“Constructive entry” explained and rejected on these facts. United States v. Grayer, 232 Fed. Appx. 446, 2007 FED App. 0255N (6th Cir. 2007)* (unpublished):
In United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984), we explained that a “constructive entry” may occur when a suspect emerges from a house “in response to coercive police conduct.” Id. at 1166; accord United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005) (explaining that a constructive entry occurs “when the police, while not entering the house, deploy overbearing tactics that essentially force the individual out of the home”). Coercive police conduct is “such a show of authority that [the] Defendant reasonably believed he had no choice but to comply.” United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001). There is nothing, however, preventing the police from knocking on a home’s door and questioning a suspect or an individual with information about an investigation. See, e.g., Thomas, 430 F.3d at 277 (citing, among others, Ewolski v. City of Brunswick, 287 F.3d 492, 504-05 (6th Cir. 2002) (approving of “knock and talk” investigations)). And if, during the course of this questioning, the suspect willingly and voluntarily acquiesces to noncoercive police requests to leave the protection of the house, then, absent a show of force that would provide a basis for a reasonable person to believe he was compelled to leave the house, a subsequent outside-the-home seizure does not offend Payton. See id.
Grayer argues that it was reasonable for him to believe that he was under arrest once the officers knocked on his door and, therefore, the officers constructively entered the residence without a warrant. Grayer points out that the house was surrounded by four police officers, a K-9 unit was present, and three police cars (along with an unmarked Chevrolet Suburban) were parked on the street outside the house.
Even assuming these facts as true, Grayer’s argument fails. The officers’ show of force did not rise to the level of a constructive entry. None of the hallmarks of constructive entry were present: (1) drawn weapons; (2) raised voices; (3) coercive demands; or (4) a large number of officers in plain sight. See, e.g., Saari, 272 F.3d at 808-09 (constructive entry where police knocked forcefully and where one officer had a twelve-gauge, pump-action shotgun in the “ready position” and the other officers had their service weapons drawn); Morgan, 743 F.2d at 1161 (constructive entry where ten officers surrounded the house, blocked the suspect’s car, “flooded the house with spotlights[,] and summoned [the suspect] from his mother’s home with the blaring call of a bullhorn”); accord Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997) (constructive entry where police surrounded the house, pointed machine guns at the windows, and ordered the occupants out); United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1985) (constructive entry where “the police had completely surrounded [suspect’s] trailer with their weapons drawn and ordered him through a bullhorn to leave the trailer and drop to his knees”).
The record reflects that only two officers approached the front door of the residence. The other two officers were stationed to the side and back of the house and were not visible from the front door. Likewise, according to Officer Cunningham’s testimony, the three police squad cars and unmarked police Suburban were parked in a manner blocked from Grayer’s view from the front door. Further, neither officer at the door had his gun drawn. Those two officers simply knocked on the door, asked the man who answered the door if he was Grayer, and asked him to step outside. Indeed, Grayer testified that he complied with that request willingly. Without more, this does not amount to a constructive entry. See Thomas, 430 F.3d at 278 (near-identical facts).
It cannot be said that officers acted unreasonably in their use of force against plaintiff when his car backed up after they saw a gun in the car. Plaintiffs seized on one clause in a deposition of the defendants that was contrary to the video of the stop, so qualified immunity applies. Webster v. Beary, 228 Fed. Appx. 844 (11th Cir. 2007)* (unpublished).
Traffic stop that led to questions about citizenship and running the names was not unreasonable. United States v. Cantu, 227 Fed. Appx. 783 (11th Cir. 2007)* (unpublished).
Occupants of a motel room that was rented by another who were waiting for a drug deal to go down did not have standing under Carter. United States v. Domenech, 2007 U.S. Dist. LEXIS 25758 (W.D. Mich. April 6, 2007).
Only excessive force allegation survives summary judgment against NYPD which started from a 911 call with a hang up, and calls back that led to profanity toward the police saying they could not enter without a warrant. Younger v. City of New York, 480 F. Supp. 2d 723 (S.D. N.Y. 2007).*
