Knock and talk which led to officers seeing surveillance monitor through window, coupled with knowledge of weapons inside, created exigent circumstances to enter

Officers executing an arrest warrant at a house knocked and got no answer, but heard movement. Somebody also fled out the back door and over a 6′ high fence. One officer looked in a window and saw a closed circuit TV monitor showing the vehicles on the street in front of the house. They had information about drugs and weapons inside, and exigent circumstances thus presented themselves for a warrantless entry because of the apparent threat to the officers’ safety. It was not a manufactured exigency. United States v. Newman, 472 F.3d 233 (5th Cir. 2006):

This case involves officer safety. Exigent circumstances existed if the agents’ fear for their safety was reasonable. See United States v. Howard, 106 F.3d 70, 76 (5th Cir. 1997) (citing United States v. Rodea, 102 F.3d 1401 (5th Cir. 1996)) (“[W]e will not second-guess the judgement of law enforcement officers when reasonable minds may differ.”). The government insists, and the district court found, that at the moment the agents decided to enter the house there was reasonable danger to their safety. Here the agents were first confronted with a individual sprinting from the house and scaling a six-foot wrought-iron fence in an attempt to flee from police. Cf. Vega, 221 F.3d at 799 n.26 (suggesting that flight from police is probative). Then, when the agents, standing before the doorway, saw human movement from behind a curtain, they knew that people were in the house but were not responding to their verbal announcements. Upon seeing the closed circuit TV system and realizing there were people in the house, the present threat of danger was exacerbated when they realized that the dealer, as well as other residents, likely had been watching them through a TV surveillance system. Because the agents already suspected that a drug dealer was in the house, they were reasonable to correlate violence and weaponry with drug dealing. See United States v. Rodea, 102 F.3d 1401, 1408 (5th Cir. 1996) (noting that “firearms are ‘tools of the trade’ of those engaged in illegal drug activites.”) (quoting United States v. Ramos, 71 F.3d 1150, 1158 n. 26 (5th Cir. 1996), cert. denied, 517 U.S. 1227, 116 S. Ct. 1864, 134 L. Ed. 2d 962 (1996)). At that time, the agents were reasonable to believe that the residents were hiding, potentially with weapons, and watching the agents. Anticipation of a violent confrontation was reasonable.

These events alone would lead a reasonable police officer to anticipate danger, even though the agents did not see any weapons before they entered the house. See, e.g., Howard, 106 F.3d at 76 (finding exigent circumstances based on officer safety concerns when there were no visible weapons but the officers suspected there were drugs in a house and there was a crowd of people in front of the house); Rodea, 102 F.3d at 1408-10 (upholding exigent circumstances even though officers had no specific knowledge of any weapons being present but because weapons were common in drug deals). Given the highly deferential standard for reviewing the district court’s conclusion, we do not think that the district court erred in finding that exigent circumstances justified the agents’ entry into Newman’s home.

Next, we assess whether the government’s own action or inaction was the likely cause of the exigent circumstances. See Rico, 51 F.3d at 502 (holding that manufactured exigencies are “an exception to an [exigency] exception.”); Vega, 221 F.3d at 798-99. Officers may not impermissibly create exigent circumstances by revealing their presence in order to alert suspects who would, in response, destroy evidence or put the police in danger. See Vega, 221 F.3d at 800. Here, Newman argues that the exigent circumstances would not have arisen but for the officers’ approaching the house and revealing themselves to the occupants.

When determining whether the exigent circumstances are impermissibly manufactured, we consider “the reasonableness and propriety of the investigative tactics that generated the exigency.” Rico, 51 F.3d at 502 (quoting United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990)). In the instant case, the agents employed a “knock and talk” so they could ask the residents questions about a suspect for whom they had a warrant. This approach has been recognized as legitimate. Jones, 239 F.3d at 720; United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004) (en banc). Thus, the officers did not manufacture an exigency by employing a legitimate investigative tactic.

“Even in a case where there was an individual suffering from severe depression, such a mental disability did not by itself render the defendant’s consent to search and waiver of Miranda rights involuntary. There must be some coercion by an official actor to make the consent and/or waiver involuntary.” Defendant was advised of his right to refuse consent to a search of his computer for child porn, and he consented anyway. United States v. Wendehake, 2006 U.S. Dist. LEXIS 87649 (S.D. Fla. November 30, 2006).

On review by the District Court of an MJ’s R&R, the defendant cannot raise a new issue to suppress the search. United States v. Hunter, 2006 U.S. Dist. LEXIS 87831 (E.D. Tenn. November 30, 2006).