer would have believed the exigency was over after finding the children safe and Mr. Mulato in a calm and sober state.
The court finds that the deputies’ interest in finding the gun was not related to the children’s safety, but instead to their interest in finding evidence of the crime of menacing. And although the officers undisputedly had probable cause to believe that Mr. Mulato had committed that crime, and that the house contained evidence of that crime, probable cause to believe evidence of a crime exists is not probable cause to believe an exigency exists. If it were, the police would never need a warrant where they believe a house contains evidence of a crime. In this case, the deputies did have probable cause to believe that Mr. Mulato had committed a crime and that he harbored evidence of that crime; they also, for a time, had probable cause to believe that an exigency warranted their warrantless entry into Mr. Mulato’s house. The probable cause to believe Mr. Mulato had committed a crime and possessed evidence of that crime persisted, but the exigency supporting the warrantless entry did not. Once that exigency ended, the deputies needed to obtain a warrant or satisfy some other exception to the warrant requirement before they could search Mr. Mulato’s house. See United States v. Santa, 236 F.3d 662, 676 (11th Cir. 2000) (stating that a consent search can be constitutional despite an illegal entry). This they did not do.
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)