On December 21, 2018, the Eleventh Circuit Court of Appeals decided Lowe et al. v. Smith et al.[i], in which the court examined whether officers violated the Fourth Amendment when they entered a residence without a warrant in response to a 911 call that was placed by a child and misunderstood by the dispatcher. The facts of Lowe, taken directly from the case, are as follows:
The Lowes’ ten-year-old son N.L. called 911 and, according to an audio recording of the call, informed the dispatcher, “My dad is killing my brother.” On the phone, N.L. sounded hysterical, and the dispatcher mistook the word “brother” for “mother.” As a result, the officers dispatched to the Lowes’ home believed they were going there to investigate a possible homicide of N.L.’s mother, Monette Lowe. As it turned out, Ms. Lowe was away at work during this entire episode. N.L.’s older brother and sister had been inside the house during the 911 call, but they left before any of the police officers arrived, leaving only Mr. Lowe and N.L. in the house for what transpired after the officers arrived.
Cameras and microphones in the vehicles driven by Conyers Police Department Officers Charlene Smith, John Bruce, and Justin Lykins recorded the events described below. Although the camera footage does not reveal a visual picture of what happened at the Lowes’ door or inside their home, the recordings do include audio of the incident.
Officer Smith arrived on the scene first and found the house “relatively quiet.” She knocked on the Lowes’ door, stated that she was with the Conyers Police Department, and ordered Mr. Lowe to open the door. Mr. Lowe opened the door, not all the way, but enough to show his entire body. Officer Smith observed that he appeared sweaty.
Officer Smith commanded, “Have your wife come out.” Mr. Lowe informed her that his wife was at work. Officer Smith then ordered Mr. Lowe to step outside, but Mr. Lowe refused, stating, “Why? I didn’t call you, and I don’t have to. Tell me what you want.” Officer Smith answered that the police had “received a 911 call from this location.” She inquired, “Is there a young person here?”, at which point Mr. Lowe opened the door all the way and informed her, “I got kids.”
Through the doorway, Officer Smith was able to see N.L., who appeared uninjured. Officer Smith twice commanded Mr. Lowe, “I need you to step out,” but Mr. Lowe refused to do so and argued with Officer Smith, saying, “I don’t have to step out, because I didn’t call you, I own this house, and you can’t make me do that.”
Officer John Bruce arrived at the Lowes’ door about one minute after Officer Smith knocked on it. Three times, Officer Bruce ordered Mr. Lowe to “[c]ome outside.” After Mr. Lowe refused, Officer Bruce told him, “You’re out here fighting with your wife. You’re going to get Tased.” Mr. Lowe yelled in response, “My wife is at work, motherfuckers!” During much of his interaction with Officers Smith and Bruce leading up to this point, Mr. Lowe was, in his own words, “[a]ggravated,” and he spoke to the officers in a belligerent manner.
Mr. Lowe contends that he never made any move toward the officers. Yet immediately after he swore at them, a scuffle ensued in which Officer Bruce violently pushed the front door even farther open, elbowed Mr. Lowe in the side of the head, and grabbed his shoulders. Officer Smith reached under Officer Bruce’s arm and discharged her Taser once onto Mr. Lowe’s abdomen. The scuffle lasted about thirty seconds and ended with Officer Bruce handcuffing Mr. Lowe.
During the scuffle, Mr. Lowe yelled a couple of times, “I didn’t do anything!” N.L., who witnessed the entire scene from inside the house, also yelled, “He didn’t do anything!” Officer Bruce responded, “That’s what you get for pushing me,” and “That’s what you get for jumping up—bumping up to a police officer,” After handcuffing Mr. Lowe, Officer Bruce immediately searched the first floor of the house but found no other person.
Immediately after Mr. Lowe was handcuffed, Officer Paul Bernichon arrived on the scene and entered the Lowes’ home. For the next five minutes, Officers Smith, Bruce, and Bernichon attended to Mr. Lowe, while Officer Bruce argued with Mr. Lowe over what had just taken place. In addition, either Officer Bruce or Officer Bernichon radioed that there had been a Taser deployment, and Officer Bruce read Mr. Lowe his Miranda warnings.
About five minutes after the scuffle ended, Officer Justin Lykins, the supervising officer, arrived and also entered the home. Officer Bruce continued arguing with Mr. Lowe. About a minute later, Officers Bernichon and Lykins escorted Mr. Lowe, who was still handcuffed, out of the house to one of the police vehicles.
While Officers Bernichon and Lykins were outside with Mr. Lowe, Officer Bruce asked Officer Smith and N.L. about the 911 call and Officer Smith’s interaction with Mr. Lowe before he arrived. Officer Lykins reentered about a minute later and then spoke with Officers Smith and Bruce and N.L. for about four and half minutes about the circumstances of the 911 call and what had happened before he arrived. N.L. informed the officers that he had reported to the 911 dispatcher that “someone was being killed.” Officer Bruce replied, “But you told us that it was—he was beating up your mom.” Then N.L. explained, “Not my mom; you probably heard me wrong.”
Toward the end of the officers’ conversation with N.L., which was approximately 12 minutes after Mr. Lowe was Tased, Officer Lykins said, “Let me check upstairs to see if there’s any signs of violence or something upstairs.” Officer Lykins proceeded to check the upstairs of the house, where he found no one and no signs of violence.[ii]
The Lowe’s filed suit in federal district court and alleged three Fourth Amendment claims, as well as state tort law claims. The Fourth Amendment claims were as follows: (1) unlawful arrest; (2) excessive force, as related to force was used to effect an unlawful arrest; and (3) unlawful, warrantless search of the plaintiff’s residence. The district court granted qualified immunity to the officers on the federal claims and dismissed those claims. The court declined to exercise jurisdiction over the state claims. The plaintiffs then appealed the grant of qualified immunity to the Eleventh Circuit Court of Appeals. [Note: This article will not discuss the state law tort claims.]
The Eleventh Circuit Court of Appeals examined each of the plaintiff’s Fourth Amendment claims, noting that at this stage of the litigation, the court must view unresolved factual disputes by giving credit to the plaintiff’s version of events.
The first issue before the court of appeals was whether the officers violated the Fourth Amendment when they arrested Mr. Lowe for “Obstruction of Law Enforcement Officers” (see OCGA § 16-10-24), inside his residence, without a warrant. The court first discussed the constitutional law related to such in-home, warrantless arrests and stated
Under the Fourth Amendment, officers may make warrantless arrests if they have probable cause to believe that the person to be arrested has committed a crime. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). Even when the officer has probable cause to believe a person has committed a crime, however, warrantless arrests inside a home are “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). Nevertheless, an in-home warrantless arrest may still be reasonable under the Fourth Amendment if it comes within an exception to the warrant requirement. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006). One such exception is for “exigencies of the situation [that] make the needs of law enforcement so compelling that the warrantless [entry] is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (internal quotation marks omitted). More specifically, to invoke the exigent circumstances exception, officers must have “probable cause to believe that exigent circumstances exist.” Smith v. LePage, 834 F.3d 1285, 1293 (11th Cir. 2016).[iii] [emphasis added]
Thus, the court observed that (1) officers are allowed to make warrantless arrests if they have probable cause, (2) officers normally need a warrant to make arrests inside a person’s residence, but (3) there are exceptions the warrant requirement, such as exigent circumstances. Therefore, officers can make warrantless arrests inside a private residence when they have both probable cause to believe a crime was committed and probable cause to believe exigent circumstances exist. Additionally, the court noted that
[E]mergency situations involving endangerment to life fall squarely within the exigent circumstance’s exception. United States v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002).[iv] [emphasis added]
Therefore, in order for Lowe’s arrest to be lawful under the Fourth Amendment, the officers needed probable cause to believe that a crime was being committed and probable cause to believe that exigent circumstances were present enter the home without a warrant to effect the arrest.
The court then examined fact’s relevant to the issue. First, the Lowe refused three requests by officers to step outside his home so that officers could investigate a 911 call where officers were advised that a child stated his father was killing his mother. The Eleventh Circuit also noted that the Georgia “obstruction” statute makes it a crime to “knowingly and willfully obstruct or hinder any law enforcement officer . . . in the lawful discharge of his or her official duties.”[v] Based on the fact that his refusal to step outside was preventing the officers from checking on the mother’s well-being, the court stated that the officers had probable cause to arrest Lowe for “obstruction of a law enforcement officer.”
The court also examined whether the officers had probable cause to believe that exigent circumstances were present to effect this arrest in Lowe’s residence without a warrant. The court stated
The substance of the 911 call conveyed to Officers Smith and Bruce gave them “probable cause to believe that exigent circumstances exist[ed],” that they needed to enter the Lowes’ home immediately to ascertain Ms. Lowe’s safety, and that they could do so only if they arrested Mr. Lowe, who was obstructing their entry into the home.
Therefore, the Eleventh Circuit held that the officers had probable cause to arrest Lowe and probable cause to believe that exigent circumstances justified the warrantless arrest in Lowe’s residence.
Lowe argued that when he told the officers that his wife was at work, the officers were obligated to have a dispatcher attempt to telephone her to check her well-being. Thus, thus he argued that exigent circumstances did not exist because the officers did not diligently exhaust other, less intrusive options. The court refuted this argument with several applicable legal principles. Particularly, the court stated
Officers Smith and Bruce were responding to a 911 call about someone being killed, and the situation still presented “the need for a prompt assessment” of, at best, “hurried and incomplete” and “ambiguous information concerning potentially serious consequences”—a homicide. Holloway, 290 F.3d at 1339 (internal quotation marks omitted). The ambiguous information included uncertainty about Ms. Lowe’s safety, Mr. Lowe’s refusal to follow the officers’ orders to step outside, his sweaty appearance, and his belligerent and “[a]ggravated” demeanor. Doc. 81 at 125. Moreover, “[o]fficers do not need ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception.” Fisher, 558 U.S. at 49 (internal quotation marks omitted).[vi] [emphasis added]
Additionally, the court stated
[I]f law enforcement could not rely on information conveyed by . . . 911 callers, their ability to respond effectively to emergency situations would be significantly curtailed.” Holloway, 290 F.3d at 1339; see also Smith, 834 F.3d at 1293 (declining to impose duty to investigate further whether “circumstances were exigent before entering . . . because it would be contrary to the core purpose of the exigent circumstances exception,” i.e., “to allow swift police action during an emergency”). The “business of policemen . . . is to act, not to speculate or meditate on whether the report is correct.” Holloway, 290 F.3d at 1340 (internal quotation marks omitted). “The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger . . . the lives of others. Speed here was essential . . ..” Warden v. Hayden, 387 U.S. 294, 298-99 (1967). Just as officers need not seek out “ironclad” proof that an emergency really does exist when they receive a 911 call about a homicide in progress, Fisher, 558 U.S. at 49, they need not affirmatively seek out evidence to disprove that an emergency is ongoing.[vii] [emphasis added]
Therefore, the officers did not have to conduct a full investigation and develop “ironclad proof” that an emergency did, in fact, exist, prior to entering a residence in response to a 911 call about a homicide in progress.
Next, the court examined the allegation of excessive force. The court noted that the plaintiff’s allegation of excessive force was based on the premise that force used to effect an illegal arrest is excessive under the Fourth Amendment. However, the court stated
Under this Circuit’s law, . . . a claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim. Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000). The damages for an unlawful arrest include “damages suffered because of the use of force in effecting the arrest.” Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995).[viii] [emphasis added]
Thus, in the Eleventh Circuit, a valid claim for an unlawful arrest will include damages related to the force used in making the arrest.
The court also noted that a plaintiff may allege that a lawful arrest was effected by the use of excessive force. The court stated
Even if the initial stop or arrest was lawful, a plaintiff may still allege “a discrete excessive force claim” that the amount of force used to effect that stop or arrest was excessive.[ix] [emphasis added]
In Lowe’s complaint, they did not allege specific facts to show that the force used was excessive, beyond the allegation that force was used to make an unlawful arrest. They also explicitly stated that the they do not allege “excessive force per se.” Since the court of appeals held that the arrest was legal, they affirmed the grant of summary judgment to all defendant officers and dismissed this claim.
Lastly, the court examined whether the officer’s warrantless search of the Lowe’s residence violated the Fourth Amendment.
The court noted the legal principles applicable in this case and stated
The Supreme Court has long recognized threats to life as the sort of emergency that satisfies the exigent circumstances exception to the search warrant requirement. “[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” Mincey, 437 U.S. at 392.[x] [emphasis added]
The court then stated that based on the substance of the 911 call, as it was relayed to the officers, the officers had probable cause to believe there could be a person in the residence that was in need of immediate aid. Additionally, it was relevant that officers remained within the proper scope of the search, particularly where a person could be found. There was no allegation that officers searched compartments or items where a victim could not reasonably be located.
The plaintiffs also took issue with the search of the upstairs of the residence, which occurred approximately twelve minutes after the search of the downstairs. The court stated that there was still probable cause to search the upstairs for the victim since she was not located downstairs.
As such, the court of appeals affirmed the grant of summary judgment and qualified immunity to all defendant officers in this case.
[i] No. 18-10639 (11th Cir. Decided December 21, 2018 Unpublished)
[ii] Id. at 2-6 (internal citations omitted)
[iii] Id. at 9-10
[iv] Id. at 10-11
[v] Id at 10 (citing O.C.G.A. § 16-10-24(a))
[vi] Id. at 12-13
[vii] Id. at 14
[viii] Id. at 17
[x] Id. at 19