On September 23, 2022, the Eleventh Circuit Court of Appeals decided the United States v. Grushko[i], which serves as an excellent review of the law related to home entry under the authority of an arrest warrant.  The relevant facts of Grushko are as follows:

In late 2017, Target’s fraud prevention team met with a United States Secret Service agent, Logan Workman, to brief the government about a fraud scheme that was directed at Target’s South Florida stores. Target investigators explained the workings of the scheme to Agent Workman, detailing how a group of conspirators had been using stolen credit-card information, fake drivers’ licenses, and a system of purchases and returns in order to fraudulently obtain high-end electronics from Target. The investigators also gave Workman surveillance footage that captured the license plate number of a vehicle the suspects had used to commit the fraud. Agent Workman traced the license plate number to Sixt Rental Car. A fraud investigator at Sixt gave Workman documentation showing that Igor Grushko had rented the vehicle in question and had supplied Sixt with his home address. The agent ran a drivers’ license check and confirmed the address as Igor’s. He further learned that Denis Grushko lived at the same home address as Igor and that Vozniuk lived next door.

While Workman awaited the suspects’ indictment, he conducted periodic surveillance of their neighboring homes. He observed and took photographs of “some person” outside of the Grushkos’ house, but he could not determine “with [ ] certainty” if “that was Igor Grushko, Denis Grushko, or Vadym Vozniuk, or another roommate that could have been possibly there as well.” In November 2018, a federal grand jury sitting in the Southern District of Florida returned a three-count indictment against the Grushkos and Vozniuk, charging all three men with conspiring to commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2) (Count 1), and charging Igor and Vozniuk with using unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(2) (respectively, Counts 2 and 3).

After the indictment was returned, the district court issued arrest warrants for the Grushkos and Vozniuk. In preparation for the execution of the warrants, Agent Workman created an operational plan that specified the team of agents chosen for the operation, the targets’ biographical information, and photographs of the targets. For Igor, Workman attached a photograph obtained from Igor’s Florida driver’s license records — a source the agents “always use” for their operational plans because a driver’s license photograph best depicts a suspect’s facial features. For Denis, Agent Workman attached two photos, one from social media and the other from Target’s surveillance footage, because Denis did not have an available Florida driver’s license photograph.

At 5:30 a.m. on the day of the arrest, Workman met with the arrest team — none of whom had been involved in Workman’s prior investigation into the scheme — to distribute the operational plan and “go over photographs” of the targets. Two agents were then sent to conduct “presurveillance” at the Grushkos’ home, in part to ensure that, if the Grushkos were to leave, the agents could follow and arrest them. Upon arrival, the agents reported that “two unknown males” were outside the residence smoking cigarettes. They could not positively identify either man.

At around 6:00 a.m., the remainder of the arrest team headed over to the residence and, upon arrival, “confronted the two unknown males out front.” As the team approached the men, they announced, “Police. Police. Let me see your hands. Police. Get on the ground.” The team detained the men and “asked over and over again what their names were,” but the men refused to comply and instead laughed and asked for a lawyer. According to the defendants, the agents then patted them down, removed their wallets and cell phones, and placed the items on the curb. When the agents demanded the code to the padlocked door of the house, the men replied that they did not recall the passcode.

Although it turns out the men were, in fact, the Grushkos, Agent Workman later explained that he was not “a hundred percent certain” of their identities at the time because he had never seen either Igor or Denis in person. As for Igor, specifically, Workman noted that his appearance differed from his driver’s license, “[b]ecause the hair on Igor Grushko was a lot longer” on the day of his arrest.

After the unknown men refused to cooperate and the arrest team was unable to positively  identify them, the agents knocked on the padlocked front door and announced their presence. Agent Workman testified that the agents heard “voices and noise” coming from inside the house, but no one opened the door. Suspecting that the Grushkos or possibly Vozniuk may be inside, the agents pried the door open to gain entry into the home. “[A]t th[at] point,” the team still had not located all of the targets so the agents conducted a protective sweep. During the sweep, they discovered in plain view in a bedroom credit-card skimming devices and other “access device making equipment.” The agents secured the residence and later obtained a search warrant based in part on the items observed in plain view during the protective sweep.

During the search that followed, the agents seized a wide variety of evidence, leading to additional charges in a nine-count superseding indictment. The new charges against Denis and Igor included possession of fifteen or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count 4); possession of device-making equipment, in violation of 18 U.S.C. § 1029(a)(4) (Count 5); production of a false identification document, in violation of 18 U.S.C. § 1028(a)(1) (Count 6); and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 7-9).[ii]

The Grushko’s filed a motion to suppress the evidence obtained from the search of their residence. This was denied by the district court.  They were convicted by a jury and subsequently appealed to the Eleventh Circuit Court of Appeals.

One of the issues on appeal was whether the officers violated the Fourth Amendment when they entered the Grushko’s residence after they detained them outside the residence.

The court first examined the legal principles that related to this issue.  The relevant legal principles were as follows:

[U]nder our case law, law enforcement officers may enter a residence to execute an arrest warrant for a resident of the premises if the totality of the facts and circumstances within the officers’ knowledge yielded a reasonable belief that: (1) the location to be searched is the suspect’s dwelling; and (2) the suspect is within the residence. United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995).  (see also Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)).  In other words, the officers need not be “absolutely certain” that a suspect is at home before entering to execute an arrest warrant. Id. at 1538.

When evaluating whether the officers’ beliefs are reasonable, we are guided by “common sense factors.” United States v. Bervaldi, 226 F.3d 1256, 1263 (11th Cir. 2000). The officers may draw reasonable inferences and presumptions based on the time of day or observations at the scene, and these presumptions can be rebutted only by evidence to the contrary. See Magluta, 44 F.3d at 1535-36. “If officers have made such presumptions and have a reasonable belief that a suspect is present somewhere on the premises, they may search the entire premises of a residence, until the suspect is found.” United States v. Williams, 871 F.3d 1197, 1201 (11th Cir. 2017). Further, “if the initial entry into the suspect’s residence is lawful, the officers are permitted to seize any contraband in plain view within the residence.” Id.[iii]

The court of appeals then noted that they cannot overturn the trial court’s factual and credibility determinations made a motion to suppress unless they are based upon “exceedingly improbable testimony.”  The court then set out to review the record and evidence in the case.

The Grushko’s argued that that since they were arrested outside their residence, the agents were not allowed, under Payton and other precedent, to enter the residence under the authority of the arrest warrants.  As such, the entry violated the Fourth Amendment and the items seen in plain view, as well as items that were seized pursuant to the subsequent search warrant, must be suppressed.

The court of appeals then examined if the district court erred when they determined that the entry into the premises under the arrest warrant was reasonable.  First, the court of appeals noted that, when the agents approached the residence, they had a reasonable belief that Igor Grushko was in the residence, as it was 6:00 a.m., and they had been conducting pre-surveillance of the residence to watch for person’s leaving early.  Second, the agents encountered two unidentified men standing by the entry door, smoking cigarettes.  The agents detained the two men in handcuffs and asked the men to identify themselves.  The men refused to identify themselves.  Third, the agents went to the door of the residence and knocked and heard “voices and noise” coming from inside.  The agents then forced entry to the house when nobody came to the door.  They searched the house for the Grushko’s and only one woman was located inside.  During the search for the Grushko’s they saw, in plain view, credit card skimming equipment and other equipment, which formed the basis for a subsequent search warrant.

The Grushko’s maintained that since they were arrested outside, the agents were not authorized to enter the home and search it for them.  The agents countered that they were not certain they had detained the Grushko’s because they would not identify themselves to the agents.

First, the Grushko’s argued that the agents should have searched their wallets for identification.  However, Agent Workman testified that he did not recognize the men to be the Grushko’s and, as such, they were just detained, not arrested.  Since they were only being detained, pursuant to reasonable suspicion, the agents could not lawfully search their wallets incident to arrest.  The court of appeals noted

[T]hat removal of a wallet and other bulging items from a suspect’s person, which were “readily identifiable by touch as non-weapons,” exceeded the limits of pat-down searches authorized by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).[iv]

As Agent Workman testified, the men were at the doorway the agents were going to enter.  They were detained to make the scene safe for entry, and as part of the investigation as to whether they were the subjects of the warrants, however, when the men refused to identify themselves, the agents proceeded with executing the warrant.

Second, the Grushko’s argued that they should have been recognizable based on their driver’s license photos and the surveillance video from Target.  However, the court of appeals noted that they looked different in hairstyle and facial hair, from the photos and video, and since the agent had never met either Grushko in person, it was not unreasonable that they were not immediately recognized.

Third, the Grushko’s argued that because only one woman was located inside the residence, the agent’s testimony that they heard “voices” was not credible and should not have been credited by the district court.  The court of appeals stated that the woman may have been talking on a phone or the agents may have heard a television.  The fact that there was only one person inside is not sufficient to determine that the agent’s testimony was not credible.

Fourth, the Grushko’s argued that the agents entered their residence after they were detained only to search for evidence.  The court of appeals noted that the agents did not seize any evidence when they entered the home.  While they did see evidence in plain view, they did not seize it.  They obtained a search warrant to return and seize the evidence and search for further evidence.  Thus, the district court’s determination that the initial entry was not for the purpose of searching for evidence was not clearly erroneous.

Thus, because the men that were initially detained outside the residence were not identified as the subjects of the arrest warrants due to different appearance from their photos, their own refusal to identify themselves, the voices heard inside and the reasonable inference that Igor would be present at 6:00 a.m., it was not unreasonable for the agents to enter the residence to continue their search for the Grushko’s.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 20-10438 (11th Cir. Decided September 23, 2022)

[ii] Id. at 3-8

[iii] Id. at 9-10 (emphasis added)

[iv] Id. at 14 (citing United States v. Campa, 234 F.3d 733, 738 (11th Cir. 2000))(emphasis added)

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