||ELEVENTH CIRCUIT HOLDS EXIGENT CIRCUMSTANCES EXIST TO SEARCH BURGLARIZED RESIDENCE

ELEVENTH CIRCUIT HOLDS EXIGENT CIRCUMSTANCES EXIST TO SEARCH BURGLARIZED RESIDENCE

On May 9, 2018, the Eleventh Circuit Court of Appeals decided Montanez v. Carvajal[i], in which the court examined whether it was reasonable under the Fourth Amendment to conduct a warrantless search of a residence that officers suspected had just been burglarized.   The relevant facts of Montanez are as follows:

On a springtime afternoon in 2011, Officer Todd Raible of the Volusia (Florida) County Sheriff’s Office was driving his unmarked patrol car through a neighborhood that had been experiencing a rash of daytime burglaries. As he drove, Raible, a property-crimes investigator who knew all about the recent uptick in theft, took note of a young man—later identified as William Rivera—who was standing on the sidewalk in front of the residence at 1127 West New York Avenue and who appeared to be looking around nervously while talking on a cell phone. Raible became suspicious of Rivera, who Raible said “seemed anxious” and “kind of hunched” as he paced up and down in front of the house. Raible’s suspicions deepened when, as he watched, Rivera walked down a side street toward the back of the dwelling.

As Raible observed Rivera approach the back door, he saw another young man—later identified as Troy Copeland—”huddling” nearby. Based on his experience, Raible was convinced that Copeland was positioning himself to act as a “lookout” while Rivera broke into the house. Given everything he had seen, Raible radioed for backup, describing the unfolding situation as a “burglary in progress.”

Driving his own patrol car, Officer Jorge Carvajal heard and responded to Raible’s request for backup. Raible and Carvajal met at a nearby gas station and quickly formulated a plan for approaching the suspects. After talking to Carvajal, Raible returned to the house, where Rivera and Copeland remained near the back door; Raible parked his car and exited with his gun drawn. Carvajal soon joined Raible and drew his weapon as well, and the two officers ordered Rivera and Copeland to the ground, where they placed them in handcuffs.

Once Rivera and Copeland were cuffed, Raible entered the home’s back door and stepped through a small vestibule to a second door, which led to the home’s interior and was slightly ajar. Without crossing the threshold, Raible leaned through the second door and shouted, “Sheriff’s office, come out if anybody’s in there, sheriff’s office.” Hearing no answer after about 10 seconds, Raible went back outside.

Raible and Carvajal then searched Rivera and Copeland and discovered that Rivera had two kitchen knives in his pants pockets. The knives were significant, Raible thought, because near the handle on the house’s back door he also observed pry marks, which he believed to be both fresh and consistent with having been made by knives. The officers asked Rivera and Copeland for identification; neither ID listed 1127 West New York Avenue as a home address. Given the indications that the back door had recently been pried open using tools like the knives found on Rivera and that each of the suspects’ IDs listed another home address, Raible and Carvajal concluded that they had interrupted an ongoing burglary. At that point, the officers formally arrested Rivera and Copeland.

Additional officers soon arrived on the scene. Once they gathered in sufficient number, Carvajal entered the home’s main structure along with Officers Kyle Bainbridge, Edward Hart, and Julio Rodriguez to check (as each of the officers explained) “for additional perpetrators or potential victims.” This second entry—which was the first into the home’s interior and which the officers described as a “sweep”—lasted about four minutes. Importantly for our purposes, during the second entry, the officers saw in plain view what they believed to be marijuana and associated drug paraphernalia.

Almost immediately thereafter, Officers Carvajal, Bainbridge, and Hart took their supervisor, Lieutenant Brian Henderson, into the house to show him the marijuana and paraphernalia. This third entry lasted about two minutes. After viewing the suspected contraband, Henderson called the West Volusia Narcotics Task Force to determine whether a search warrant should be obtained for the remainder of the dwelling. Henderson, Carvajal, Bainbridge, and Hart then re-entered the house once again—for a fourth time—staying for a little more than two minutes.

Half an hour later, Cecelia Gregory, Montanez’s mother and co-owner of the house, showed up and (fifth entry) was escorted inside by Henderson. An hour after that, task-force investigators David Clay and David McNamara arrived and (sixth) went into the home with Raible to view the marijuana and drug paraphernalia.

Based on the contraband shown to him during the sixth entry, McNamara swore out an affidavit in support of a search warrant, which an assistant state attorney approved and a circuit court judge then signed. Warrant in hand, the officers subsequently conducted a full search of the house, which yielded $18,500 in U.S. currency as well as miscellaneous drugs and drug paraphernalia.

As it turns out, the authorities never filed any charges against Rivera, Copeland, or Montanez pertaining to the drugs or the associated paraphernalia—apparently because they couldn’t figure out whose they were. It was later determined, as well, that the money lawfully belonged to Montanez.[ii]

Rivera, Copeland and Montanez, the homeowner, sued the officers for a variety of Fourth Amendment and state law torts.  The district court dismissed all claims in favor of the defendant officers except Montanez’s unlawful home entry and search claim.  The officers appealed the denial of qualified immunity on the home entry and search claims to the Eleventh Circuit Court of Appeals.

There were essentially three issues on appeal.  The first issue was whether the first two entries were reasonable under the Fourth Amendment, based upon the exigent circumstance exception to the warrant requirement.  The second issue is whether the officers had probable cause to believe that Rivera and Copeland were committing a burglary.  The third issue is whether the third, fourth, fifth, and sixth warrantless entries were reasonable under the Fourth Amendment.

When a court examines whether qualified immunity is appropriate, they must decide (1) whether a constitutional right was violated, and (2) if so, whether the right was clearly established such that a reasonable officer in the same situation would have had fair warning that his conduct was unlawful.

The Eleventh Circuit then set out to examine the first issue, particularly whether the initial warrantless entry into the vestibule and the second, warrantless four- minute search of the residence looking only in places that could conceal a suspect or victim was reasonable under the Fourth Amendment.

As the court noted, generally, warrantless entries and searches of residences are presumed unreasonable; however, there are a several exceptions to the warrant requirement.  The court stated

One such exception”—at issue here—”is that the police may enter a private premises and conduct a search if ‘exigent circumstances’ mandate immediate action.” United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002). In such cases, a warrantless search “may be legal when there is compelling need for official action and no time to secure a warrant”—or, phrased a bit differently, when “resort to a magistrate for a search warrant is not feasible or advisable.”[iii] [emphasis added]

The court then examined an Eleventh Circuit case that is relevant to this case.  In the United States v. $291,828.00 in U.S. Currency[iv], a homeowner who was out of town, received a call from his residential burglar alarm company that his alarm had activated.  The homeowner requested that the alarm company send the police to investigate.  Officers arrived and conducted two warrantless sweeps of the residence looking only in places that a suspect could be hiding.  During the second sweep, officers observed contraband in plain view.  The officers seized the contraband.  The homeowner later filed a motion to suppress and argued that the officers conducted an unlawful warrantless search.   The Eleventh Circuit upheld the search as reasonable under the Fourth Amendment pursuant to the “exigent circumstances” exception to the warrant requirement.

The court noted that the same principle applied in Montanez’s case.  Specifically, the court stated

[W]e hold that if police have probable cause to suspect a residential burglary—whether they believe the crime is currently afoot or has recently concluded—they may, without further justification, conduct a brief warrantless search of the home to look for suspects and potential victims.[v] [emphasis added]

Montanez argued that the exigent circumstances faded after the first entry into the vestibule, and therefore the second entry was unreasonable.  However, the court explained

[W]hen Officers Raible and Carvajal apprehended Rivera and Copeland just outside Montanez’s home’s back door, they had no way of ascertaining whether they had just prevented a burglary that was about to happen, interrupted an ongoing burglary, or happened upon a burglary that had just concluded. The Fourth Amendment didn’t require them to know the unknowable on pain of suppression—let alone personal liability. Rather, the Constitution gave them breathing space to do the best they could with the information they had.[vi]

The court further explained that, at the scene of a burglary, whether in-progress or recently-concluded, the police have a compelling need to search for additional suspects and possible victims, noting that burglars can, at times, be violent.

Thus, as noted in the holding above, if the police had probable cause to suspect a burglary, they may conduct a warrantless search of the residence for suspects and victims.  As such, the court next set out to examine whether the officers had probable cause to suspect a burglary in Montanez’s case.  The court articulated the relevant facts as follows:

Just before the incident, Officer Raible had been driving through an area that he knew was experiencing a spate of daytime burglaries. He observed Rivera walking around—seemingly nervously—while talking on a cell phone in front of a house whose driveway had no cars in it. He then watched Rivera take an unusual path around the house to the back door, where he also observed Copeland move into what appeared to be a lookout position. After detaining and searching the men, Raible found two kitchen knives in Rivera’s pockets, and observed what seemed to be fresh—and matching—pry marks near the handle of the home’s back door. Finally, Rivera’s and Copeland’s IDs listed addresses different from the house’s.

The court then held that based on the above facts, the officers had a reasonable belief that they had interrupted a burglary; therefore, probable cause was present.  Since they had probable cause to suspect a burglary at Montanez’s residence, it was reasonable for the officers to conduct a warrantless entry and search, limited in scope to suspects and victims.

Therefore, the officers first two warrantless entries into Montanez’s residence did not violate the Fourth Amendment.

The court then set out to decide the third issue in this case, particularly whether the subsequent (third through sixth) warrantless entries were reasonable under the Fourth Amendment.  The court stated

Our binding precedent makes clear that those entries were justified even though the exigency that underlay the first two searches had almost surely passed. As the former Fifth Circuit noted, the Fourth Amendment exists to “protect[] the citizen against invasion of privacy.United States v. Brand, 556 F.2d 1312, 1317 (5th Cir. 1977). “Once that interest is invaded legally by an official of the State, the citizen has lost his reasonable expectation of privacy to the extent of the invasion.” Id. Accordingly, without offending the Fourth Amendment, “additional investigators or officials may … enter a citizen’s property after one official has already intruded legally.” Id.[vii] [emphasis added]

Thus, as long as the officer that entered the residence after the exigency had passed do not exceed the scope of the search that had already occurred, the officers do not violate the Fourth Amendment.  Since the contraband was observed on the second entry, which was supported by exigent circumstance, and since there is no allegation of additional searches beyond the scope of the search that took place during that second entry, these subsequent warrantless entries did not violate the Fourth Amendment.

Therefore, the Eleventh Circuit reversed the denial of summary judgment for the officers.

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CITATIONS:

[i] No. 16-17639 (11th Cir. Decided May 9, 2018)

[ii] Id. at 2-6

[iii] Id. at 10

[iv] 536 F.3d 1234 (11th Cir. 2008)

[v] Id. at 10-11

[vi] Id. at 13

[vii] Id. at 18

By |2018-10-30T20:16:24+00:00October 24th, 2018|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.