Court finds no exigent circumstances

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Movement within a house is not an exigent circumstance that justifies a warrantless entry, the Seventh Circuit Court of Appeals held on Dec. 14.

A team of DEA agents and Chicago police officers went to the house of Gregory McNeal, whom they suspected of selling cocaine from his home, and approached the house, carrying a battering ram.

After knocking on the door, they heard movement within and a voice say “the police are at the door.” They waited at least 20 seconds, and then broke down the door with their battering ram.

McNeal and Keith Collins were charged in federal court, and the district court denied McNeal’s motions to suppress admission of the cocaine. The jury found them guilty, and they appealed.

In a decision by Judge Richard A. Posner, the Seventh Circuit reversed McNeal’s conviction, holding the search was unlawful, but affirmed Collins’ conviction, but without prejudice.

Before addressing the merits of McNeal’s suppression motion, the court affirmed Collins’ conviction, and ordered that M. Engin Derkunt, Collins’ attorney, show cause why he should not be sanctioned for professional misconduct.

Derkunt devoted his entire appellate brief to arguing that the federal criminal code is unconstitutional, an argument the court found “unbelievably frivolous.” The court also ordered that a copy of its opinion be sent to the disciplinary authorities in Texas, where Derkunt practices.

However, the court’s affirmance was without prejudice to Collins should he choose to seek relief on ineffective assistance of counsel grounds.

Turning to McNeal’s appeal, the court concluded that the officers’ warrantless entry into the home was unlawful.

The following facts had led the district court to conclude that there were exigent circumstances justifying the entry: the officers heard movement within the home after they knocked on the door; and a voice inside said, “the police are at the door.”

The court of appeals reversed, reasoning, “[A]n emergency cannot be presumed in every case in which police barge into a person’s home unannounced. The government has presented no evidence that, like mink devouring their young when they hear a loud noise, criminals always (or at least in the vast majority of cases) set about to destroy evidence whenever the police knock on the door.”

The court emphasized differences between the case at bar and those in which courts have held that law-enforcement officers may not manufacture an emergency and then use the emergency to justify warrantless entry.

Similar to those cases, the officers here had time to get a warrant before going to the home, but did not do so. In contrast to those cases, however, the court found, “nothing happened; and it is the fact that nothing happened, rather than the ‘manufacture of exigent circumstances,’ that undermines the government’s position.”

The court posited that, if the police had heard “running feet” or other sounds signifying that evidence was about to be destroyed, after knocking and announcing their presence, the officers would be said to have “manufactured” the exigency.

Here, however, the court found exigency itself to be lacking, rejecting the government’s argument that merely knowing that there are drugs in a house creates an emergency that justifies dispensing with a warrant.

The court also rejected the government’s alternative argument – that McNeal consented to the search. Because the entry was unlawful, any consent was involuntary, the court concluded.

Accordingly, the court reversed McNeal’s conviction.

Analysis

The court’s reasoning points out what it considers an important distinction between exigent circumstances “manufactured” by the actions of the police, and the absence of exigent circumstances.

The court colorfully explained, “[A]n emergency cannot be presumed in every case in which police barge into a person’s home unannounced. The government has presented no evidence that, like mink devouring their young when they hear a loud noise, criminals always (or at least in the vast majority of cases) set about to destroy evidence whenever the police knock on the door.”

While witty, however, the court’s distinction lacks substance.

In U.S. v. Andrews, 442 F.3d 996, 1000 (7th Cir. 2006), the court stated the standard of review for exigent circumstances as follows: “[Warrantless] searches are constitutionally permissible … where there is probable cause and exigent circumstances create a compelling need for official action and insufficient time to secure a warrant. The government has the burden of proving that its officers had an objectively reasonable basis for believing such exigent circumstances existed at the time of the warrantless entry. Exigent circumstances have been found where officers had an objectively reasonable fear that evidence was about to be destroyed or removed. The relevant focus is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed or removed before a warrant could be secured (cites omitted).”

In the case at bar, the court concluded that “nothing happened” in response to the officers’ knocking, and therefore, there were no exigent circumstances.

The relevant inquiry, however, is whether, under the facts, a reasonable agent would believe that evidence might be destroyed before a warrant could be secured. Under that standard, exigent circumstances clearly were present, although the police manufactured those circumstances by their conduct.

The court does not state why there was probable cause to believe McNeal was selling drugs from his home, but accepts as true that probable cause was present; nevertheless, the officers did not obtain a warrant before going to the home. Assuming probable cause did exist, they should have. So, the court’s ultimate holding is correct.

However, it is correct because, once they arrived at the home in force, with a battering ram, but without a warrant, it was perfectly reasonable to believe evidence would be destroyed before one could be obtained.

Once the residents were aware that the police were at the door (numerous DEA agents and Chicago police officers, with a battering ram; not just a single officer knocking at the door), exigent circumstances existed at that point, even if the agents did not hear “running feet,” and no one inside shouted out, “The cops are here; get rid of the drugs!”

Criminals may not “set about to destroy evidence whenever the police knock on the door,” as the court observed. But they certainly will if they see an entire squad of them with a battering ram.

As clever as the court’s statement distinguishing criminals from mink destroying their young may be, it is, as a practical matter, incorrect. Even though, as the court found, “nothing happened,” it was still probable that, by the time the officers could have obtained a warrant after knocking and not being allowed entry, evidence would have been destroyed.

The court wrote, “there is nothing to forbid the polic
e to lug the battering ram with them in open view, anticipating the worst. But the risk they take in proceeding in such a fashion is that the emergency will not materialize — that the occupant of the house will calmly open the door and ask to see their warrant — that there will be no sound of ‘running feet,’ or other sounds or sights signifying that evidence is about to be destroyed.”

The statement is correct. However, the reason it is correct is that, by acting as they did, the officers will have created exigent circumstances — at that point, a reasonable officer will expect the occupants to destroy contraband after they shut they door, if the officers don’t then use the battering ram. The absence of “running feet” or other actions indicating that such destruction is actually in progress does not negate the fact that evidence will probably be destroyed before a warrant can be obtained.