US Supreme Court

In any criminal case involving sexual exploitation of a child in the making, possessing, or distributing of child pornography, there is an issue of restitution to consider.  More specifically, if the child suffered monetary damages, who is responsible to pay restitution to the child to make him/her whole?  Is it the person that created the images, the person that distributed them on the internet, the end user that downloads and possesses the images, or everyone?  The courts were split on this issue.   Some held that every person along the way should pay their share of the damages.   Other courts held that each person is responsible for the total damages.

The Supreme Court has now weighed in the issue and has held that every offender is liable for their share of the damages, not more.   Below is the synopsis of the case wherein the Supreme Court considered this issue.

Issue: Is a person who was convicted of possession of child pornography liable to pay full restitution to the victim (the child subject) or should the court limit damages to only that which was proximately caused by the convicted person's actual role in the exploitation?

Paroline v. United States, 134 S. Ct. 1710 (2014)- Petitioner Randall Paroline pled guilty to possessing 150 to 300 images of child pornography, including two images of a girl named "Amy" being abused by her uncle at the age of eight or nine years old.  Amy's uncle took a number of photographs depicting her in sexually abusive poses, and distributed the materials over the Internet.   However, Amy first learned that images of her abuse were being trafficked on the Internet when she was 17.  This new information caused renewed trauma from the events that took place when she was a young girl and it made it difficult for her to recover from the abuse.

Amy then sought restitution under 18 U.S.C. §2259 from Paroline even though he was not the originator of the pictures. Paroline argued that a victim's damages must be proximately caused by the defendant's conduct because any other result would turn child exploitation restitution proceedings into a procedural nightmare. Amy argued that §2259 did not require proximate causation for a victim to be entitled to full damages; otherwise, the victims of child abuse would bear the burden of collecting tiny shares of restitution from several defendants and might never receive full recovery.

The District Court declined to award restitution because the Government had failed to meet its burden of proving what losses, if any, were proximately caused by the Paroline's offense. The Fifth Circuit held that §2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim's images should be made liable for the victim's entire losses from the trade in her images, even though other offenders played a role in causing those losses.

The Supreme Court vacated and remanded the Fifth Circuit's decision and held that restitution is proper under §2259 only to the extent the defendant's offense proximately caused a victim's losses. Victims should be compensated and defendants should be held accountable for the impact of their conduct on those victims, but defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. Where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses. Therefore, in determining the proper amount of restitution, a court must assess as best it can from available evidence the significance of the individual defendant's conduct in light of the broader causal process that produced the victim's losses.

In short: each defendant pays his or her fair share of the victim's losses in a child pornography matter.

Issue presented to the Court: Whether Appellant's state court assault conviction qualified as a "misdemeanor crime of domestic violence" thereby prohibiting him from possessing a firearm under federal law (18 U.S.C. §922(g)(9)).

United States v. Castleman, 134 S. Ct. 1405 (2014)- In 1996, Congress passed 18 U.S.C. §922(g)(9), which criminalizes the possession of firearms by certain individuals.  This section makes it a federal crime for a person convicted in state court of a "misdemeanor crime of domestic violence" to own, possess, or transfer a firearm if the misdemeanor involved the use or attempted use of physical force.  In 2001, James Castleman was convicted in Tennessee of misdemeanor domestic assault for "intentionally or knowingly causing bodily injury to the mother of his child." In 2008, federal agents learned that Castleman was selling firearms on the black market.  A grand jury indicted Castleman on two counts of possession of a firearm in violation of §922(g)(9) because of his previous "misdemeanor crime of domestic violence" conviction.

Castleman moved to dismiss the §922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a "misdemeanor crime of domestic violence" because it did not have the "use of physical force" element under §922(g)(9).  The District Court agreed and dismissed the §922(g)(9) counts, reasoning that Castleman's misdemeanor domestic assault conviction did not qualify as a crime of domestic violence because 'physical force' must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning.  The Sixth Circuit affirmed on different grounds.  It held that the degree of physical force required for a conviction to constitute a "misdemeanor crime of domestic violence" is the same as the required for a "violent felony" under the Armed Career Criminal Act, §924(e)(2)(B)(i)-violent force- and that Castleman could have been convicted for causing slight injury by nonviolent conduct.

In a 9-0 decision, the United States Supreme Court overturned the lower courts, holding that Castleman's conviction of misdemeanor domestic assault qualified as a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. §922(g)(9). According to the Court, §922(g)(9)'s "physical force" requirement is satisfied by the degree of force that supports a common-law battery conviction- namely, "offensive touching." Justice Sotomayor, writing for the majority, explained, "Such acts of violence may be relatively minor, and could include hitting, slapping, shoving, grabbing, pinching, hair pulling, or a squeeze of the arm that causes a bruise." She went on to say, "an act of this nature is easy to describe as 'domestic violence' when the accumulation of such acts over time can subject one intimate partner to the other's control." Once the court determined that "physical force" was at least offensive touching, the Court then looked to Castleman's conviction of 'intentionally or knowingly causing bodily injury' to the mother of his child.  Because the knowing or intentional causation of bodily injury necessarily involves the use of physical force, his conviction qualified as a "misdemeanor crime of domestic violence" that fell within the scope of §922(g)(9).

So, what are the implications of U.S. v. Castleman going forward?  Now that the scope of §922(g)(9) has been clarified, federal prosecutors seem to have more legal authority to prosecute prior convicts based on state law convictions.  More specifically, if the defendant has been previously convicted for a misdemeanor crime of domestic violence, where the criminal act was any form of offensive touching, the person may be convicted for illegal gun possession under §922(g)(9) if he or she is subsequently caught with a firearm.

Can police obtain consent from a co-tenant to conduct a warrantless search a dwelling after another co-tenant, who objected to the search, is lawfully removed?

The Supreme Court said YES in Fernandez v. California.  Read more below to see what happened and when the police can search a home without a warrant over a tenant's objection.

Fernandez v. California (2014) - Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas answered.  She appeared to be battered and bleeding.  When the officers asked Rojas to step out so that they could conduct a search of the apartment, Fernandez came to the door and objected to the search.  Suspecting that he had assaulted Rojas, the officers removed Fernandez from the apartment and placed him under arrest. He was later identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas's oral and written consent and searched the premises where he found several items linking petitioner to the robbery.

At trial, Fernandez moved to suppress the evidence seized in the warrantless search.  The trial court denied Fernandez's motion to suppress the evidence, and he was convicted.  The California Court of Appeals affirmed the conviction.  It held that because Fernandez was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants present objects to the search, Georgia v. Randolph, did not apply, and therefore, Fernandez's suppression motion had been properly denied.

In a 6-3 decision, the Supreme Court ruled that police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected.  Here, the Court said that Fernandez did not have a right to prevent the search of his apartment once Rojas had consented.  Although an officer usually needs a warrant from a judge to search a home, home searches are legal whenever the officers are able to obtain consent from an occupant.  According to the Court, "A warrantless consent search is reasonable and thus consistent with the 4th Amendment irrespective of the availability of a warrant." Furthermore, "Denying someone in Rojas' position the right to allow the police to enter her home would show disrespect for her independence." The judgment of the Court of Appeals was affirmed.

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HERE is Scotusblog's page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant's motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas' consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit's analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant's consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant's previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

The Legality of Drug-Sniffing Dog Searches

Let's face it, nobody really likes uninvited guests on their front porch, unless, of course, it is the time of year when the Girl Scouts are selling cookies or little trick-or-treat monsters are out and about.  Aside from that, I'm not too keen on having people drop by unannounced, especially if that person is trying to investigate a crime or conduct a search and seizure.

The United States Supreme Court recently considered a case involving an unannounced (and unwelcome) furry visitor to a man's front porch.  The question presented was this:  Is a dog sniff at the front door of a suspected drug house by a trained narcotics detection dog a Fourth Amendment "search" requiring probable cause?

In a 5-4 decision authored by Justice Scalia, the Supreme Court said YES, the use of the drug-sniffing dog was an unreasonable search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)-  In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines.  One month later, police took a drug-sniffing dog to Jardines's front porch, where the dog gave a positive alert for narcotics.  Officers obtained a search warrant, which revealed marijuana plants inside the home.  Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion but the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court's decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines's home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.

The Supreme Court of the United States granted certiorari, limited to the question of whether the officers' behavior was a search within the meaning of the Fourth Amendment.  The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes.  While custom typically permits a visitor to approach the home "by the front path, knock promptly, wait briefly to be received, and then leave," it does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around for incriminating evidence.  Therefore, the government's use of trained police dogs to investigate the home and its immediate surroundings was a "search" within the meaning of the Fourth Amendment.

To learn more about Police Canine Training, check out our friend and trainer Steve Scott at Scott's Police K9 in North Texas.

United States v. Gonzalez-Garcia, 2013 U.S. App. LEXIS 3366 (5th Cir. Tex. Feb. 15, 2013)

A federal agent saw Appellant walk out of a house under surveillance as part of a drug investigation.  The agent approached Appellant, handcuffed him and placed him in his police vehicle.  Without advising Appellant of his Miranda rights, the agent asked him if he was guarding a drug-house and if there were drugs in the house.  Appellant replied, "Yes" to both questions and then requested an attorney.  The agent asked Appellant for consent to search the house, which Appellant granted.

The agents found over two thousand kilograms of marijuana in the house. The district court suppressed Appellant's admissions that he was guarding marijuana in the house because they were obtained in violation of Miranda, which the government conceded on appeal.  However, the district court refused to suppress the marijuana recovered from the house.

First, Appellant argued the marijuana should have been suppressed because the agent obtained consent to search from Appellant after he requested an attorney.  Second, Appellant claimed the agents' use of his admissions, which were later suppressed, automatically rendered his consent to search involuntary. The Court disagreed.

In Edwards v. Arizona the Supreme Court held when an accused invokes his right to counsel, he is not subject to further questioning until counsel has been made available to him.  However, a violation of the Edwards rule does not require suppression of physical, non-testimonial evidence.  Consequently, even if the agent violated Edwards when he asked Appellant for consent to search the house, that violation would not justify suppression of the marijuana, which is physical, non-testimonial evidence.

Next, the court held Appellant's consent was not automatically rendered involuntary because his Miranda rights were violated.  Such a rule is not consistent with the multi-factor approach courts must use when determining voluntariness.  Using that approach, and considering the Miranda violation, the district court found Appellant voluntarily consented to the search of the house.

You have the right to remain silent…as long as you’re in custody and have been mirandized.

In Salinas v. State, the Texas Court of Criminal Appeals addressed an issue about which it and the Supreme Court have remained silent while many other courts across the nation are split; whether the state may comment on an accused's silence prior to his arrest and Miranda warnings.

In Salinas, the appellant was convicted for murder and sentenced to 20 years in the penitentiary after the state introduced evidence during guilt/innocence about his refusal to answer a question about the possibility of the shotgun shells found on scene matching the shotgun found at his residence.  Appellant refused to answer the question, choosing to remain silent, at a time prior to his arrest and before the police had issued any Miranda warnings.  The defense argued the state was solely using the testimony regarding appellant’s silence as evidence of his guilt in violation of the 5th Amendment.

The Fourteenth Court of Appeals (Houston) affirmed the trial court’s decision to allow the questioning, focusing on the difference between post-arrest, post-Miranda silence and pre-arrest, pre-Miranda silence.  The court of appeals noted that the appellant voluntarily answered questions by police for over an hour before refusing to answer the ballistics question.  Citing Justice Stevens concurring opinion in Jenkins v. Anderson, 447 U.S. 231 (1980) the CCA held:

the Fifth Amendment right against compulsory self-incrimination is "irrelevant to a citizen’s decision to remain silent when he is under no official compulsion to speak."

The CCA spent little time in this opinion to proclaim loudly it affirms the Fourteenth Court’s holding:

The plain language of the Fifth Amendment protects a defendant from compelled self-incrimination.  In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police officers is not compelled.

Now, we will continue waiting for SCOTUS to speak up on the issue hoping they don’t continue exercising their right to remain silent…

UPDATE:  US Supreme Court opinion - Salinas Supreme Court Opinion

Howes v. Fields is a U.S. Supreme Court Case that was released on February 21, 2012.  In this case, the U.S. Supreme Court confirmed that there is no bright line rule for determining when an inmate is in "custody," such that Miranda warnings are required if officers wish to questions him about an unrelated crime.

While serving a jail sentence, a corrections officer escorted Fields to a conference room where two police officers questioned him about an unrelated crime.  At the beginning of the interview, the officers told Fields that he could leave whenever he wanted.  Fields eventually confessed to the crime.  The officers never advised Fields of his Miranda warnings or told him that he did not have to speak with him.

The Sixth Circuit Court of Appeals held that any time an inmate is taken from the general prison population and questioned about a crime that occurred outside the prison, he is always in-custody for Miranda purposes.  Makes sense, right?
The Supreme Court disagreed.  The Court held that serving a term of imprisonment, by itself, is not enough to constitute Miranda custody.  When a prisoner is questioned, the determination of Miranda custody should focus on all of the circumstances surrounding the interrogation, to include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.

In this case, the Court held that Fields was not in-custody for Miranda purposes.  Although the interview lasted between five and seven hours and continued well past the time Fields went to bed, the officers told Fields several times that he could leave and go back to his cell whenever he wanted.  Additionally, the interview was conducted in comfortable conference room, the officers did not physically restrain or threaten Fields and they offered him food and water.  All of these facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.

United States Supreme Court Holds that Attachment of GPS Tracking Device is a Search Under the 4th Amendment

Much like the landmark (and terribly confusing) opinion in Crawford v. Washington several years ago, the Supreme Court once again issued an opinion that appears likely to raise more questions going forward than answers.  The issue presented in United States v. Jones was whether the attachment of a Global Positioning-System GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the FourthAmendment.  The Court held:

The Government’s attachment of the GPS tracking device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

     (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.

     (b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.

     (c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

See the full opinion in United States v. Jones.  Okay, so it's a search (and in this case, an unlawful one), but where are the limits?  What instructions should be given to police officers and investigators?  Here's what Lyle Denniston over at ScotusBlog had to say:

Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS tracking device — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

Justice Scalia delivered the opinion of the court.  He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayer.  Justice Sotomayor, however, penned her own concurring opinion, as did Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan).

To be honest, I haven't had the time yet to fully digest the opinion, so I'll save any more comments for another time.  However, I will say that I am initially disappointed by the name of the case.  Fourth Amendment cases are supposed to have cool and interesting names (e.g. Katz, Ciraolo, Kyllo), not Jones.  C'Mon.  When you cite U.S. v. Jones, people are going to thing you're making the case up.  Oh well.  At a very minimum, this case should give all the hardworking criminal defense lawyers ample ammunition for motions to suppress.

This Tuesday (6 Dec 11), the United States Supreme Court heard another Confrontation Clause case (Williams v. Illinois) dealing with forensic testing (ala Melendez-Diaz and Bullcoming).  The question presented was

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

At trial, the state called a DNA expert to testify about how it matched the accused's DNA profile with DNA evidence recovered from a rape victim, but the state did not call a DNA analyst from the company that conducted the initial testing.  The defendant later claimed that his right to confrontation was violated because he was denied an opportunity to question all of the DNA analysts that tested the evidence.  The Court was hotly divided on the issue, at times debating amongst themselves.

Robert Barnes of the Washington Post covered the case HERE.  I couldn't attend the hearing, so I'll rely on his account of the oral argument.

The ABA preview of the case, which briefs and such, is HERE.

Back in February, we alerted you to the Supreme Court decision in Michigan v. Bryant regarding testimonial v. non-testimonial statements.  I wanted to re-post on this case and take a deeper look at what has changed as a result of the Supreme Court’s opinion.

The Bryant court came up with a new test to evaluate what types of statements made to law enforcement are testimonial.  Before Bryant, Crawford basically stated that statements made during interrogations qualified as testimonial.  But, Crawford was just the tip of the iceberg.  After Crawford, the Court in Davis v. Washington specifically addressed statements made to officers to enable them to respond to an ongoing emergency.  The Court held that those statements are non-testimonial.  The problem was that the Court in Crawford and Davis failed to give us a clear test to determine what types of statements would be non-testimonial.

Finally, the Court decided Bryant, giving us a test. Under the Bryant test, courts must consider three factors:

1) The circumstances of the encounter;

2) The questions and statements of the participants; and

3) The primary purpose of the interrogation as viewed by reasonable participants at the time.

The case was consistent with Crawford.  Analyzing the facts in Crawford, we can see that a 911 call reporting an ongoing assault would still be held non-custodial under the Bryant test.  The circumstances of the encounter was that there was an ongoing emergency taking place, the questions and statements of the participants were specifically in relation to the 911 call and the primary purpose of the 911 call was to report an emergency.  The Bryant court ultimately held that if the primary purpose of the statement is not for the purpose of creating a substitute for trial testimony, then the Confrontation Clause does not apply.

For all practical purposes, Crawford seemed to give a blanket exception for all 911 calls as being non-testimonial.  By giving us a test, the Supreme Court left each statement to be evaluated on a case-by-case basis.  Could a 911 call be considered testimonial?  If evaluated under the Bryant test, and the right circumstances exist, we think it could be.  This argument could have been made even after the Crawford decision came down, but it may be easier to point the court to the Bryant test when arguing that statements made were subject to the confrontation clause – even if there is an emergency situation taking place.

Michigan v. Bryant, 131 S. Ct. 1143 (2011)
Crawford v. Washington, 541 U.S. 36 (2004)
Davis v. Washington, 547 U.S. 813 (2006)

Supreme Court Case Review -  Kentucky v. King, opinion dated May 16, 2011:

Officers set up a controlled buy of crack cocaine outside an apartment complex. After the deal, the suspect went into the apartment building. Officers followed the suspect into a breezeway where they saw two apartments, one on the left and one on the right. The officers did not see which apartment the suspect entered. The officers smelled marijuana smoke emanating from the apartment on the left as they approached the door.

Knock and Announce

One of the officers knocked loudly on the door an announced, “Police, police, police.” The officers did not demand entry or threaten to break down the door. As soon as the officer started banging on the door, he heard noises that led him to believe that drug related evidence was being destroyed inside the apartment. At this point, the officers announced they were going to enter the apartment and they kicked down the door. Once inside the apartment the officers performed a protective sweep and recovered marijuana and powder cocaine in plain view. Officers eventually entered the apartment on the right and found the suspected drug dealer who was the initial target of their investigation.

One well recognized exception to the warrant requirement applies when the exigencies of the situation makes the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. The need to prevent the imminent destruction of evidence has been identified as one of the exigencies that may justify the warrantless search of a home. Where, as here, the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable.

When officers who do not have a warrant knock on a door, they do no more than any private citizen might do, and the occupant has no obligation to open the door or speak to them. It was only after the officers knocked on the door and announced, “Police, police, police,” did the exigency arise. Because the officers did not violate or threaten to violate the Fourth Amendment by demanding entry, or threatening to enter the apartment, the court held that the exigency that arose afterward justified the officers’ warrantless entry into the apartment.