UNITED STATES OF AMERICA v. TERRANCE COLES
No. 04-2134
United States Court of Appeals, Third Circuit
February 9, 2006
Before: ROTH, FUENTES, and GARTH, Circuit Judges
Precedential. On Appeal from the United States District Court for the Eastern District of Pennsylvania. District Court No. 03-cr-00281-2. District Judge: Honorable Harvey Bartle, III. Argued: November 7, 2005.
JEFFREY M. LINDY, Esquire (Argued), 1800 John F. Kennedy Blvd., Suite 1500, Philadelphia, PA 19103, Attorney for Appellant Terrance Coles.
GARTH, Circuit Judge.
Concluding that the police impermissibly created the very exigency which they claim permitted the warrantless search, we hold that the exigent circumstances exception to the warrant requirement is not applicable here. Accordingly, we will reverse the District Court‘s denial of Coles‘s suppression motion, and we will vacate Coles‘s conviction and sentence and remand for further proceedings.
I.
A.
On June 7, 2002, Terrance Coles checked into room 511 at the Hawthorne Suites Hotel, 1100 Vine Street in Philadelphia. Coles initially checked into the hotel for the weekend, but subsequently arranged to stay for an additional 10 nights. After Coles had been there for about a week, the hotel manager, David Bradley (“Bradley“), sought unsuccessfully to locate Coles to discuss payment arrangements. On June 14, 2002, Bradley let
Later that afternoon, when Agent Warrington and local narcotics officers met with Bradley at the hotel, Bradley repeated the information that he had provided earlier to the FBI on the telephone.1 Bradley then unlocked room 511 for the officers. The officers entered the room and observed a plastic bag and small vials containing a white substance, as well as an empty holster. After a few minutes, the officers left the room, without touching anything. The government concedes that this entry was illegal and does not rely on anything seen on this visit in establishing probable cause for the subsequent warrantless entry and search.
Despite having the room under covert surveillance, the officers decided to enter room 511. Sgt. Josey, Officer Wilson and two other officers, all dressed in plain clothes with identification badges hanging around their necks, positioned themselves in two parallel columns outside the entrance to room 511. Sgt. Josey knocked on the door, attempting to gain access by a subterfuge. He first announced “room service” in an
At this critical juncture, the officers heard the sounds of rustling and running footsteps.3 Sgt. Josey attempted to open the door using an electronic passkey provided by Bradley, but the officers could not enter because there was a bar latch over the door. After partially opening the door with the passkey, the officers heard the sound of a toilet flushing and the sounds of more running.4
After securing the room, the police obtained and executed search warrants in order to search the room further and to search Coles‘s rental car. The application for the search warrants made no mention of the first illegal entry into room 511. No additional evidence or contraband was discovered after the warrants had been secured.
B.
Coles was indicted on April 29, 2003 by a grand jury sitting in the Eastern District of Pennsylvania. The indictment charged Coles with possession of a firearm in furtherance of drug trafficking, in violation of
The District Court denied the suppression motion the next day. The District Court found that the police had probable cause based on their initial conversation with Bradley at the hotel, and that, in any event, the police gained additional information to support probable cause after they had knocked on the door to room 511 and announced their presence - to wit, the rustling, running footsteps and flushing toilet. The District Court also found that the likelihood of imminent destruction of evidence created exigent circumstances, thus justifying the warrantless entry and search. However, the District Court made no explicit finding as to whether the police created those exigent circumstances.
II.
The District Court had subject matter jurisdiction over this federal criminal action pursuant to
III.
A.
We begin our discussion with the relevant constitutional text. The Fourth Amendment to the federal Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Warrantless searches and seizures inside someone‘s home (or in this case, a hotel room) are presumptively unreasonable unless the occupants consent or probable cause and exigent circumstances exist to justify the intrusion. Steagald v. United States, 451 U.S. 204, 211 (1981); Payton v. New York, 445 U.S. 573, 586 (1980); see also United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973) (“Probable cause to believe contraband is present is necessary to justify a warrantless search, but it alone is not sufficient . . . Mere probable cause does not provide the exigent circumstances necessary to justify a search without a warrant.“). Consent is not at issue in this appeal, and Coles does not challenge the District Court‘s finding of probable cause. This appeal thus requires us to reexamine the exigent circumstances exception to the warrant requirement.
Examples of exigent circumstances include, but are not limited to, hot pursuit of a suspected felon, the possibility that evidence may be removed or destroyed, and danger to the lives of officers or others. U.S. v. Richard, 994 F.2d 244, 247-48 (5th Cir. 1993); see also Rubin, 474 F.2d at 268-69. In these limited situations,8 the need for effective law enforcement trumps the
The presence of exigent circumstances is a finding of fact, which we review for clear error. Richard, 994 F.2d at 248. The District Court found that exigent circumstances - the possibility of evidence being destroyed - existed after the officers knocked on the hotel room door and demanded entry. Coles does not challenge that finding on appeal. He asks us to review only the second prong or requirement of the exigency exception to the warrant requirement - i.e., whether the police improperly created the exigency.9 Our attention is thus focused
B.
We turn at the outset to Johnson v. United States, supra. There, the Supreme Court considered the Fourth Amendment implications of a warrantless search on a very similar set of facts to those presented here. In Johnson, the police obtained information from an informant that persons were smoking opium in the Europe Hotel. When the officers went to the hotel to investigate, they immediately recognized the smell of opium, and then traced the odor to Room 1. The officers did not know who occupied the room, and so they knocked and announced themselves. After a slight delay, there was “some shuffling or noise” in the room and then the defendant opened the door. The lead officer told the defendant that “I want to talk to you a little bit,” and the defendant “stepped back acquiescently and admitted [the officers].” 333 U.S. at 12. The officers proceeded to search the room, uncovering incriminating evidence of drugs and smoking apparatus.
The Supreme Court found that the search violated the Fourth Amendment. The government had offered no reason “for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate.” Id. at 15. The Court noted that the following factors were relevant to its determination: (1) no suspect had been fleeing or likely to take flight; (2) the search was of a hotel room [permanent premises], not of a movable vehicle; and (3) no evidence was threatened with removal or destruction. Id. Finally, the Court observed
Notwithstanding the striking similarity between Johnson and the present case, the government attempts to distinguish Johnson, arguing that “in that case, the Supreme Court did not rule that officers impermissibly created exigent circumstances; instead, it noted that the government had not established an exigency.” Appellee‘s Br. at 32 n.7. Under a fair reading of Johnson as applied here, however, the police in the instant case had no justification for knocking and demanding entry to Coles‘s hotel room before first securing a warrant.
In this case, as in Johnson, no suspect was fleeing and the search was of permanent premises, i.e., Coles‘s hotel room. More importantly, prior to the police announcing themselves at the hotel room door, police surveillance had not been detected by Coles and no evidence was being destroyed at that point. Whatever exigencies might have arisen after the police announced their presence at the door cannot excuse their failure to first obtain a search warrant. Indeed, this case constitutes an a fortiori application of Johnson inasmuch as the police here attempted to gain access by subterfuge.10
C.
The Fifth Circuit, which appears to have taken the lead in this area, generally requires exigent circumstances to exist before the police decide to knock and announce themselves at the door. In this respect, United States v. Richard, supra, is instructive. In that case, officers approached a motel room looking for a man suspected of drug trafficking. After the officers knocked on the door and announced their presence, they heard people talking softly and drawers slamming. Fearing that they were in danger and that evidence was being destroyed, the officers entered the room without a warrant.
The Fifth Circuit affirmed the district court‘s finding that the officers created the exigent circumstances by their own actions - i.e., by announcing their presence when they could have easily waited for and obtained a search warrant. In reaching that conclusion, the court “distinguish[ed] between cases where exigent circumstances arise naturally during a delay in obtaining a warrant and those where officers have deliberately created the exigent circumstances.” 994 F.2d at 248 (citations omitted). The court emphasized that exigent circumstances did
As Richards makes clear, the Fifth Circuit, in assessing whether police impermissibly create exigent circumstances, focuses on the reasonableness and propriety of the officers’ actions and investigative tactics leading up to the warrantless entry. See U.S. v. Gould, 364 F.3d 578, 590 (5th Cir. 2004); U.S. v. Rico, 51 F.3d 495, 502 (5th Cir. 1995).11 Exigent circumstances will not provide an exception to the warrant requirement where those actions are found to be unreasonable. Compare United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986) with United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001).12
As compared to the decisions in those courts, however, the Second Circuit construes the exigency doctrine more broadly. The Second Circuit provides greater latitude to law enforcement officers in disregarding the warrant requirement. See United States v. MacDonald, 916 F.2d 766 (2d Cir. 1990) (en banc). MacDonald announced the following principle to govern determinations about whether the police impermissibly
In MacDonald, an undercover officer had entered an apartment and bought drugs. The officer then immediately left the building and reported his observations to other task force members waiting outside. Approximately ten minutes after the controlled purchase, the undercover officer returned to the apartment with reinforcements. They knocked and announced their presence. Agents watching the rear of the apartment radioed to the agents stationed in the front that the occupants were trying to escape through the back door. The agents at the apartment door then used a battering ram to force entry.
The Second Circuit found that the agents’ conduct did not impermissibly create the exigent circumstances to circumvent the warrant requirement. Id. at 771. The court noted that the agents acted properly in knocking on the door and announcing themselves.
Contrary to the Fifth Circuit, the reasonableness of the police investigative tactics precipitating the exigency does not seem to figure into the Second Circuit‘s analysis. In MacDonald, as in Richard, the police created the exigency by announcing their presence under circumstances that were likely
Although MacDonald is an en banc opinion of the Second Circuit, we are hard-pressed to agree with the majority opinion. We find the dissent in MacDonald much more attuned to the governing principles of the exigency exception because the dissent concentrates on the reasonableness of the actions and investigative tactics of the police which precede their warrantless entry. As the MacDonald dissent noted, “it [is] difficult to conceive of the officers’ return to the apartment [10 minutes after their purchase of drugs] as anything other than pretext, in an effort to precipitate a crisis that did not then exist.” Id. at 776 (Kearse, J., dissenting). The MacDonald dissent further noted that the agents arrived at the door with a battering ram, “plainly anticipat[ing] that the announcement of their identity would precipitate an exigency.” Id. Judge Kearse in dissent thus concluded that “[w]e should not endorse such contrivances by law enforcement officials in their efforts to circumvent the Fourth Amendment‘s warrant requirement.” Id.13
D.
Our analysis here is particularly informed by three overarching factors: (1) the existence of probable cause; (2) the initial decision to gain entry by subterfuge; and (3) the covert and undetected surveillance. We address each of these factors below.
In Johnson, which we discussed earlier, the Supreme Court emphasized that “[a]t the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant.” 333 U.S. at 13. In this case, too, the police possessed probable cause based on the initial observations of Bradley, the hotel manager. Based on this evidence, the police could have obtained a search warrant for Coles‘s hotel room.
As the record plainly indicates, the officers decided to enter room 511 without a warrant. It was that decision to conduct a warrantless entry and search of the room, without any urgent need to do so, that impermissibly created the very exigency relied upon by the government in this case. See United States v. Timberlake, 896 F.2d 592, 597 (D.C. Cir. 1990) (holding that police created exigent circumstances where “[t]he record contains no evidence that the police, when they knocked on the door, intended anything other than a warrantless search of the apartment“).
We emphasize that the record reveals no urgency or need for the officers to take immediate action, prior to the officers’ decision to knock on Coles‘s hotel room door and demand entry. It is, of course, true that once the officers knocked on the door and announced, “open the door, this is the police,” they heard sounds indicating that evidence was being destroyed. But that exigency did not arise naturally or from reasonable police investigative tactics. Quite to the contrary, the officers, after their pretextual announcements had failed to gain entry to room 511, deliberately created the exigency by knocking on the door to room 511 and demanding entry.
Focusing on the reasonableness of the officers’ investigative tactics triggering the exigency, we conclude that the police impermissibly manufactured the exigency. We therefore hold that the exigent circumstances exception to the warrant requirement does not justify the warrantless entry and search of Coles‘s hotel room. As a result, the physical evidence that led to Coles‘s conviction, which evidence was the product of an unlawful search and seizure, should have been suppressed.
Accordingly, we will reverse the District Court‘s denial of Coles‘s suppression motion, and we will vacate Coles‘s conviction and sentence and remand to the District Court for further proceedings consistent with this opinion.
U.S v. Coles, No. 04-2134
The majority‘s opinion is based on the dubious proposition that two rights, as determined by the Supreme Court, make a wrong. More concretely, the majority‘s decision to focus the exigency analysis on the subjective intent of the investigating officers, and the subsequent, haphazard reaction the investigation generates on the part of the alleged criminal, produces the “could‘ve, should‘ve, would‘ve” analysis that is so anathema to our judicial role. For these reasons, I respectfully dissent.
As an initial matter, the majority‘s central reliance on Johnson is misplaced. The majority seemingly accepts the government‘s argument that in Johnson “the Supreme Court did not rule that officers impermissibly created exigent circumstances; instead, it noted that the government had not established an exigency“, Maj. Op. at 14. In this regard, the majority and the government are correct - Johnson was not about exigent circumstances. In Johnson, the Supreme Court specifically found that “[n]o evidence or contraband was threatened with removal or destruction.” 333 U.S. at 15. This case, however, is entirely about exigency. As opposed to the opium being smoked in Johnson, here the police heard the sound of a toilet flushing. Subsequently, the police found drugs in and around the toilet.
Nonetheless, the majority argues that here, as in Johnson, the police had no justification for knocking and demanding entry to Coles‘s hotel room before securing a warrant. The majority‘s use of Johnson ignores the salient, distinguishing factor with the instant case; here, there was a exigency.
The majority‘s math is not supported by the Fourth Amendment. The majority implicitly acknowledges the fact that its analysis is constitutionally unmoored when it categorizes conflicting Fifth and Second Circuit precedent. According to the majority, the Fifth Circuit correctly focuses on the reasonableness of the police investigative tactics giving rise to the exigency while the Second Circuit incorrectly focuses on the legality. Maj. Op. at 18, 19. The majority‘s reasonableness test, however, imposes a standard for police behavior that is not derived from the Constitution.
The practical flaw with the reasonableness inquiry is best captured in the majority‘s statement that the police “had no legitimate reason to utilize the ‘knock and talk’ procedure.” Maj. Op. at 22. First, the majority‘s use of quotation marks around the phrase ‘knock and talk’ is a result of this investigatory technique entering the police lexicon due to its compatibility with the Fourth Amendment in a way similar to the association of Miranda with the Fifth Amendment. See Gould, 364 F.3d at 590 (noting that the “‘knock and talk’ police investigatory practice has clearly been recognized as legitimate.“). The majority‘s holding, however, disturbs this venerable precedent.
Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.
Hoffa v. United States, 385 U.S. 293, 310 (1966). The majority‘s opinion allows Coles‘s malfeasance to restrict law enforcement‘s ability to support a criminal conviction and is, therefore, an unwarranted departure from Supreme Court precedent.
Finally, the majority‘s opinion, and the adoption of the Fifth Circuit‘s jurisprudence, can only be implemented via an inquiry into the subjective intent of the officers who created the exigency. As the majority notes, the first step in the analysis is to ask “whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.” Gould, 364 F.3d at 590; Maj. Op. at n.11. Such an inquiry is inconsistent with this Circuit‘s precedent. Acosta, 965 F.2d at 1254 (quoting Scott v. United States, 436 U.S. 128, 136 (1978), for the proposition that “subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.“).
A correct inquiry analyzes each of the interactions between the police and Coles.16 The first interaction between the police and Coles was Sgt. Josey‘s announcement of “room service.” The second interaction was Sgt. Josey‘s announcement that he was seeking entry to fix a reported leak. The third interaction was Sgt. Josey‘s announcement “open the door, this is the police.” Upon then hearing the sound of a flushing toilet, the police entered the apartment. Since none of the three interactions violated the Fourth Amendment, and since entry was made only on hearing the toilet flushing, I would affirm the District Court‘s denial of Coles‘s motion to suppress the physical evidence.