CA7: Govt failed to prove exigency; its theory was speculative

Government failed to prove its theory of protective sweep. It’s argument essentially put the burden on the defendant to prove that the protective sweep was unjustified, and that’s wrong. Also, the government’s waiver of an opportunity to put on additional proof of exigency before the Magistrate Judge is binding on remand–no new hearing for it. United States v. Delgado, 701 F.3d 1161 (7th Cir. 2012):

For the government’s theory to be reasonable under these circumstances, one would have to believe that the shooter (lethally armed and bent on killing Aviles), Delgado (potentially lethally armed and bent on protecting Aviles), and Aviles rushed into the sole-occupant apartment and were poised for a fatal showdown, but that the officers happened to knock on Delgado’s door at the precise climactic moment before anyone could pull a trigger or throw a punch, causing the parties to immediately suspend all hostilities while the shooter scrambled into a hiding position and Aviles and Delgado left acting as if nothing had happened. The presumption of unconstitutionality that attaches to warrantless searches requires the government to point to something that would lead a reasonable officer to think that this improbable scenario actually transpired, but the government simply has not done so.

The government argues that Aviles’s and Delgado’s silence when they came out of the apartment does not mean that the shooter was not in the apartment, because victims of violence sometimes choose to remain silent to prevent an investigation into their own criminal activity or to prevent their wounded foe from receiving aid. But this argument erroneously suggests that the defendant carries the burden of proving a lack of exigent circumstances, when it is actually incumbent upon the government to point to some affirmative sign of exigency. Silence in this context cannot be that sign, as it could have easily meant any number of things having nothing to do with exigent circumstances. Cf., e.g., Ellis, 499 F.3d at 691 (finding no exigent circumstances because general movement noises in response to officer’s knocking do not automatically mean that evidence is about to be destroyed, when they could simply signal someone getting up to answer the door). The government notes that in other cases, police officers have validly entered homes without a warrant upon suspicion of domestic violence even when the victim remains silent upon answering the door, but in those cases, silence or an indication that everything was fine was not in and of itself an affirmative indication of exigent circumstances. The victim’s silence simply failed to vitiate other affirmative indications that something dangerous was happening inside the home. … Absent such other affirmative indications here, Aviles’s and Delgado’s silence adds nothing to the exigent circumstances equation.

The government’s failure to carry its burden compels us to find that the officers violated Delgado’s Fourth Amendment rights when conducting a warrantless search of his apartment. So we reverse the denial of Delgado’s suppression motion, vacate his conviction, and remand for additional proceedings consistent with this decision. In remanding, we also instruct the district court to grant Delgado’s suppression motion. After the magistrate judge found a lack of exigent circumstances based on a set of stipulated facts, the government could have asked the district court to supplement the record and could have requested an evidentiary hearing. See 28 U.S.C. § 636(b)(1); Hynes v. Squillace, 143 F.3d 653, 656 (7th Cir. 1998); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). It did not. Though the government has not suggested that it is now entitled to an evidentiary hearing at this late stage, our instructions to grant the suppression motion do not include providing an evidentiary hearing. It is too late for that.