E.D.Wis.: Delay in entry belied exigent circumstances claim

The officers’ delay in their entry belied the suppression hearing claim of exigent circumstances for the entry into defendant’s building, and the motion to suppress had to be granted. United States v. Edwards, 2011 U.S. Dist. LEXIS 126059 (E.D. Wis. October 31, 2011) rejecting R&R 2011 U.S. Dist. LEXIS 126065 (E.D. Wis. September 15, 2011):

The magistrate found that exigent circumstances existed here because he concluded that it was reasonable for the officers to conclude that a burglary was in progress. (Mag. Rec. 6).

The Court disagrees, and finds that the warrantless entry in this case was not justified by exigent circumstances. First, the Court finds that exigent circumstances simply did not exist. In Patino, the Seventh Circuit held that exigent circumstances did not exist where an officer waited thirty minutes for backup to arrive. 830 F.2d at 1416. In particular, the Patino court was concerned with the officer’s failure to telephonically seek a warrant during that thirty minute wait. Id. Additionally, the Patino court noted that the officers could have secured the exits to prevent escape while awaiting a warrant. Id.

Here, similar to the important facts in Patino, Officer Dorn substantially delayed entry of the building without seeking a search warrant—demonstrating a lack of exigent circumstances. He twice called for backup and also arranged to contact the keyholders of the building prior to entering the building. Though the precise amount of time this took is unclear, nonetheless it is clear that there was ample time for Dorn to seek a search warrant, which he never did. The officers could have secured the exits to prevent escape if they were truly concerned with a burglary, but they did not do so. Therefore, this Court finds that the facts amply demonstrate that there were not exigent circumstances prior to the officers’ initial entry.

Second, even if there were exigent circumstances, the Court finds that the officers could not reasonably have believed that a burglary was in progress. It is true that Edwards was a suspect in a string of burglaries and was seen by Dorn exiting and re-entering the building, but this Court finds that other circumstances should have reasonably put the officers on notice that a burglary was not in progress. In fact, less than two days prior to the events in question, the police department had held a briefing at which they discussed Edwards as a suspect. During that briefing, the police noted that Edwards was at least a “possible” renter of the building at 211 North Main Street. Of course, it was that very building that the police now claim they suspected Edwards of burglarizing.

This Court finds it highly suspect, and certainly unreasonable, that Dorn and Zywicki both failed to remember that Edwards was a renter of the building. Additionally, it is unreasonable that none of the officers sought to examine the briefing materials and discover that fact when Dorn noted that he suspected Edwards to be in the building. Finally, it is unreasonable that the officers would have arranged to call the keyholders of the building, but failed to identify Edwards as one of those keyholders and make an attempt to contact him.