No Exigency Justified Border Patrol Agents' Warrantless Entry Into House

United States v. Troop, No. 06-40922 (5th Cir. Jan. 15, 2008) (Jolly, Higginbotham, Prado)

The Fourth Amendment has some life left in it yet, even on the frontera.

Several Border Patrol agents were tracking some suspected illegal immigrants through the South Texas brush one late July night. According to one of the agents, the temparature was in the 90's that evening, and after awhile the appearance of the tracks suggested that the aliens were becoming fatigued.

After four or five miles, the tracks led the agents to Troop's house. The agents knocked and announced their presence, but no one would answer the door. One of the agents shined a flashlight through an open window and saw two men apparently sleeping on a bed. There was disputed testimony over whether the agent reached through an open window and shook one of the men's feet. After getting no response to their knocking, shouting, and (possible) poking, two agents climbed through the window, ostensibly to see if the men needed medical assistance. They then let the other agents into the house. Troop and several illegal aliens were arrested.

Troop was charged with conspiring to transport an illegal alien, in violation of 8 U.S.C. § 1324. The district court denied his motion to suppress the fruits of the agents' warrantless entry into his home (i.e., the aliens), "reasoning that the possibility that the suspected aliens were in need of medical attention created exigent circumstances sufficient to justify the warrantless entry into Troop's house." Troop appealed, following his conviction at a stipulated bench trial.

The Government argued that "exigent circumstances existed because the suspected aliens might have needed immediate medical attention[,]" pointing to "the high temperature that night, the evidence the suspected aliens were fatigued, and the failure of anyone inside Troop's house to respond when the agents knocked on the door and window."

The court of appeals disagreed. It held that the aliens' apparent fatigue after walking a long way in ninety-degree heat did not alone constitute exigent circumstances, pointing out the lack of other objective evidence of distress, "such as loss of blood, signs of physical illness, or evidence that an individual had to be carried or dragged[,]" or "any evidence of what type of medical distress is typically produced by a four-mile walk in the heat at night, which might have indicated that it was probable that the suspected aliens needed aid." The court trenchantly observed that "[t]o hold otherwise would permit warrantless entries into homes in which an occupant had recently taken a long walk in the Texas summer and become tired as a result. The Fourth Amendment requires more."

As for the knocking, the court concluded that given the lack of "objective evidence of physical distress, the failure of anyone to respond to the agents' knocking . . . also becomes insufficient to create exigent circumstances," finding it "hardly surprising that the aliens chose not to answer the door, given that Border Patrol agents were waiting to arrest them on the other side."

The Government also argued that the agents were attempting a "knock and talk" of the sort permitted by Fifth Circuit case law. But the court responded that if the K&T strategy fails, then agents should retreat to conduct further surveillance or to get a warrant, not simply barge into the house.

A final note: although this decision is unquestionably correct, even on the most favorable and deferential view of the agents' testimony, it probably didn't help the Government that the proffered exigent circumstances had a whiff of the post hoc:

Although we are reluctant to second guess the actions of law enforcement, it is telling that in this case Agent Lira was the only agent to actually testify that he was concerned for the well-being of the suspected aliens—and that concern did not arise until Agent Lira reached in a window and grabbed a suspected alien, which was after the search had already exceeded the bounds of the Fourth Amendment. None of the other agents ever stated that they had a concern that the suspected aliens might need immediate aid. While the subjective motivations of the agents are not controlling, see Brigham City, 126 S. Ct. at 1948, it does give us pause that none of these men, who are trained to locate and aid aliens in need of help, appear to have believed that these aliens were in need of assistance based on the evidence of fatigue and failure to respond to knocks at the front and back doors.