E.D.La.: “Clear possibility” co-conspirator inside not enough for exigent circumstances; actual knowledge required

Inference (here, “clear possibility”) there was a co-conspirator inside capable of destruction of evidence is not exigent circumstances for a warrantless entry. It is established that actual knowledge is required. United States v. Glover, 2012 U.S. Dist. LEXIS 115461 (E.D. La. August 16, 2012)*:

Based on these observations alone, the Government contends that there was a “clear possibility” that a co-conspirator was inside the residence and capable of destroying the evidence absent immediate action from the agents. But in order to demonstrate exigent circumstances, the Government must point to more than a mere possibility of the presence of persons in a residence. Id. at 295-96 (“A finding of exigent circumstances … must be based on an officer’s reasonable belief that the delay necessary to obtain a warrant will facilitate the destruction or removal of evidence or put officers or bystanders in danger.”). Rather, the Fifth Circuit finds exigent circumstances present when the Government demonstrates that agents had actual knowledge of other persons inside a residence. See Mata, 517 F.3d at 289 (before warrantless entry, agents “knew with absolute certainty” that contraband was in the building and witnessed several people running in different directions around the building); Riley, 968 F.2d at 425 (warrantless entry was reasonable when accomplice told agents that “there was a large sum of money, a handgun and another individual at the residence he had just left”); United States v. Maldonado, 472 F.3d 388, 392 (5th Cir. 2006) (agents observed “someone open the trailer door, peek out, and then quickly close the door” before they initiated the protective sweep). Or, in the absence of actual knowledge, the Government may demonstrate the exigency by showing that agents heard or saw movement suggesting the presence of other persons in the residence.