Robert Simmons was convicted of being a felon in possession of a firearm and ammunition. He appealed on Fourth and Fifth Amendment grounds.,

His housemate called the police and complained that a couple of days beforehand Simmons threatened him with a gun. The police arrived at 1:00 a.m. His housemate was waiting for them. Simmons was in his bed.

Simmons got up and the police asked him questions in the hallway about whether he had a gun, where the gun was located and disputes he had with his housemate. Simmons was cooperative and told the police that he had a gun in his room.

The police then searched the room.

The questions raised on appeal was the admissibility of Simmons answers to the police questions since they were asked without the giving of Miranda warnings and the admissibility of the items found in the room including the gun.

The Second Circuit found the statements admissible under the Fifth Amendment exception to the MIranda rule for the answers to questions asked for public safety reasons. The public safety exception does not require that Miranda warnings “precede questions reasonably prompted by a concern for the public safety or for the safety of the arresting officers for a suspect’s answers to be admitted as evidence of his guilt.” The court found that the officers had sufficient concern about possible injury to themselves, Simmons ant the housemate to avoid giving the Miranda warnings, even though the scope of the questioning exceeding that necessary to find out whether there was a gun and where it was located. Considering the pressure of the moment the officers could be excused for the additional questioning.

But the Circuit Court reversed the District Court’s upholding the search of the room and remanded the case to the District Court. The government claimed that the search of the room was justified by the exigent circumstances exception to the warrant rule. The exception allows a warrantless search “when the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable.” But the court did not find the existence of exigent circumstances. Simmons was in the hallway. The apartment was full of police. One of the officers was blocking the door to the bedroom so he could not get the gun. There was no reasons that the search could not be delayed until a search warrant was obtained. A person’s house is particularly protected from warrantless seaches and therefore the court reversed the conviction pending further action of the trial court.

If “the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment ” police may enter a residence without getting a search warrant. This is called the exigent circumstances exception to the Fourth Amendment. For example police may enter a residence if they have reason to believe that evidence is being destroyed.

Some courts have ruled that the exigent circumstances rule does not apply when the police create the exigent circumstances. In Kentucky v, King police observed a crack cocaine sale outside of an apartment house. The culprits ran into the building. They were chased by officers. The officers knew that they went into one of two apartments. Out of one of the apartments the officers could smell a strong odor of marijuana, ¹ The officer knocked loudly at the door that they smelled the marijuana coming from. No one answered the door. ² The officers heard people moving around in the apartment and they thought that the residents were attempting to destroy the marijuana. ³ The officers yelled “police” and when no one answered the door knocked it down. ⁴

The defense argued, and the Kentucky Supreme Court agreed that by knocking loudly on the door the officers created the exigency and then used it to enter the apartment. According to the United States Supreme Court the essence of the Fourth Amendment is reasonableness and any search that is reasonable is acceptable. ⁵

While there are a number of justifications for the “police-created exigency” doctrine my favorite is that it allows any officer to create an exigency at any time. As Justice Ginsburg said in dissent:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment ’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.

All the officer has to do is say that he/she hears people moving around in the residence or hears a toilet flushing in the residence and they can claim that they thought that evidence was being destroyed. Then they kick the door down or walk in if its not locked. ⁶

Under Federal law it is not necessary to hold a hearing on motions to suppress evidence unless their is a factual dispute that can not be settled without a hearing. In U.S. v. D’Andrea the First Circuit Court of Appeals vacated a conviction and remanded the case to the trial court for the court’s denial of a motion to suppress without a hearing.

Kendra D’Andrea and Willie Jordan were charged with child abuse. D’Andrea accidentally sent photographs showing sexual abuse of her child to the mother of Jordan’s child in California instead of sending them to her boyfriend, Jordan. Apparently it was her practices to take sexually inappropriate pictures, post them on a limited access web page, and send them to Jordan.

When the mother of his child, identified as the “Tipster” in the appellate decision got the pictures she called the anonymous tip line run by the Massachusetts Department of Social Services (DSS). The Tipster helped DSS access the site and DSS agents provided copies of some of the pictures to the police. D’Andrea and Jordan were indicted and moved to suppress the evidence on Fourth Amendment grounds. The District Court denied the motion without a hearing.

The prosecutor put forth three reasons to justify the search. First, they claimed that since the Fourth Amendment only governs searches performed by governmental agents, the initial search by the Tipster was legal and nothing more was obtained by the Social Services search. ¹ Second, they claimed that exigent circumstances existed allowing the search. Third, they argued that the evidence would have been discovered whether or not DSS illegally searched the site and therefore the illegal search was immaterial.

The court found that there was insufficient evidence to support these theories and a hearing was necessary to determine if the Fourth Amendment was violated. As to the first claim it is necessary for the government to prove that the DSS search did not exceed the scope of the private scope. The record did not provide any evidence of whether or not the DSS search was more intrusive than the Tipster’s search. Therefore without an evidentiary hearing the private search doctrine does not justify the DSS search.

As to the second reason given by the government, exigent circumstances, their was no evidence of imminent danger to the child. There was no evidence that the abuse was continuing or that more would happen in the future.

As to the claim of inevitable discovery the appellate court also found insufficient evidence on the record to show that the government would have obtained the information without the illegal search. Therefore the court ordered the case remanded to the trial court for an evidentiary hearing on whether or not the search of the website was legal or whether, if it was not legal, the evidence would have been discovered in any case.

The Eighth Circuit Court of Appeals reversed the conviction in a case where the District court wrongly denied the defendant motion to dismiss on illegal search and seizure grounds.

Two United States marshals went to the Missouri residence of Gary McMullin, looking for Daryl Crowder who was wanted on an Illinois warrant. While Marshall Newlin knocked at the front door, Marshall Davis covered the back door. McMullin consented to Newlin coming in and he told the marshal that he was having coffee with his uncle.

Simultaneously Crowder ran out into the back yard and he was arrested by Davis. Newlin went into the back yard to assist in the arrest and McMullin also went out.

Newlin handcuffed McMullin and physically brought him back into the kitchen. Back in the house, Newlin noticed some ammunition in an ashtray. He then asked whether there were any guns in the residence. McMullin pointed out several weapons and McMullin was arrested for possession of weapons by a convicted felon.

There is no question that Marshal Newlin had consent to enter the residence. But the issue on appeal is whether he had consent for the second entry into the residence.

The core value behind the Fourth Amendment is to protect an individual’s privacy in his/her home. As the court stated

In particular, Fourth Amendment law recognizes the inherent sanctity of a person’s house. The caselaw has consistently recognized that considerably more protection is to be afforded a home than other premises. The leading decisions . . . are each heavily predicated upon the ancient precept that ‘a man’s home is his castle. . . . Therefore, “to search a private place, person, or effect, law enforcement must obtain from a judicial officer a search warrant supported by probable cause.

The court considered two exceptions to the warrant requirement — exigent circumstances and consent. The court found no exigent circumstances requiring the reentry into the residence which would require that “lives are threatened, a suspect’s escape is imminent, or evidence is about to be destroyed.”

The issue of consent is a little more difficult. Does the consent for the initial entry cover the second entry. The court found it did not. While there are cases where courts have found the contrary. Generally in those cases the re-entry occurred shortly after a brief exit to get help or some similar purpose.

The court gives only short consideration to what I consider to be a major issue. At the time of the re-entry McMullin is in handcuffs and he was physically moved into the house. He was under the control of the marshal he may have well felt that he did not have the power to refuse consent. So I doubt any withdrawal of consent or giving of consent would have been in voluntary.

In any case the court came to the right decision and reversed the conviction.