©2011 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) United States v. Butler, (3rd Cir. Decided December 28, 2010 Unpub.)
On December 28, 2010, the Third Circuit Court of Appeals decided the United States v. Butler [i], which serves as an excellent review of the “exigent circumstance” exception to the search warrant requirement. The facts of Bulter are as follows:
After receiving a report that drug trafficking activity was taking place at an apartment building located at 941 Hamilton Street in Allentown, Pennsylvania, undercover Allentown Police Officers Christopher Cruz, Michael Faulkner, and Pete McAfee went to that address. Once on location, Officer Cruz spoke with the complainant, who identified Apartment #304 as the likely locus of the drug dealing. She also cautioned that one of the occupants was armed and often kept a handgun in his waistband. Cruz then called for backup, and Allentown Police Officers William Reinik, Michael Mancini, and Kyle Hough responded to Cruz’s request. The officers placed Apartment #304 under surveillance for approximately fifteen minutes, but their efforts proved fruitless, as they did not observe anyone entering or departing the apartment.
The officers next decided to employ the so-called “knock and talk” technique to investigate further. The officers split into two groups. The first group, which consisted of Officers Cruz, Reinik, and Mancini, proceeded to the front door of Apartment #304. The remaining officers covered a separate door which led to a different part of the apartment. Officers Reinik and Mancini flanked either side of the front door, while Officer Cruz positioned himself directly in front of the front door.
Officer Cruz knocked on the front door. When a voice from inside asked who was there, Officer Cruz responded, “Chris.” A man later identified as Butler opened the door slightly, holding a pistol at hip level in his left hand, aimed at Officer Cruz. Seeing the handgun pointed at him, Officer Cruz yelled, “Go, go, go, gun,” and directed Officer Mancini to enter the apartment. The three officers simultaneously identified themselves as police, and Butler attempted to slam the door.
Officer Reinik stuck his foot in the doorway, preventing Butler from slamming the door. Butler fled into the apartment, and Officer Cruz instructed Officer Mancini and the other officers to enter the apartment. The officers pursued Butler into a bedroom, where they found him lying under a blanket on a makeshift mattress on the floor. Butler’s co-defendant, Bill Murray, was also in the bedroom. Police found Murray using a razor to cut a large white rock that was later determined to be crack cocaine. Five crack pipes were present on the table next to Murray. Police secured both men and searched the room for weapons. When Butler failed to respond to the officers’ inquiries about where the gun he had pointed at Cruz was located, Officer Hough picked up the blanket that had been covering Butler, and a loaded nine-millimeter pistol fell to the floor.
A search of Butler led to the discovery of $672 in cash, and thirty-seven ziploc bags, each containing crack cocaine. Murray and Butler both waived their Miranda rights, and Murray (the lessee) consented to a search of the apartment, which turned up further drug-related paraphernalia…[ii] [internal citations omitted]
Butler was charged with several federal drug and weapons violations. He filed a motion to suppress in district court which was denied. He then appealed to the Third Circuit Court of Appeals and argued that the officers violated the Fourth Amendment when they entered his apartment without consent and without a warrant.
The court of appeals first noted several important rules relevant to this case. These rules are as follows:
When people have a reasonable expectation of privacy in their persons or effects, all searches and seizures must be supported by a warrant, unless they fall into one of the exceptions to that requirement. [iii]
One such exception to the warrant requirement is when exigent circumstances exist. Examples of exigent circumstances include, but are not limited to, the imminent loss or destruction of evidence, hot pursuit of a fleeing felon, and the risk of danger to police officers or others. [iv]
Police cannot avail themselves of the exigent circumstances exception to the warrant requirement if they deliberately create the exigent circumstances. Exigent circumstances, however, do not meet Fourth Amendment standards if the government deliberately creates them. [v] [internal quotations omitted]
In assessing whether the police impermissibly create exigent circumstances, we focus on the reasonableness and propriety of the officers’ actions and investigative tactics leading up to the warrantless entry.[vi] [internal quotations omitted]
Not every interaction police initiate with citizens implicates the Fourth Amendment. For instance, the Fourth Amendment does not proscribe police from seeking citizens’ voluntary assistance in discovering or investigating crime. [vii]
Officers may seek citizens’ consent in investigating crimes, and that officers need not always announce their true identities when they do so…consistent with the Fourth Amendment, police may employ the so-called “knock and talk” technique as a tool to investigate criminal activity. [viii]
“Knock and talk” investigations normally do not raise Fourth Amendment concerns, we have held, because when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. [ix]
In light of the above rules, the Third Circuit set out to decide whether the officers had exigent circumstances to enter the motel room without a warrant, when one officer observed Butler pointing a gun at the officers while standing in the apartment doorway.
First, Butler attempted to argue the fact that one officer stated that he did not see him holding a gun. However, the court noted (1) that that same officer stated that he did not see Butlers hands during the encounter (obviously explaining why he did not see a gun), and (2) the trial court credited the statement of the officer that observed the gun. The court of appeals is obligated to follow the factual finding of the trial court unless there is a clear error in a finding of fact. As such, the court of appeals followed the ruling of the trial (district) court that Butler did point a gun at the officers when he opened his motel room door.
Second, Butler argued that the officers were not entitled to rely on the exigent circumstance exception to the warrant requirement because they impermissibly created or manufactured the circumstances on which they based their entry. Butler based this argument on the United States v. Coles [x]. Because it is important to the analysis of Butler’s case, the Third Circuit then reviewed the facts of Coles which it stated as follows:
Terrence Coles was staying in a hotel room in Philadelphia for an extended period of time. The hotel manager, David Bradley, had unsuccessfully sought to locate Coles to discuss payment for the room, and Bradley let himself into Coles’s room to see if the room was still occupied. Upon doing so, Bradley observed what he believed to be drugs and drug-related paraphernalia in the room, and immediately contacted the police. The police entered Coles’s room without a warrant, an entry the government later conceded was illegal. Thereafter, the police decided to put Coles’s room under covert surveillance. Apparently frustrated at the progress of their stakeout, authorities decided to try to access Coles’s room. Police first attempted to gain access by subterfuge, knocking on the door and announcing “room service.” A voice from inside responded that they had not ordered anything, and refused to open the door. Police again knocked, this time stating that they were from maintenance and were responding to a leak. The occupants refused entry a second time, responding that there was no leak. Police abandoned subterfuge on their third attempt. Knocking forcefully on the door, the officers identified themselves as police, telling the occupants to “‘open the door, this is the police.'” The majority described what occurred next:
At this critical juncture, the officers heard the sounds of rustling and running footsteps. Sgt. Josey attempted to open the door using an electronic passkey provided by [the hotel manager], 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.
Coles eventually opened the door for the officers. Upon entering the room, the police discovered, among other things, several containers of cocaine base “crack,” multiple bags containing cocaine, 25 vials of “crack” cocaine, approximately $2,000 in cash, and a firearm inside of Coles’s open carrying bag . . . . Coles [was] then arrested. xi] [internal citations omitted]
The Third Circuit, in Coles, held
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. [xii]
After reviewing Coles, the Third Circuit found it distinguishable from Butler. First, the police offices in Butler were less certain that criminal activity was taking place than the officers in Coles. Second, in Coles the officers identified themselves as police and ordered Coles to open the door, whereas, in Butler, the officers did not identify themselves as police and Butler opened the door voluntarily. The Third Circuit then stated
It is undisputed that Butler opened the door voluntarily. Critically, when he did so, he pointed a gun at Officer Cruz. At that point, and only at that point, exigent circumstances arose, created by Butler, as Officer Cruz had reason to believe that his life and the lives of his fellow officers were in danger. Officer Cruz relatedly had probable cause to believe that Butler had committed aggravated assault by pointing a pistol at him, and could therefore lawfully pursue a fleeing Butler into the apartment to arrest him. For these reasons, exigent circumstances justified the officers’ entry into Apartment #304 to secure Butler’s arrest. [xiii]
In finding that the officers had exigent circumstances for warrantless entry in Butler, the court also refused to hold, as Butler had argued, that officers with probable cause to obtain a search warrant must do so rather than attempting to conduct a voluntary “knock and talk.” The court reasoned that this would remove a valuable investigative tool from officers, and it would force officer to make judgments typically reserved for magistrates. As such, the court refused to hold that the officers were required to obtain a search warrant rather than attempt a knock and talk simply because they may have probable cause.
Butler also argued that Officer Cruz’s use of subterfuge, particularly stating it was “Chris” when asked by Butler who was at the door. The court noted
It is well-established that police do not necessarily have to identify themselves as police when they investigate criminal activity.[xiv] [internal citations omitted]
In Butler, Officer Cruz testified that identifying himself as a law enforcement officers would have deterred the occupants from opening the door and talking to him. The court, in light of the rule above, held that the officer was being prudent and reasonable in his use of knock and talk technique. As such, Butler’s argument failed.
After having resolved the discussed issues in favor of the government, the Third Circuit affirmed the denial of the motion to suppress.
NOTE: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
SEE RELATED ARTICLES:
Reasonable expectation of privacy in information provided to hotel/motel (Legal Question 2007)
Dismissed Case Based on Unlawful Entry (Legal Question 2007)
Warrantless In-Home Arrests and Threshold Arrests (Legal Update 2010)
Underage Possession of Alcohol and Warrantless Home Entry (Legal Update 2010)
When Imminent Destruction of Evidence Authorizes Warrantless Home Entry (Legal Update 2008)
Consent, Exigent Circumstances, and Warrantless Home Entry (Legal Update 2008)
11th Circuit Upholds Warrantless Entry Into Barn (Legal Update 2011)
9th Circuit Upholds Warrantless Search of Motor Home (Legal Update 2010)
[i] No. 05-2100, 2010 U.S. App. LEXIS 2638 (3rd Cir. Decided December 28, 2010 Unpub.)
[ii] Id. at 2-4
[iii] Id. at 7 (citing United States v. Hartwell, 436 F.3d 174, 177 (3d Cir. 2006) (citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993)
[iv] Id. at 8 (see Steagald v. United States, 451 U.S. 204, 211-12, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981); see also United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006); Estate of Smith v. Marasco, 318 F.3d 497, 518 (3d Cir. 2001)
[v] Id. at 9 (quoting United States v. Acosta, 965 F.2d 1248, 1254 (3d Cir. 1992))
[vi] Id. (quoting United States v. Coles, 437 F.3d 361, 366 (3rd Cir. 2006))
[viii] Id. at 11
[ix] Id. at 11-12 (citing Estate of Smith v. Marasco, 318 F.3d 497, 519 (quoting Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment § 2.3(f) (3d ed. & Supp. 2003); see also United States v. Chambers, 395 F.3d 563, 568 n.2 (6th Cir. 2005))
[x] 437 F.3d 361, 366 (3rd Cir. 2006)
[xi] Id. at 18-19 (citing Coles, 437 F.3d at 363)
[xii] Id. at 19-20 (citing Coles, 437 F.3d at 371)
[xii] Id. at 21
[xiv] Id. at 27