Courts Consider Warrantless Searches

Seventh Circuit Throws out Warrantless Search of House, Retrieval of Gun based on Snapchat Viewing:  Banks

United States v. Banks, No. 22-1312 (7th Cir. 2023)

In April 2021, Springfield police saw a Snapchat post of Banks barbequing on his front porch with a gun sitting on the grill’s side shelf. One of the officers saw the post, recognized Banks’ voice, and knew him to be a convicted felon. The officer and several others headed to Banks’ home within minutes of seeing the video.

Upon arrival, the officers saw Banks on his porch next to the grill. A few officers went around the back to avoid detection and approached the porch by walking through the backyard. Officers arrested Banks and found a pistol and a box of ammunition. The police did not have a warrant to enter Banks’ porch or to search his home.

Banks was charged with unlawful possession of a firearm under 18 U.S.C. 922(g). Banks moved to suppress the gun and ammunition found in his home, arguing that the officers needed a warrant to enter his porch and arrest him. During an evidentiary hearing, officers stated that they did not believe they needed a search warrant to enter the porch because the police had reasonable suspicion that Banks, a convicted felon, was committing a crime by possessing a gun. One of the officers also testified that he did not believe they had enough time to obtain a warrant from a judge.

After the hearing, the magistrate recommended that the district court deny Banks’ motion to suppress. The magistrate concluded that the officers’ actions were reasonable under Terry v. Ohio, and that the officers had ample suspicion to step onto Banks’ front porch. The district court agreed and denied Banks’ motion. Banks was convicted and appealed to the Seventh Circuit.

The Seventh Circuit noted that by 1984, the Supreme Court had made clear that the Fourth Amendment protects the home’s curtilage which includes a home’s porch. Oliver v. United States, 466 U.S. 170 (1984). Based on a straightforward application of Oliver, the Seventh Circuit was clear that the officers’ actions violated the Fourth Amendment. The police were required to obtain a warrant because Banks’ home-including his porch-is not a place the police could enter without consent or exigent circumstances. The government did not argue that Banks presented no imminent threat or flight risk under the circumstances. Nor did the police even attempt to conduct a consensual “knock-and-talk.” The officers’ failure to obtain a warrant before entering Banks’ porch was a clear Fourth Amendment violation.

The Seventh Circuit went on to hold that the unlawful entry tainted the evidence they discovered. Even so, the government argued that the evidence should not be suppressed under the good-faith exception to the exclusionary rule. However, the court found that the officers did not obtain the evidence in “reasonable reliance on binding precent” such that the good-faith exception would apply.

The Seventh Circuit concluded with:

The big picture takeaway from today’s decision deserves underscoring. The police could have avoided this outcome by taking a small but necessary step. The suppression testimony confirmed that Sangamon County, where Springfield is located, has a judge on call 24 hours a day, 365 days a year to consider and issue search warrants. The officers here had more than enough to pick up the telephone, call the on-duty judge, and get the authorization the Fourth Amendment required before stepping onto Banks’s porch.

Judgment of the district court was reversed, and the case remanded.

Tenth Circuit Throws Out Warrantless Search of Backpack: Johnson

Facts:  Warantless Search of Backpack, Motion to Suppress Denied in District Court

Johnson was arrested following an encounter on a Greyhound bus with law enforcement. Officers discovered two packages of methamphetamine in Johnson’s backpack, and Johnson gave some incriminating statements. In the district court, Johnson moved to suppress the physical evidence and his statements. The district court denied the motion in a short, two-page order.

On appeal, Johnson argued that (1) there was no probable cause to arrest him; (2) law enforcement illegally searched a bundle of clothing in his backpack while on the bus following the arrest; and (3) law enforcement conducted an illegal search of the backpack and bundle later at the DEA’s office.

The Tenth Circuit concluded that officers had probable cause to arrest Johnson and seize the bundle of clothing and backpack. However, the court held that while seizing the items from the bus, law enforcement conducted an illegal search of the bundle by reaching inside Johnson’s open backpack and feeling the bundle in an exploratory manner. A second warrantless search also took place at the DEA’s office when officers again went through the backpack.

The government argued that the plain-view exception to the warrant requirement applied to the officer’s actions because it was a “foregone conclusion” that the backpack contained contraband. It is well established that the plain-view exception applies if (1) the officer was lawfully in a position from which the object seized was in plain view, (2) the object’s incriminating character was immediately apparent; and (3) the officer had a lawful right to access the object. But as the Tenth Circuit noted, the plain-view exception may support the warrantless seizure of a container believed to contain contraband, it does not automatically support a subsequent search of concealed contents of the container. Instead, a subsequent search is only permissible if the contents of the seized container are a “foregone conclusion.”

Holding:  Warrantless Searches that Violated the Fourth Amendment

Reviewing the district court’s denial of Johnson’s motion to suppress, the Tenth Circuit concluded that the incriminating character of the backpack and bundle was immediately apparent based on the facts supporting officer’s probable cause to arrest Johnson. As such, officers could lawfully seize those items. And, logically, in seizing those items some incidental touching will occur. However, the officer could only search the backpack and bundle if he obtained a warrant, another exception applied, or the contents were a foregone conclusion. The district court concluded that the contents were a foregone conclusion, which became the crux of Johnson’s appeal.

Notably, the government argued that the officer’s handling of the bundle on the bus was no search at all. But the Tenth Circuit expressly rejected the government’s argument noting that by manipulating the defendant’s bag in a manner that the defendant did not reasonably expect from other passengers, the officer conducted a search within the meaning of the Fourth Amendment.

Turning to whether the bundle’s contents were a foregone conclusion, the Tenth Circuit analogized the bundle of clothing to that of a container that was “unrevealing in appearance” and “did not reveal its contents.” Thus, the court concluded that the bundle’s contents were not a foregone conclusion when the officer searched it on the bus. Accordingly, the warrantless search was a violation of Johnson’s Fourth Amendment rights.

Additionally, the Tenth Circuit held that the officer’s second search of the backpack and bundle at the DEA’s office without a warrant was also a constitutional violation. The court’s analysis of the second search was essentially the same as the initial search on the bus-officers could seize the backpack and bundle, but could not search them without a warrant or some exception. The government argued that by the time the backpack had reached the DEA office, its contents were a foregone conclusion. At the time of the second search, the officer knew of a few additional facts about the bundle from his actions on the bus-the bundle was oblong shaped and was hard to the touch and had a crinkling king of feeling. But because the search on the bus was held illegal, the officer could not rely on new, unlawfully obtained facts to justify the later search at the DEA office.

Accordingly, the Tenth Circuit affirmed the district court’s ruling that officers had probable cause to arrest Johnson and seize the backpack and bundle. However, the court held that when the officer felt the bundle on the bus, he conducted a warrantless search in violation of the Fourth Amendment. The officer therefore could not rely on information from the first illegal search to justify the second search at the DEA office. Because these warrantless searches violated the Fourth Amendment, the physical evidence yielded from the search must be suppressed. The court accordingly reversed the district court’s denial of Johnson’s suppression motion, vacated Johnson’s conviction and sentence, and remanded for further proceedings.

United States v. Johnson, No. 21-2058 (10th Cir. 2022)

Community Caretaking Not Applicable to Warrantless Home Searches:  Canigla

On May 17, 2021, the Supreme Court issued an opinion in Canigla vs. Strom, No. 20–157.  In Canigla, the Supreme Court held that the “community caretaking” duties do not extend to the warrantless search and seizure of a home.

Canigla’s Weapons and the Police

Canigla had an argument with his wife.  During that argument he retrieved a handgun from the bedroom and asked his wife to “shoot [him] now and get it over with.”  His wife did not shoot him, opting instead to spend the night at a hotel.  The next morning, she tried to call him but he did not answer.  She asked the police for a welfare check.

The police arrived at Canigla’s house, asking him questions.  He denied that he was suicidal.  He agreed to go to a hospital for a psychological evaluation, but only after the police promised not to confiscate his guns.  Once the ambulance took Canigla, the police went inside the house and took the guns.

Canigla’s Sues Over Community Caretaking Exception

Canigla sued, indicating that the police violated the Fourth Amendment when they went into his home without a warrant.  The district court tossed the case out. The First Circuit affirmed because the need to take the guns fell within the “community caretaking exception.” This is based on the idea that police officers have noncriminal reasons to interact with motorists on “public highways,” to the warrant requirement.

Community Caretaking as Applied Here

Normally, the police must consider whether they have consent, an exception to the warrant requirement.  This would be like “exigent circumstances” or a state-law exception to the warrant requirement. All that mattered in this instance, was whether the efforts to protect Canigla were “distinct from the normal work of criminal investigation, fell within the realm of reason,” and tracked what the court viewed to be “sound police procedure.”

The Supreme Court’s Decision

The Supreme Court determined that the “community caretaking” rule that the First Circuit used was beyond what the court recognized.  The First Circuit’s decision assumed that the officers did not have a warrant or consent.  The First Circuit did not evaluate whether the officers were investigating a crime.

The Supreme Court noted that the First Circuit was using a Supreme Court case, United States vs. Cady, to make this decision but the difference was that the place at issue in Cady was a car, not a home.  Even in the Cady case the court stated that there was a difference between a car under police control and a car that was “parked adjacent to the dwelling place of the owner.”

The Court reasoned that the community caretaking doctrine does mention that there are situations where cars get stuck on the road or accidents.  But this does not give the police to perform these tasks anywhere.  The police officers did not have a warrant and they entered his home.  That is just not allowed in this instance.

The Supreme Court vacated the judgment and sent the case back down for further proceedings.

Denial of Motion to Suppress Statements Reversed by Third Circuit: Forde

Before the district court, Forde made a motion to suppress statements.  These included the physical evidence, his statement “that’s weed,” and statements made in response to officer’s questioning. The district court denied suppression in all respects. Forde appealed that decision to the Third Circuit.

Forde was traveling to the Virgin Islands from the U.S. mainland. Customs and Border Patrol officers performing a routine x-ray scan of luggage revealed baggage containing marijuana. Officers returned the luggage to the baggage belt with the intent on arresting whoever claimed it. When Forde retrieved the luggage, Customs and Border Patrol officers intercepted him.

During a secondary inspection, officers located the marijuana in the luggage and Forde, spontaneously and without prompting, stated “that’s weed.” Officers continued to ask questions of Forde to which he responded. Forde was not read his Miranda rights at baggage claim or during the secondary inspection.

Forde's Appeal

Warrantless Searches

Generally, warrantless searches are per se unreasonable under the Fourth Amendment. However, courts have long recognized a “border exception” to the Fourth Amendment. Thus, the Third Circuit held under the border exception, officers did not require a warrant to search Forde’s luggage. The court affirmed the district court’s denial of Forde’s motion to suppress the physical evidence obtained at the border.

Turning to Forde’s statements made to Border Patrol, the Fifth Amendment protects individuals from prosecutors using statements made in custodial interrogations where there is an absence of Miranda warnings. The question before the Third Circuit on appeal was whether Forde was “in custody” at the time of his statements which would have required officers to Mirandize Forde prior to questioning.

Forde's Spontaneous Statement

The district court had concluded that Miranda did not apply to Forde’s questioning because it occurred in the context of a border search. However, the Third Circuit recognized that the border exception ceases to apply once the questions are aimed only to further potential criminal prosecution instead of admissibility. According to the Third Circuit, the question of admissibility was resolved before Forde was even questioned at baggage claim because it was the officers’ intent to arrest whoever claimed the luggage.

Nonetheless, the Third Circuit determined that Forde was not in custody when he made statements at baggage claim. The court also determined that the utterance “that’s weed” during the secondary inspection was not protected by the Fifth Amendment as it was spontaneous and not made in response to any questioning by law enforcement.

Forde's Secondary Questioning

However, the Third Circuit concluded that Forde’s questioning during the secondary inspection did violate Miranda. Forde was unquestionably in custody at the time of the secondary inspection. Forde was interrogated by law enforcement without being properly advised of his Miranda rights. Because the questions asked during the secondary inspection were aimed at Forde’s guilt, the border exception to Miranda did not apply. Accordingly, the Third Circuit determined the district court erred in denying Forde’s motion to suppress statements made during the secondary inspection.

The district court’s denial of Forde’s motion to suppress statements was reversed and the case remanded for further proceedings.

United States v. Forde, No. 19-3654 (3d Cir.)

JEREMY’S TAKE: Miranda v. Arizona was decided over 50 years ago. Yet, we still see cases where individuals’ Fifth Amendment rights are violated by law enforcement failing to give proper warnings prior to in custody questioning. In Forde, the district court relied on the border exception to conclude Forde’s Miranda rights were not violated by officer’s unwarned questioning. This was error. Where law enforcement asks questions of an individual in custody to ascertain guilt, Miranda warnings must be given.

Warrantless Search of Bag While Person Was Handcuffed:  Buster

FACTS:  Warrantless search of bag possessed by person who was handcuffed and face-down on the ground

Buster was believed to be a suspect in a domestic assault.  After refusing a consensual encounter with the officers Buster “took off running,” tripped and fell.  He was wearing a “single strap bag that goes across your body” and the pouch ended up in front of Buster when he fell.

Buster said that the bag’s strap was choking him so the officers cut the strap, grabbed the bag and removed it from Buster’s person.  The bag felt “hard to the touch” and the officers opened the bag and found a gun and a box of ammunition.  More bullets were found in his pants.

The officers asked Buster questions before reading him his Miranda warnings.  Then they gave him his Miranda warnings and then asked the same questions that they discussed in the pre-Miranda interview.

Buster was charged with felon in possession of a firearm in federal court.  He filed a motion to suppress the firearm, the ammunition and several statements.  The court granted the motion to suppress the post-Miranda statements but denied the rest of the motion.  The court stated that the initial stop was valid because “the officers had reasonable suspicion that Buster was the suspect in a reported domestic assault incident potentially involving a gun.” Further, “the pat-down of Buster’s person and the search of his bag were reasonable” because “the officers had reason to believe they were dealing with an armed and dangerous person.”

Buster engaged in a conditional plea where he kept the ability to appeal the denial of the motion to suppress.  Buster was found guilty and sentenced to 51 months imprisonment.

HOLDING:  The District Court's denial of the Motion to Suppress was Incorrect

REASONING:  The District Court gave one reason for denying the motion to Suppress:

Specifically, the district court concluded that the “search of [Buster’s] bag” was constitutionally reasonable under the protective search doctrine associated with Terry v. Ohio, 392 U.S. 1 (1968).

Terry allows for warrantless searches only under certain circumstances:

Indeed, Terry itself states that such searches may lawfully be conducted as part of an investigatory stop only when an officer “reasonably . . . conclude[s] in light of his experience” that “the persons with whom he is dealing may be armed and presently dangerous.”... For that reason, “a protective search—permitted without a warrant and on the basis of reasonable suspicion less than probable cause—must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.”

However by the time that the officer was going through Buster’s bag, Buster was already handcuffed and away from the bag.

“When the officer opened Buster’s bag (thus beginning a “search” of the bag), Buster was handcuffed on the ground and had no access to it. Indeed, the record is clear that the officers opened the bag and examined its contents after they had tackled Buster, handcuffed him, cut the bag off his body, and “move[d] it away from his person…Having already used significant force to secure the scene for safety purposes, the officers cannot leverage the safety rationale into a justification for a full-scale search.”

The court indicated that because the only justification in why the the bag was away from Buster was because of the need to do so for officer’s safety and because at the time of the search there was no danger to the officer’s safety, the denial of the motion to suppress was inappropriate:

“We hold only—but importantly—that a doctrine authorizing a limited warrantless search to protect officer safety cannot be stretched to cover situations where there is no realistic danger to officer safety. Accordingly, we reverse the district court’s denial of Buster’s motion to suppress the firearm.”

The court held that the firearm should have been suppressed and that Buster must have a chance to withdraw his guilty plea.  No. 21-4101

Private Search Doctrine Upheld in Ninth Circuit: Wilson

Wilson's Case and Procedural History

Google's Awareness of Wilson's Potential Content

Google “became aware” that Wilson attached four files that included apparent child pornography.  It is unclear if the email was sent.  Google automatically classified thee attachments as A1 which meant “content contains a depiction of child pornography” and sent a CyberTipline report to NCMEC, the National Center for Missing and Exploited Children.

NCMEC then sent the email attachments to the San Diego Internet Crimes Against Children Task Force along with geolocation info associated with the IP addresses.  This tip was forwarded to the San Diego Internet Crimes Against Children Task Force.  An agent received the report and inspected the images without a warrant. This was without knowledge of whether or not a google employee had reviewed them.  No one at google viewed the images before sending the report to NCMEC and no one at NCMEC opened or viewed the images in the report.

Officer Views Images Without a Warrant

The agent reviewed the attachments without a warrant and secured a search warrant for Wilson’s email account.

“His affidavit asserted that probable cause for the warrant was based on two facts: first, that “Google became aware of four (4) image files depicting suspected child pornography;” and second, that he had “reviewed the four (4) images reported by Google to NCMEC and determined they depict child pornography.”… The affidavit did not include the fact that Google had originally classified the images as “A1” or provide any detail about how Google had either classified or later automatically identified Wilson’s images as apparent child pornography.”

The Police Search and Find Incriminating Material

The officers searched and found evidence of child pornography at Wilson’s residence.  The search discovered a bag that had a check book and a thumb drive with thousands of images of child pornography.  These images included the four images reported by Google.

Private Search Doctrine Claim Denied: Wilson's Charge and Suppression Motion

Wilson was charged with distribution and possession of child pornography.  He filed a motion to suppress the search.  The court denied the motion to “suppress on the ground that the government’s warrantless search did not exceed the scope of the antecedent private search and so did not require a warrant.”

Subsequently, he pled guilty and was sentenced to time.  Following, he filed an appeal.

The Private Search Doctrine

Burdeau v. McDowell:  There is a difference between when a police officer engages in a search and when a private citizen engages in a search.  In Burdeau v. McDowell, 256 U.S. 465,  the Supreme Court determined that the Fourth Amendment gives protection against unlawful searches and seizures.   This protection applies to governmental action, not that by private citizens.

Coolidge v. New Hampshire:  In Coolidge v. New Hampshire, 403 U.S. 443, 489, the Supreme Court had to consider the implications of a private party seeking out her husband’s guns and taking them to the police station to be used as evidence against him.  The court determined that the “relevant inquiry, according to the Court, was whether the suspect’s wife, “in light of all the circumstances of the case, must be regarded as having acted as an instrument or agent of the state when she produced her husband’s belongings.”

The record showed the suspect’s wife had shared the suspect’s guns and clothes with local police “of her own accord,” Coolidge held that “it was not incumbent on the police to stop her or avert their eyes” when offered the critical evidence.”

Walter v. United States:  In Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), a package of obscene films were delivered to the wrong address.  The recipient opened the packages and examined the boxes and read explicit descriptions of the contents of the film.

They notified the police who tried to hold the film up to the light and observe it.  They were unable to view the evidence, so the police seized the films and viewed one of them without a warrant.

A divided court noted that a search of the contents was necessary in order to have cause to believe that a crime was committed.  The police had gone beyond the physical bounds of the private search because the private party never viewed the films:

“The private search [thus] merely frustrated [the] expectation [of privacy] in part,” not in full…“It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection.

United States v. Jacobsen:  In United States v. Jacobsen, 466 U.S. 109 (1984), the Supreme Court evaluated the scope of private searches.  While examining a damaged package, FedEx employees opened the package, cut open the tube within the package and found a series of four zip-lock plastic bags, the three innermost containing a white powder.

The DEA came next, and  visually inspected the plastic bags, opening each with a knife.  Agents pulled out some of the white powder and did a field test on it.

The court determined that they could “’reexamine,' that is, examine in the same manner, the package previously examined by FedEx, the private party.”  The court then stated that the private search doctrine exception turns on parity with the private search:

“[O]nce frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information.  This meant that the “’removal of the plastic bags from the tube and the [government] agent’s visual inspection of their contents’ did not exceed the scope of the private search as to the information obtained.” 

Then the court noted that:

"the government’s chemical field test of the substance in the properly seized plastic bags was nonetheless not a search within the meaning of the Fourth Amendment, because “governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no legitimate privacy interest.””doctrine

Application of the Private Search Doctrine

Next, the court evaluated the circumstances of this case.  The court noted that Google does not keep a repository of child pornography.  Also, Google only communicated to NCMEC there were four photos uploaded that matched images previously identified by some Google employee, some time ago, as child pornography, tagging it as A1.

Furthermore, Google did NOT view the images.  It was the officer that indicated he opened and reviewed each image to determine whether it was a case that could be investigated.  The government learned far more when the officer viewed the photos and included a detailed description on its search warrant affidavit of each photo.  The court noted that:

“Given the large gap between the information in the CyberTip and the information the government obtained and used to support the warrant application and to prosecute Wilson, the government search in Walter offers a much more apt comparison to the circumstances here than does the government search in  Jacobsen.” 

Also, the court indicated that viewing Wilson’s email attachments expanded the information available to law enforcement far beyond what the label alone conveyed.  No one viewed the attachments until the agent viewed them without a warrant.

If the evidence of the photos had not been on the search warrant affidavit, there would not have been enough information for probable cause.  The court noted the government viewing the attachments without a warrant was an additional intrusion on Wilson’s privacy interest.

The prosecutors also argued there was no intrusion because Google had already flagged these sorts of files and classified them already in Google’s database of hash values. As such, the agent’s search did not exceed the bounds of a private search.  But the court disagreed:

“Even if Wilson’s email attachments were precise duplicates of different files a Google employee had earlier reviewed and categorized as child pornography, both  Walter and  Jacobsen—and general Fourth Amendment principles—instruct that we must specifically focus on the extent of Google’s private search of  Wilson’s effects, not of other individuals’ belongings, to assess whether “the additional invasions of [Wilson’s] privacy by the government agent ... exceeded the scope of the private search.””  The court noted that Fourth Amendment rights are personal rights and that while Wilson did not have an expectation of privacy in other individuals files, he had an expectation of privacy in his own files. 

In short, whether Google had previously reviewed at some earlier time, other individual's files, is not pertinent to whether a private search eroded  Wilson’s expectation of privacy.

Under the private search doctrine, the Fourth Amendment remains implicated “if the authorities use information with respect to which the expectation of privacy has not already been frustrated.”

Conclusion: Court Overturned Case, Private Search Doctrine Violation

The court noted that Agent Thompson violated Wilson’s Fourth Amendment right to be free from unreasonable searches when he examined Wilson’s Email attachments without a warrant.  The court reversed the decision to deny Wilson’s motion to suppress.

Minor With No Exigent Circumstances:  Lange

Lange's Contact With Police

Lange drove past a police officer honking his horn and listening to loud music with the windows down. The police office followed Lange and turned on his overhead lights, a signal that Lange should pull over.

Lange continued driving and drove into the attached garage in his driveway. The officer followed and questioned him inside the garage.

The officer found him to show signs of intoxication and engaged in field sobriety tests. After the tests, Lange was subjected to a blood test. His blood alcohol level showed to be more than three times the legal limit.

Lange was charged with misdemeanor driving under the influence of alcohol and a "lower level" noise infraction. There is no information in the court opinion about a charge for evading arrest.

Lange's Suppression Motion

Lange filed a suppression motion requesting asking all evidence obtained after the officer entered the garage to be thrown out. Lange argued that the Fourth Amendment prohibited this warrantless search. The government opposed, stating the officer had probable cause to arrest Lange for "failure to comply with a police signal." Yet, this charge was not listed or mentioned.

The government also argued the pursuit of a suspected misdemeanant was always an exigent circumstance.  In turn, this authorized a warrantless home entry. Lange's motion was denied and the California appellate court and California top appellate court also confirmed.

The California top appellate court said Lange's failure to immediately pull over when the officer flashed his lights created probable cause to arrest him for a misdemeanor. The court also stated a misdemeanor suspect could "not defeat an arrest which has been set in motion in a public place” by“retreat[ing] into” a house or other “private place.” The court stated that an "officer's hot pursuit’ into the house to prevent the suspect from frustrating the arrest” is always permissible under the exigent-circumstances “exception to the warrant requirement.”

The Fourth Amendment and Exigent Circumstances

Generally speaking, the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The word "reasonable" is doing a great deal of work in this explanation. Generally speaking, an officer needs to get a judicial warrant before entering a home without permission.

There are exceptions. One such exception is "exigent circumstances." That exception applies when “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.” These emergencies include things where there is a "compelling need for official action and no time to secure a warrant."

Examples of this include entering a home without a warrant to render emergency assistance, protecting someone from imminent injury, preventing a suspect's escape or preventing someone from destroying evidence. This is normally evaluated on a case by case basis. Here, the court is looking at how should this be applied to someone who is suspected of committing a misdemeanor who flees from police and gets into their home.

The Court's Decision:  Misdemeanor Was Minor with No Exigent Circumstances

The Supreme Court indicated that the key to misdemeanors is that they usually limit prison time to one year and are usually minor. The court cited several examples of misdemeanors for demonstration purposes.

The court indicated that when minor offenses are involved the police do not usually face the kind of emergency, or exigent circumstance, that can justify a warrantless home entry. The court stated that there is no categorical rule to pursue a misdemeanant into a house:

"When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself.3 But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency.When the nature of the crime, the nature of the flight, and surrounding facts present no such exigency, officers must respect the sanctity of the home—which means that they must get a warrant."

The Reversal

The Supreme Court reversed the decision of the California Courts and sent the case back down. No. 20–18

Fourth Circuit Reverses Denial of Motion to Suppress Based on Lack of Reasonable Suspicion:  Peters

Facts:  Peters was detained until he lifted his shirt, gun found

Peters was indicted on one count of possession of a firearm by a convicted felon. Peters and another individual, Garrison, were walking down a sidewalk when officers approached them, accused them of trespass, and requested that they lift their shirts to show that they were unarmed. Garrison was permitted to walk away after lifting his shirt while Peters was seized until he did so. The officers found a firearm on Peters pursuant to the seizure.

Peters Files a Motion to Suppress and was Denied

Peters moved to suppress the evidence in the district court, arguing that the officers lacked reasonable suspicion when they seized him. After an evidentiary hearing, the district court found the stop valid and denied the motion to suppress. Peters then entered into a conditional plea agreement which preserved his right to appeal the denial of his motion to suppress.

Fourth Circuit:  Not a Consensual Encounter and No Reasonable Suspicion

On appeal, the Fourth Circuit looked to the totality of the circumstances and found Peters was seized approximately one minute into the encounter when the officer threatened to exercise his authority to take Peters to jail for trespass and suggested Peters consent to a pat down search. When officers asked Peters to lift his shirt to show he was unarmed, Peters only partially lifted his shirt. When the officers repeated their request, Peters stopped and turned around. The government argue that the officers’ interaction with Peters constituted a consensual encounter, but the Fourth Circuit concluded otherwise.

“[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.” Illinois v. Wardlow, 528 U.S. 119 (2000). The mere refusal to cooperate without more does not justify the need for detention or seizure.

Turning to whether the officers had reasonable suspicion to initiate a brief investigative stop, the government proffered eight factors created reasonable suspicion that Peters was engaged in trespass and was armed: (1) a confidential informant identified Peters as a person who sold crack cocaine from a specific address in Creighton Court; (2) the CI was previously reliable; (3) Petere’s last known address was not in Creighton Court; (4) Peters was present with Garrison, an individual the officers stated was barred from Creighton Court; (5) Peters was nearly in front of the building where the informant said Peters sold drugs; (6) Peters had a previous arrest for trespass; (7) three police alerts marked Peters as a gang member in 2011; and (8) the officer observed drug-trafficking in Creighton Court where he found drug dealing and armed violence was one of the residents’ chief complaints to the police.

The Fourth Circuit considered the eight factors, not in isolation, but in the wider context of the complete record. A full review of the record suggests that the Government’s eight factors reimagined the basis upon which the officer suspected that Peters was engaged in criminal activity.

Ultimately, the court addressed each of the government’s eight factors and concluded that they failed to give rise to reasonable suspicion. Finding that the officers did not act with reasonable suspicion when they seized Peters, the district court erred in denying Peters’ motion to suppress. Thus, the court reversed the district court’s denial, and remanded the case for further proceedings.

Tenth Circuit Reverses Denial of Motion to Suppress, Finds Inevitable Discovery Inapplicable:  Braxton

A Denver police officer monitoring a surveillance camera in a high-crime area saw Braxton exchange drugs for cash. Officers arrived on scene and arrested Braxton. The officer’s bodycam video of the arrest showed that when Braxton was handcuffed, he was wearing a backpack, which officers removed and placed on the sidewalk. During the officer’s arrest, Braxton’s girlfriend approached the officers and asked if she could retrieve his backpack. The officers refused. An officer picked up the backpack and the girlfriend again asked if she could take her backpack. Again, she was refused. The officers then placed the backpack on the hood of the patrol car and searched it. Inside, officers found a loaded gun with a pink handle.

Braxton was charged with possession of a weapon in furtherance of drug trafficking, possession of crack cocaine with intent to distribute, and felon in possession of a firearm. Braxton moved to suppress the gun arguing that the warrantless search of the backpack was not justified as a search incident to arrest. The government conceded that the search was not a valid search incident to arrest, but argued that the gun should not be suppressed under the inevitable discovery doctrine. The government argued that, had the officer not searched the backpack at the scene, he would have been obligated to take the backpack to the station to prevent theft and protect the community in case it contained dangerous items. Further, standard policy  required an inventory search that would have revealed the gun.

The district court agreed with the government and denied the motion to suppress. Braxton eventually pled guilty and was sentenced to 60 months imprisonment. Braxton appealed the suppression ruling to the Tenth Circuit.

The Tenth Circuit noted that exceptions to the warrant requirement include searches incident to arrest, searches and seizures justified by a noninvestigatory community-caretaking rationale, and searched conducted for administrative inventory purposes. However, it is the government’s burden to establish that an exception to the warrant requirement exists. Under the inevitable discovery doctrine, the exclusionary rule does not apply if the government can prove by a preponderance of evidence that the evidence would have inevitably been discovered by lawful means.

On appeal, Braxton argued that the government failed to meet its burden of showing that officers would have impounded the backpack as a matter of community caretaking. In assessing Braxton’s claim, the Tenth Circuit relied on a five-factor test set forth in Untied States v. Sanders, 796 F.3d 1241 (10th Cir. 2015) which involved impoundment of a vehicle and the inevitable discovery doctrine. The factors enumerated in Sanders are: (1) whether the vehicle is on public or private property; (2) if on private property whether the property owner has been consulted; (3) whether an alternative to impoundment exists; (4) whether the vehicle is implicated in a crime; and (5) whether the vehicle’s owner and/or driver have consented to impoundment.

The Tenth Circuit found four of these factors apply relatively straightforward to Braxton’s case. First, the arrest took place on public property, so the backpack was on public property. Second, the court found whether the owner of the property had been consulted was not relevant here. On the fourth and fifth Sanders factors, the government conceded that the backpack was not implicated in a crime and that Braxton did not consent to the impoundment. However, the parties disagreed on the third Sanders factor-the existence of an alternative to impoundment.

Reviewing the testimony of the suppression hearing, the court found that the officer provides scant explanation for why he would refuse the girlfriend’s request and not have inquired further into their relationship or ask Braxton about giving the backpack to her. Instead, the officer simply testified that it was “not common practice to be handing out personal property of other persons to other people.”

The Tenth Circuit concluded that the only factor that favored a reasonable community-caretaking rationale for the impoundment is that the arrest took place on public property. But the remaining factors cut significantly against the community-caretaking rationale. Accordingly, the Tenth Circuit concluded that the government failed to meet its burden of proving that, despite the alternative of giving the backpack to the girlfriend, it was inevitable that officers would have validly impounded the backpack.

Because a clear and promptly available alternative to impoundment existed here, the government could not show that it would have impounded the backpack under a reasonable, nonpretextual community-caretaking rationale. Thus, the inevitable discovery exception to the exclusionary rule did not apply, and the gun discovered during the illegal search of the backpack must be suppressed. The district court’s denial of the motion to suppress was reversed and the case remanded for further proceedings.