Thursday, February 15, 2007

Warrantless Entry of Home Unreasonable Because Agents Were Responsible for Creating Exigent Circumstances

United States v. Gomez-Moreno, No. 05-20921 (5th Cir. Feb. 12, 2007) (Jolly, Higginbotham, Dennis)

This is the story of a "knock and talk" that escalated, as the court put it, into a "knock down and search." You might even say it's less knock-and-talk than it is shock-and-awe.

The mise en scène: a "residence consist[ing] of two buildings: a main house in the front (the 'front house') and a second, smaller house in the back that looked like a garage but had been converted into living quarters (the 'back house')." An ICE agent set up a stakeout on the residence after receiving an anonymous tip that it was an illegal alien stash house. Ultimately, a group of ten to twelve ICE agents and police officers, accompanied by a helicopter, "decided to approach the residence to secure the exits to the front and back houses and to conduct a 'knock and talk' to ask if any illegal aliens were present."

The agents and officers, who were all identified as "Police" or "Department of Homeland Security," split into two groups. One group knocked on the front door and got no response, but they could hear people moving around inside. The officers tried to open the door, but it was locked. One officer heard a "commotion" in the backyard and headed that way.

At the same time, the second group "knocked on the door to the back house, announcing 'Police! Police! Open the door.'" (Perhaps that was the "commotion" the officer at the front house heard?) As at the front house, no one answered. One officer saw "a lot of people" through a window. The lights went out, and officers thought they heard people trying to barricade the door from the inside.

Just then a man walked out of the front house into the backyard, saw the officers, and turned around and ran back inside. The officers "drew their weapons and followed the man into the front house to protect the officers and any illegal aliens from any potential armed smugglers. They quickly secured the front house, bringing all twelve occupants out to the backyard. With their weapons drawn, the officers ordered everyone on the ground. . . . At the officers’ request, the helicopter shined its search light on the backyard to light up the area."

Gomez-Moreno fessed up to being the owner, and, after being Mirandized, offered to get the people in the back house to open the door, which they did. The officers brought thirteen more people out of the back house.

Gomez filed a motion to suppress the fruits of the warrantless search (the aliens). The district court denied the motion, finding that exigent circumstances arose when the man walked out of the front house and ran back inside upon seeing the officers. "[W]hen coupled with the anonymous tip, the activities detected during surveillance, and the people that the officers saw through the window in the back house, that created probable cause and exigent circumstances. The district court concluded that these exigent circumstances permitted the officers to secure the house to protect their safety and the safety of those inside."

"Not so fast[,]" said the court of appeals. It acknowledged the legitimacy of the "knock and talk" tactic, but held that it was improperly executed here. Instead of knocking and waiting for a response, ten to twelve officers (accompanied by a helicopter) essentially raided the home and demanded entry. That's unreasonable.
The district court erred in finding that exigent circumstances justified entry into the front house when the man exited the back door to the front house, saw the officers, and ran back into the house. According to the officers, they followed the man into the house because they needed to surprise the occupants and any potential armed smugglers to divert a possible shoot-out. This argument fails because the officers had already lost any element of surprise when they announced their presence, knocked on the doors, and demanded entry.

Because the officers' unreasonable actions were responsible for creating the exigent circumstances, those circumstances could not justify a warrantless entry into the home. The court also held that Gomez's consent was not an "independent act of free will" breaking the chain of illegality that led to the discovery of some of the aliens. Accordingly, the court reversed Gomez's conviction for conspiracy to harbor aliens (8 U.S.C. § 1324(a)(1)(A)(iii)).

Astute readers might say, "Hold on a sec. Didn't the Fifth Circuit hold that officers weren't responsible for creating the exigency in a case with similar facts just a couple of months ago?" Yep, in United States v. Newman, No. 05-20603 (5th Cir. Dec. 5, 2006). And Gomez-Moreno addressed that. It pointed out that the facts here are more similar to an even earlier case, United States v. Vega, 221 F.3d 789 (5th Cir. 2000), in which the Fifth Circuit held that officers unreasonably created the exigent circumstances. To the extent that there's any conflict between Vega and Newman, this panel was bound by the earlier decision in Vega. You might also notice that Judge Jolly, who authored this opinion, has recently expressed some discomfort with the drift of the Fifth Circuit's case law in this area. And rightly so.

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