United States v. Terrance Coles

grand jury foreperson sign failure of the

the indictment as mere technical defi-

ciency, and thus conclude that Willamaris

challenge sufficiency of the indict- entitling not raise an him

ment does issue Irorere,

to relief.8 See 228 F.3d at 831.

III. CONCLUSION

For foregoing judgment reasons the

of conviction and sentence entered Janu-

ary will be affirmed.

UNITED STATES of America

v. Appellant.

Terrance COLES

No. 04-2134. Appeals,

United States Court of

Third Circuit.

Argued Nov.

Filed Feb. asking filed a Willaman has motion us to judicial take notice of an advertisement in a publication Shotgun deny entitled News. disposition In our of this we have case as it is motion without merit inasmuch as recognized arguments that Willaman’s are merely advertisement reflects views of way somewhat we broader than the restate allegations its author it do not set Nevertheless, them. we have all considered judicial may forth facts of which we take points his find either sub- Co., notice. See Cont’l Cas. Ins. Buczek points sumed in the as we have restated them (3d Cir.2004) (testimony or are without merit. 90-mile-per-hour winds sometimes hit ROTH, FUENTES, and

Before GARTH, Judges. Circuit GARTH, Judge. Circuit (“Coles”) appeals his Terrance Coles drug-related for conviction and sentence alia, crimes, inter the District challenging, suppress denial of his motion to Court’s motion, In that Coles evidence. physical must be argued physical Amendment under the Fourth suppressed it police officers had removed because without a search war- from his hotel room The District Court concluded rant. wit, immi- exigent circumstances —to -justified nent destruction of evidence— agree. cannot the warrantless search. We police impermissibly Concluding that the very exigency claim search, hold we permitted the exception requirement applica- the warrant is not Accordingly, here. we will reverse ble suppres- District denial of Coles’s Court’s motion, and we will vacate Coles’s sion for conviction and sentence and remand proceedings. further I.

A. On June Terrance Coles into checked room 511 the Hawthorne Hotel, in Philadel- 1100 Vine Street Suites initially the hotel phia. Coles checked into Meehan, L. United Attor- Patrick States weekend, ar- subsequently for but ney, Magid, Deputy Laurie United States nights. ranged stay for additional Policy Attorney, Appeals, Robert for Coles for about After had been there At- Zauzmer, United A. Assistant States week, Bradley manager, the hotel David Counsel, Appellate Martin torney, Senior (“Bradley”), unsuccessfully to lo- sought Harrell, Unit- (Argued), Special Assistant payment arrange- cate Coles to discuss Attorney, ed Office of United States 14, 2002, Bradley let ments. On June PA, Ap- Philadelphia, Attorney, States see if the himself pellee of America. United States occupied. room was still Once inside plastic bag he and small Jeffrey Lindy, (Argued), Philadel- observed M. PA, Sus- containing Coles. vials white substance. phia, Appellant Terrance illegal drugs he had seen After Officer pecting that Wilson watched the two men room, Bradley Federal Bureau called enter room he returned to room 514 (“FBI”) Special Agent of Investigation positioned to inform the officers there that n Warrington, he John and described what two men just had entered room 511. had seen. There is no indication that either of the men, two later identified as Coles and afternoon, co- Agent

Later that when War- Jackson, defendant Jonathan rington local narcotics officers met aware and hotel, police surveillance, Bradley with re- Bradley either then or at peated provid- the information that he had any time thereafter.

ed the FBI the telephone.1 earlier to on Despite having the room under covert Bradley unlocked room 511 then surveillance, the officers to decided enter officers. The officers entered the room Josey, room Sgt. 511. Officer and Wilson plastic and a and bag observed small vials officers, two other all in plain dressed substance, white an containing a as well as with clothes identification badges hanging minutes, empty After a few holster. necks, positioned around their themselves room, touching officers left without parallel two columns outside the en- in. anything. government concedes that Sgt. trance to room Josey knocked illegal this does not on entry rely and door, on the to attempting gain by access a anything establishing on this visit seen subterfuge. first He announced “room subsequent cause for the war- attempt in an get service” the two men rantless and search. A open replied the door. man that he provided the Bradley next officers with anything had not ordered and refused to directly access to room located across (Codefendant open the door. Jackson la- the hall from room where the officers ter testified that the man answering was by using established peep- surveillance Coles). Sgt. time, Josey knocked a second door. point, Sgt. hole At some announcing this time that he was from Josey, officer, the supervising Jonathan a reported maintenance to fix leak. A Barry sent Officer Wilson check addi- again responded, saying voice there was no tional per- records Terrance Coles and again open leak and refused to the door. a haps to secure search and seizure war- time, Sgt. Josey a knocked third more approached rant.2 As Officer Wilson forcefully, identifying a floor, himself as elevator to the fifth he leave noticed elevator, exiting occupants “open and telling two men at least one officer nylon police.” of whom carried a black this backpack. is the ap- 1. The record inconsistent as to the details he had seen "it in room but that Bradley’s be, know, initial observations inside room peared you paraphernalia, me to Agent Warrington "[u]pon testified you if would.” entering [Bradley] said he observed know, and, thought drugs you what he During hearing,' suppression neither things drugs related he of—items and what Agent Warrington nor Officer Wilson men- thought Agent Warring- awas holster.” But secure tioned Officer Wilson left to me, exactly ton did “not recall what he said to trial, Sgt. Josey warrant. testified at howev- Barry in terms items.” Officer Wilson er, plan by "[t]he initial was to stand and Bradley reported seeing testified that ''some- any activity, monitor the while Po- thing suspicious appeared to be narcot- lice went our head- Officer Wilson back to ics,” specifically plastic bag ''[a] some- with quarters and seizure secured search and thing white inside and some also vials warrant.” something Bradley white inside.” later testi- fied at trial that he could remember what charged The indictment juncture, Pennsylvania. the officers critical At of a in fur- possession Coles with firearm running rustling sounds heard drug in violation of trafficking, therance of Josey attempted open Sgt. footsteps.3 (Count 924(c) 1), § posses- 18 U.S.C. passkey pro- electronic using the door intent cocaine sion with to distribute base Bradley, but the officers could vided (crack) cocaine, in violation of there was bar latch because enter 3).5 (Counts 841(a)(1) § U.S.C. partially opening After the door. over heard the officers passkey,., door with pre-trial Coles filed a August On flushing toilet sound suppress motion to the evidence seized running.4 of more room, sounds claiming from his hotel violations of his rights. Fourth Amendment The Dis- for the eventually opened door Coles evidentiary trict Court conducted hear- room, po- entering the Upon officers. ing suppression on motion on or discovered, among things, other sever- lice 2003, Agent around at which October “crack,” mul- cocaine al base containers and Warrington Officer Wilson testified cocaine, containing 25 vials tiple bags argued government. Coles cocaine, $2,000 in approximately “crack” provided by based on the information cash, open inside of Coles’s and firearm manager, probable lacked bag. The street value of carrying argued, in cause to enter the room. He $31,000. and drugs was Coles confiscated alternative, not, probable cause or then arrested. Jackson were entry the warrantless into the hotel room ob- securing After justified could not be under ' warrants in and search tained executed offi- exception circumstances because the to search room further and order to cers those had created Colps’s application car. The rental search attempting gain to to the room. access made no mention for the search warrants The suppres- District Court denied the entry room No illegal 511. the first day. sion motion the next The District or contraband was dis- additional evidence probable Court found that the had had after the warrants been se- covered cause on initial based their conversation cured. hotel, that, Bradley any at and event, police gained additional informa- B. support tion to cause after by a April on had on door room 511 and Coles indicted knocked wit, grand jury sitting the Eastern announced their the rus- District —to accounts, they participating 3. the officers’ heard the sound of The accounts n , Agent Warrington, here. who re- flushing only attempting gain differ a toilet after heard mained behind door in entry using by the-passkey. pounding banging, intermittent "[l]oud scuffling.” "what Officer Wilson heard charged 5. The indictment also co-defendant about, rustling somebody run- to be sounded pos with a Jonathan Jackson fourth count — (who Josey ning Sgt. testified back and forth.” felon, by a session of a firearm convicted trial) footsteps appeared "what to be heard (Count 4). § 922(g)(1) violation of U.S.C. away going from door.” pled guilty to 2 and 3 on Jackson Counts October’26, 2003, and was sentenced to Court found that the officers The District years imprisonment January rustling, running "heard the sounds of foot- and 4 dismissed as to Jackson Counts 1 steps flushing attempting toilet” before sentencing. after his added). open (emphasis This is According with the consistent record. tling, running footsteps flushing toilet. Amendment to the federal Constitution The District Court also found that provides: likelihood of imminent destruction of evi- right The of the people to be secure in circumstances, dence created thus persons, houses, papers, and ef-

justifying the fects, against unreasonable searches and However, search. the District Court made seizures, shall violated, not be and no explicit finding no as whether the issue, Warrants shall upon probable but created those circumstances. cause, supported by affirmation, Oath or trial, proceeded case and Coles particularly describing place subsequently by convicted jury of all searched, persons things three counts of the indictment.6 The Dis- to be trict Court seized. sentenced Coles to 138 months of incarceration April on or around Const, U.S. amend It protects IV. people thereupon Coles filed the instant in their homes from unreasonable searches alia, appeal, seeking, inter our review of and seizures permitting only a neutral the District Court’s denial of suppres- his magistrate detached to review evi- sion motion.7 dence and draw inferences to support the II. issuance of a search warrant. Johnson v. States, 10, 13-14, United 333 U.S. 68 S.Ct. The District subject Court had jurisdiction 367, (1948). matter 92 over this L.Ed. 436 federal crimi This Fourth nal pursuant § action to 18 U.S.C. protection Amendment guests extends to appellate jurisdiction We have to review staying hotel rooms. Stoner v. State of judgment pursuant of conviction to 28 Cal., 483, 490, 889, 376 U.S. 84 S.Ct. 11 § U.S.C. 1291 and the final pur sentence (1964) (“No L.Ed.2d 856 less than a tenant § suant to 18 U.S.C. 3742. We review aof house ... a guest a hotel room is denial of suppression motion for clear entitled to constitutional protection against facts, error as to underlying but exer seizures.”) (in- unreasonable searches and plenary cise legality review as to its omitted). ternal citations light of the district court’s properly found Givan, facts. United States v. 320 F.3d searches and seizures Warrantless (3d Cir.2003). 452, 458 (or inside someone’s home this room) are presumptively unreason III. able unless the occupants prob consent or A. able cause and circumstances exist justify Steagald intrusion. v. begin our Unit discussion with the States, relevant constitutional text. The Fourth ed 451 U.S. 101 S.Ct. 6. Coles also moved for reconsideration of the requisite evidence failed to establish the suppress. denial of his motion to The District drug connection between the firearm and the 24, Court denied that motion on October offense to a conviction as to sustain Second, challenges count. he his sentence on Blakely/Bookergrounds, arguing that the Dis- issue, suppression In addition to Coles engaged impermissible trict Court fact- First, appeal. raises two other issues on he finding during sentencing phase. Be- argues that deny- the District Court erred in cause we will reverse the District Court on ing judgment his acquittal motion for of on issue, suppression we do not reach the f—possession Count of a firearm in further- remaining appeal. issues raised drug trafficking. ance of Coles submits that 366 (D.C.Cir.1990); (1981); Thomp- v. United States v. Payton New

1642, 38 L.Ed.2d 68 (5th Cir.1983). 1371, York, son, 100 S.Ct. 700 F.2d 445 U.S. (1980); see also United States L.Ed.2d 639 circum Cir.1973) (3d Rubin, fact, re finding stances is a which we

(“Probable cause to believe contraband is Richard, F.2d view clear error. necessary justify a warrant- is present District found that exi search, is sufficient 248. The but it alone less evi provide gent possibility does not circumstances —the probable ... Mere cause necessary exigent circumstances being destroyed dence after —existed warrant.”). justify a search without on the hotel room door officers knocked appeal, not at in this is issue Consent chal entry. and demanded Coles does not challenge the District Coles does finding us lenge appeal. He asks finding of cause. This Court’s only the or re prong to review second requires us to reexamine the appeal thus to the quirement exigency exception exception to the exigent circumstances requirement i.e., warrant whether — requirement. warrant exigency.9 police improperly created upon focused Our attention thus exigent circumstances Examples of of our prong second the remainder to, include, pursuit but not limited hot discussion. felon, possibility suspected may destroyed, removed or oth danger lives B. Richard, ers. U.S. v. 247-48 turn at the outset v. Johnson (5th Cir.1993); Rubin, see also 474 F.2d at States, There, supra. Su- United situations,8 these 268-69. limited preme the Fourth Court considered trumps need for effective law enforcement of a implications Amendment warrantless right privacy requirement very set facts to search on similar warrant, thereby excusing a search an oth Johnson, presented those here. erwise unconstitutional intrusion. Warden infor- police information from an obtained 294, Hayden, 298-99, v. 387 87 S.Ct. U.S. persons smoking opium mant that (1967). 1642, cir Exigent L.Ed.2d 782 18 Europe Hotel. the officers went When cumstances, however, do not Fourth meet investigate, immediate- if the government Amendment standards ly recognized opium, the smell of and then deliberately creates them. United States The did (3d traced the odor Room 1. officers Acosta, 1248, 965 F.2d 1254 Cir. room, so 1992); Duchi, occupied not know who United States v. 906 F.2d (8th 1278, Cir.1990); they knocked and announced themselves. 1284-85 United Timberlake, 592, delay, After a shuf- slight States v. 597 there “some stated, Supreme “emphasized 8. The As we the District Court never Court has that have exceptions requirement warrant explicit finding as to made an whether delineated,' carefully 'few in number and ... exigency. police impermissibly created the heavy police and that the bear a burden when findings of con- Remand for further fact and attempting urgent to demonstrate an need unnecessary, clusions of law is nevertheless might justify warrantless searches....” police finding inasmuch as a did Wisconsin, 740, 749-50, Welsh v. 466 U.S. exigency evidently implicit create the 2091, (1984) (quot- 104 S.Ct. 80 L.Ed.2d 732 cir- District Court's conclusion ing United States v. United States District justified cumstances the warrantless search. Court, U.S. S.Ct. (1972)). L.Ed.2d 752 in the fling entry or noise” room and then the to Coles’s hotel room before first opened defendant the door. securing The lead offi- a warrant. cer told the defendant that “I to talk want Johnson, In this inas suspect no bit,” you a little and the defendant fleeing and the search was of perma- “stepped acquiescently back and admitted ie., nent premises, Coles’s hotel room. 333 U.S. at [the officers].” S.Ct. More importantly, prior to an- proceeded 367. The officers to search the nouncing themselves the hotel room room, uncovering incriminating evidence of door, police surveillance had not been de-

drugs smoking apparatus. by tected Coles and no being evidence was destroyed at that point. exigen- Whatever Supreme The found that might cies have arisen after search violated the Fourth Amendment. announced at the door can- government had offered no reason not excuse their failure to first obtain a obtaining “for not except search warrant Indeed, search warrant. this case consti- the inconvenience to the officers and some tutes application of Johnson fortiori slight delay necessary prepare papers inasmuch as the attempted here present magistrate.” the evidence to a gain by subterfuge.10 access Id. at 68 S.Ct. 367. The Court noted While Johnson casts serious constitu- following factors were relevant to tional doubt upon (1) its suspect determination: no had been Coles’s hotel we do not conclude our (2) fleeing likely flight; to take discussion decision. Leaving search was of a [permanent hotel room aside the factual similarities between premises], vehicle; not of a movable Johnson and the instant appeal, we read (3) no evidence was threatened with re- Johnson focusing the Fourth Amend- moval or destruction. Finally, Id. inquiry ment upon the reasonableness and Court observed that “[i]f propriety of the actions taken this case were excused from the constitu- preceding the warrantless search. That duty tional of presenting their evidence to inquiry is also essential in police creat- a magistrate, it is difficult to think of a ed-exigency context. case which it should required.” be Id. C. Notwithstanding striking similarity case, between Johnson present Circuit, The Fifth appears to have government attempts distinguish area, John- taken the generally lead re- son, arguing case, that “in that quires exigent the Su- circumstances to exist be- preme Court did not rule that officers police decide to knock and an- fore impermissibly exigent created circum- nounce themselves at the door. In this stances; instead, it noted that govern- respect, Richard, United States v. supra, ment had not exigency.” established an is instructive. In that ap- officers Appellee’s Br. at 32 proached n.7. Under a fair a motel room looking for a man here, reading of Johnson as applied how- suspected drug of trafficking. After the ever, the police the instant case had no officers knocked on the door and an- justification for knocking demanding and presence, they nounced their people heard "maintenance,” 10. The officers asserted first "room which was also unsuccessful. get service” in an effort to occupants of only they It was then that them- announced open room 511 to the door. Because this selves as officers. unsuccessful, ploy they then asserted 368 circumstances, slamming. missibly exigent and create fo- softly drawers

talking they danger propriety were in and that on the and Fearing that cuses reasonableness being destroyed, the officers investigative the officers’ and actions without a warrant. the room leading up entry. entered to the warrantless tactics (5th Gould, v. 364 F.3d 590 See U.S. Circuit affirmed district The Fifth Cir.2004); Rico, v. 51 F.3d U.S. that officers created the finding court’s Cir.1995).11 (5th Exigent circumstances ac- by their own circumstances exigent provide exception will an war- ie., their by announcing tions — actions requirement rant where those easily have waited they could and when Compare found to be Unit- unreasonable. reaching a search warrant. obtained Munoz-Guerra, v. 788 F.2d ed States conclusion, “distinguish[ed] the court (5th Cir.1986) with United States v. exigent circum- cases where between (5th Cir.2001).12 Jones, 239 F.3d delay naturally during arise stances offi- a warrant and those where obtaining courts of have appeals Other followed deliberately have cers They Fifth Circuit’s lead. also look to (citations 994 F.2d at 248 circumstances.” propriety reasonableness omitted). court that exi- emphasized investigative po- actions and tactics of the until did not arise gent circumstances precede lice which relied at the door. agents announced themselves See, upon justify entry. warrantless time, successfully agents had By that Chambers, e.g., United States room, thus allow- covertly secured the (6th Cir.2005) (noting to maintain their surveillance ing them exception cannot issuance a warrant. Id. pending the at “if timing met controlled the giving the encounter rise to the search” clear, requiring showing Richard makes the Fifth “some of deliberate As Circuit, assessing imper part police evincing whether conduct on employs possible The Fifth Circuit two levels of The court noted that it was secure outside, inquiry: deliberate "first whether the officers covertly the residence from the ly created the circumstances with the putative the officers knew require intent avoid the warrant bad faith ment, investigative strategy "knock and talk” would second, even if did not do so require entry. at 788 F.2d faith, creating actions in bad whether their Jones, contrast, approached sufficiently exigency were unreasonable apartment investigate complaints preclude dispensation improper with the activity identify criminal and to the occu- Gould, requirement.” warrant pants. The a officers observed firearm in door, through plain open apartment view an compelled apartment which them to enter the Munoz-Guena, responded to In without a warrant. activity by anonymous tips drug establish- exigent The Jones court held that circum- ing a residence. surveillance around After justified entry. It stances the warrantless not- noticing suspicious activity, some the officers procedure along ed that the "knock and talk” was a walked the side of the residence and marijuana through plain investigative noticed view a reasonable tactic under the cir- Thereupon, cumstances, window. knocked the officers police did inasmuch as the not patio occupants of the one any activity ap- observe criminal before through motioned the door that he needed to apartment proaching and did not know get key. Fearing going was in fact that he occupants apartment of the were weapon, to retrieve the officers broke directly until armed were in front of the through occupants. the door arrested the apartment open door. 239 F.3d at 721-22. rejected agents’ ap- The Fifth Circuit patio proach to the door as unreasonable. intentionally properly knocking to evade the war- on- effort the door and an- an (citation omitted); requirement”) rant nouncing themselves. Duchi, United States v. Contrary Circuit, to the Fifth the rea- (8th Cir.1990) (adopting antecedent sonableness of the police investigative leading up exigency). to

inquiry tactics precipitating exigency tactics does compared As the decisions in those to to figure seem into the Second Cir- courts, however, the Second con- Circuit analysis. MacDonald, cuit’s as in broadly. doctrine exigency more strues Richard, the exigency provides lati- greater The Second Circuit by announcing their presence under cir- to in disre- tude law enforcement officers likely cumstances were to lead to a requirement. the warrant See garding warrantless search. find it hard to MacDonald, States 916 F.2d 766 United reconcile MacDonald with Richard. It (2d Cir.1990) (en banc). an- MacDonald suggests to us that the Second and Fifth following principle govern nounced the to adopted Circuits have inquiries different whether determinations about purposes deciding whether impermissibly create circum- impermissibly create circum- agents “when law enforcement stances: stances. manner, they entirely in an lawful do act create impermissibly circum- Although is an MacDonald en banc MacDonald, 916 stances.” F.2d at Circuit, opinion Second we are hard- heavily government here relies on pressed agree majority opinion. with the support position MacDonald to its We find dissent MacDonald much search of Coles’s hotel room more governing principles attuned constitutional muster. passes of the exception because the dis- sent concentrates on the reasonableness of MacDonald, an undercover officer investigative the actions and tactics of the apartment bought had entered an precede drugs. immediately then left their warrantless en- The officer noted, reported try. As the MacDonald “it building his observations dissent waiting other task members out- of the [is] force difficult conceive officers’ Approximately ten apartment side. minutes after return minutes after [10 purchase, controlled the undercover officer anything purchase drugs] their other apartment returned to the with reinforce- precipitate than in an pretext, effort They ments. their knocked announced crisis that did not then exist.” Id. at 776 Agents watching the presence. rear (Kearse, J., dissenting). The MacDonald apartment agents radioed stationed agents further noted dissent that the ar- occupants trying the front ram, battering rived at door with a escape through the back door. The “plainly anticipating] announce- agents at apartment door then used identity precipitate ment would battering entry. ram to force Judge Id. exigency.” Kearse dissent thus concluded that should not en- “[w]e

The Second found that Circuit by dorse such contrivances law enforce- agents’ impermissibly not cre- conduct did in ment officials their efforts to circumvent exigent ate the circumstances to circum- require- requirement. the the Fourth Amendment’s warrant vent warrant Id. at that agents The court noted the acted ment.” Id.13 out, have, (3d Acosta, Cir.1992). government points 1248 howev- as the Acosta, er, readily distinguishable cited to in United States v. is from this case. MacDonald to “knock and in- appeals tempted of to utilize the talk” courts our sister Like vestigative Having knowledge tactic. of and like the dis- referred we have activity MacDonald, criminal room both by the inside guided we are sent in Bradley’s from from observations order determine wheth- in to that principle observations, the police their own earlier or manufacture impermissibly police er the legitimate no reason to the circumstances, had utilize must we create procedure. Compare “knock and talk” propriety the reasonableness look to (“Because Jones, 239 F.3d at 721 the offi- investigative tactics actions were not convinced that criminal ac- cers entry. Mind- warrantless preceding their taking and did not tivity place have the we now examine principle, ful that reason to that the any occupants believe circum- finding District Court’s armed, the talk’ proce- were ‘knock and stances. investigative a dure was reasonable tactic circumstances.”). any In under the D. identifying person- hotel in themselves as analysis particularly here Our providing nel “room service” “mainte- (1) overarching three factors: informed nance,” police subterfuge, resorted (2) cause; probable existence clearly manifesting their intention to mis- gain entry by subterfuge; initial decision occupants believing they lead that (3) surveil covert undetected At police very officers. were factors each of these We address lance. least, the the officers actions of at this below. time had no demonstrated vyhich earlier, Johnson, we discussed investigating of merely intention matters Supreme emphasized “[a]t obtaining further or perhaps consent entry was demanded the time search.14 magis- of evidence which possessed indicates, the record plainly As the offi probable have found might trate cers enter room without decided issuing a search warrant.” cause It warrant. was that decision to conduct a case, too, In this U.S. at 68 S.Ct. 367. of the and search cause based police possessed so, any urgent need to do without Bradley, the initial observations of very impermissibly created evidence, manager. Based on this hotel upon by government relied this case. have could obtained search Timberlake, See United States v. hotel room.

warrant (D.C.Cir.1990) (holding that police government’s charac- Contrary to circumstances where terization, present case record no evidence “[t]he does contains reasonably door, at- they when knocked on the police, situation where First, pos- gain did not the "Coles” officers here order access to Coles's room. warrant, they as did in Acosta. government's sess an arrest reliance on Acosta is there- Second, speak officers here did not truth- misplaced. fore identifying fully at the themselves Acosta. found had in this court Third, circumstances, govern- 14. Under these here had been the officers inside ment's assertion that the knocked on learning drugs illegal thus the hotel room door to "seek information” or fourth, here had the room. And the officers search,” Appellee’s "to ask for Br. consent every to enter room 511 without intent seriously. cannot be taken short, warrant'. it is clear that the officers engaged pretextual conduct in this case anything intended other than a warrant- gain entry to room deliberately apartment”). less search of the exigency created the by knocking on the door to room 511 and demanding entry. Nor is this a case where Coles had surveillance, detected the law enforcement IV.

thereby creating urgent need for the bypass officers to the warrant require- Focusing on the reasonableness of the Jones, (“[The ment. See 239 F.3d at 721 investigative officers’ tactics triggering the Fifth has Circuit] limited the cir- exigency, we conclude that the im- exception cumstances to situations when a permissibly manufactured the exigency. suspect detects law enforcement surveil- We therefore hold circum- lance rather than when officers make their stances' exception to the warrant require- known.”). presence There is no indication ment does not justify the warrantless en- in the record that Coles was aware try and search of Coles’s hotel room. aAs prior surveillance to the officers’ decision result, physical evidence that led to gain entry. Compare United States conviction, Coles’s which evidence was the Marshall, (7th Cir.1998) 157 F.3d product of an seizure, unlawful search and (holding that warrantless should have suppressed. been suspect’s justified home was because Accordingly, will we reverse the District reasonably believed the occu- Court’s denial of suppression mo- pant was aware of their and was tion, and we will vacate Coles’s conviction preparing evidence); to destroy U.S. v. and sentence and remand to the District Rodea, (5th Cir.1996) Court for further proceedings consistent (defendant’s detection of officer con- opinion. with this ducting surveillance outside of mobile marijuana home where had been delivered ROTH, Judge, Circuit dissenting. justifying The majority’s opinion is based on search). Consequently, proposition dubious rights, two as de- police here could have maintained their Court, termined Supreme make a surveillance until a search warrant had wrong. More concretely, majority’s been secured.15 decision exigency to focus the analysis on emphasize that the record reveals no subjective intent investigating urgency or need officers to take officers, subsequent, haphazard action, prior immediate to the officers’ de- investigation reaction the generates on the cision to knock on Coles’s hotel room door part criminal, alleged produces is, entry. course, and demand It true “could’ve, should’ve, analysis would’ve” that once the officers knocked on the door is so anathema judicial to our role. announced, “open the this is the reasons, For respectfully these I dissent. police,” they heard indicating sounds being destroyed. evidence was matter, But that As an initial majority’s cen- naturally did not arise or from tral reliance on misplaced. Johnson is reasonable investigative tactics. The majority seemingly accepts gov- Quite officers, to the contrary, after argument ernment’s that in Johnson “the pretextual announcements had failed Supreme did not rule that officers Although the record is not clear as to evident that there was sufficient time dispatched whether Officer Wilson was to se- officers to have remained in surveillance warrant, cure a supra, search see note 2 pending it is the issuance of a warrant. majority’s circum- math is not supported The

impermissibly majority the The im- instead, govern- Fourth Amendment. stances; it noted that the plicitly the fact anal- acknowledges that its exigency”. ment had not established ysis constitutionally when it is unmoored govern- majority and the regard, the this conflicting Fifth and categorizes Second about ment are correct—Johnson ma- precedent. According Circuit the Johnson, the exigent circumstances. Fifth jority, correctly focuses the Circuit specifically found that Supreme Court police on the reasonableness of the investi- or contraband threat- “[n]o gative tactics rise to giving the removal destruction.” 383 ened with incorrectly while the Second Circuit focus- 367. This 68 S.Ct. howev- U.S. legality. majority’s es on the reason- The er, entirely exigency. opposed is about As test, however, imposes a standard ableness Johnson, being the smoked opium from police behavior that derived is.not sound of a toilet here the heard the police the Constitution. flushing. Subsequently, police the found drugs in around the toilet. and Fourth The Amendment the Constitu- the people “against tion unreason- protects Nonetheless, argués majority that able seizures.” and U.S. Const. searches Johnson, here, police had no as in are amend IV. Such unreasonable searches justification knocking demanding in the one’s “illegal” sense violate securing before rights. im- give constitutional In order to majority’s The use of Johnson a warrant. however, port, to the difference between salient, distinguishing factor ignores the jurispru- Fifth Circuit Circuit Second ease; here, there was a with the instant dence, acknowledge category one must exigency. ie., police legal, behavior which is not vio- Constitution, yet lative -of unreason- Johnson, misreading of With this Otherwise, Fifth able. Circuit’s use of majority ignores point then synonymous “unreasonable” would be with engage per- knocking attempting “legal.” Second Circuit’s use of The are not violations of son conversation however, majority, goes great lengths generally Fourth Amendment. See . distinguish competing two threads Bostick, Florida v. U.S. result is a jurisprudence. The reasonable- (1991) (noting 115 L.Ed.2d 389 S.Ct. inquiry completely ness devoid aof base proscribes Fourth Amendment “[t]he the Fourth Amendment. seizures; it unreasonable searches voluntary proscribe coopera- does practical flaw with reasonable- tion.”). Also, entry dwelling into a in the captured majori- is inquiry ness best face of circumstances when the ty’s police statement that the “had no le- cause is not a viola- have gitimate reason to utilize ‘knock Payton, tion of the Fourth Amendment. First, talk’ use procedure.” majority’s 586-87, 1371. The 445 U.S. at 100 S.Ct. around quotation phrase marks feels, however, majority these two and talk” a result of investi- “knock performed constitutional actions technique otherwise lexi- gatory entering sequence greater than the sum con its compatibility due to and, therefore, parts way constitute a vio- in a Fourth Amendment similar to lation of Fourth Amendment because Fifth association of Miranda with the Gould, and, consequently, could have See 364 F.3d at Amendment. “ (noting ‘knock and talk’ should have waited to warrant. .obtain investigatory practice clearly Acosta, has precedent. been rec- this Circuit’s legitimate.”). majority’s ognized (quoting States, The at 1254 Scott v. United however, 128, 136, holding, disturbs this venerable U.S. 98 S.Ct. 56 L.Ed.2d precedent. (1978), proposition that “sub- jective intent alone ... does not make

Second, the assertion that there was no otherwise lawful illegal conduct or uncon- legitimate reason for investigation further stitutional.”). purely speculative. By communicating Coles, contrast, with Circuit, could have learned the Second whose carrying weapon, believe, whether he was precedent, I is more consistent expecting area, whom he was to transact busi- with our Circuit’s in this relies on an ness, or other bits of information objective which analyzing test when exigent cir prone MacDonald, individuals to disclose like cumstances. '916 F.2d at 769. potential circumstances. The information regard, the Second Circuit’s focus help would meet the Supremé conviction is truer to precedent. Court See burden of reasonable doubt—a generally concern re- California, Horton v. 496 U.S. Supreme flected Court’s observation 110 S.Ct. 110 L.Ed.2d 112 (1990) that: (arguing that “evenhanded law en forcement is best achieved applica Law enforcement officers are under no objective tion of conduct, standards of duty constitutional to call a halt to a ¡ rather than that depend upon standards investigation criminal the moment subjective state mind of the offi have the minimum establish cer.”). cause, quantum of evidence may fall far short of the amount A correct inquiry 'analyzes each of the criminal necessary to support convic- interactions between police and .the tion. Coles.16 The first interaction between the States, Hoffa, 310, police v. United 385 U.S. Sgt. Josey’s and Coles was an- (1966). S.Ct. L.Ed.2d 374 The nouncement of “room service.” The sec- majority’s opinion allows Josey’s Coles’s malfea- ond interaction was Sgt. announce- sance law enforcement’s ability seeking entry restrict ment that he was to fix a support is, reported criminal conviction and leak. third interaction therefore, an unwarranted departure Sgt. Josey’s from “open announcement Supreme precedent. police.” Upon this is the then hearing the toilet, sound of a flushing en-

Finally, majority’s opinion, apartment. tered the Since none of the adoption of the jurispru- Fifth Circuit’s three interactions violated the Fourth dence, only implemented can via an Amendment, and since was made inquiry subjective into the intent of the only on hearing flushing, the toilet I would exigency. officers who created the As the affirm the District Court’s denial of Coles’s notes, majority step analy- the first in the suppress physical motion to evidence. sis is to ask “whether the officers deliber- ately created

with the bad faith intent to avoid the war- requirement.” Gould,

rant 364 F.3d at

590; Such an inquiry is inconsistent with only I note appeal issue improperly exigency. vis-a- created the suppress vis the motion to is whether the

Case Details

Case Name: United States v. Terrance Coles

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 9, 2006

Citation: 437 F.3d 361

Docket Number: 04-2134

Court Abbreviation: 3rd Cir.