United States v. Tyrond Brown

ILANA DIAMOND ROVNER, Circuit Judge,

dissenting.

For better or for worse, this circuit has forsaken a more searching review of the district courts’ suppression rulings and opted to review these rulings for clear error only. See United States v. Spears, 965 F.2d 262, 269-71 (7th Cir.), cert. denied, — U.S. —, 113 S.Ct. 502 , 121 L.Ed.2d 438 (1992); see also, e.g., United States v. Willis, 61 F.3d 526, 529 (7th Cir.1995); United States v. Saadeh, 61 F.3d 510, 515-16 (7th Cir.1995). Applying that deferential standard, we will disturb the district court’s decision only “if we are left with the definite and firm conviction that a mistake has been made.” Id.; see also Willis, 61 F.3d at 529 ; United States v. Veras, 51 F.3d 1365, 1370 (7th Cir.1995). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, N.C., 470 U.S. 564, 574 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985).

After hearing the evidence, the magistrate judge below found that the circumstances surrounding the initial entry into the apartment were not exigent and thus did not excuse the failure to obtain a warrant (Report and Recommendation at 7-13), and the district court expressly adopted that finding ( 861 F.Supp. 1415, 1420 ). Nonetheless, my colleagues in the majority — among the leading progenitors of the clearly erroneous standard of review, see, e.g., United States v. McKinney, 919 F.2d 405, 418-23 (7th Cir.1990) (Posner, J., concurring); United States v. Malin, 908 F.2d 163, 169-70 (7th Cir.) (Easterbrook and Posner, JJ., concurring), cert. denied, 498 U.S. 991 , 111 S.Ct. 534 , 112 L.Ed.2d 544 (1990) — all but ignore the district court’s finding on this critical point. Examining the facts afresh, they have concluded that a mild exigency justified a limited intrusion by the agents into the apartment before they sought the approval of a magistrate. Ante at 1086-87. I cannot square this conclusion with the limits that the clearly erroneous standard imposes upon our review. Moreover, I am deeply disturbed by the implications of the court’s rather liberal invocation of the exigent circumstances exception to the warrant requirement.

The magistrate judge carefully considered whether the circumstances confronting the agents were sufficiently grave to warrant an unauthorized intrusion into Fannie Bonds’ apartment. Because the majority merely mentions the lower court’s conclusion and ignores its rationale (see ante at 1086), I think it illuminating to recount the magistrate judge’s reasoning at length:

The government seeks to justify its actions based upon the possibility that Fannie Bonds was being held captive or was injured. This is a potentially grave harm, *1088 but what level of confidence could the government have in its belief that Fannie Bonds faced such a danger? The government knew that Johnson was armed when he was arrested and cocaine trafficking is known to be an inherently dangerous criminal activity. Any concern Melick had was not alleviated when Brown refused to answer questions, but it was Brown’s right to refuse, and his silence could as readily indicate an attempt to protect Bonds from law enforcement contact. Contrary to the government’s assertion, there is no testimony that Brown ever denied knowing Bonds; he simply refused to answer. Moreover, the theory that Brown and Johnson might have forcibly taken control of [Bonds’] premises and vehicle to engage in drug trafficking is not supported by any specific testimony or any general evidence that this is a common practice amongst drug dealers. In fact, this would seem an unlikely scenario since it would draw unnecessary and unwanted attention.

In short, nothing specific or concrete points to the fact that Bonds, or anyone else inside the apartment, was in danger; nor was there anything concrete that placed Bonds most recently inside the apartment. Contrast United States v. Arch, 7 F.3d [1300] at 1304-05 [ (7th Cir.1993) ] (officer observed a room in disarray, with furniture overturned, beds torn apart, and the floor littered with syringes and a bloody rag) [cert. denied, — U.S. -, 114 S.Ct. 1123 , 127 L.Ed.2d 431 (1994) ].

Was there anything supporting a need for immediate action? The officers’ entry into the apartment came at least several hours after Johnson was first found in possession of Bonds’ ear. Nothing took place in the interim which would cause the officers to suspect any change in the status quo; even if the status quo was unknown. There is no testimony that the officers heard any sounds coming from the apartment or any other indicators that the status quo could change if, for instance[,] Bonds was being held captive inside and Brown failed to return to the apartment. There simply was no apparent need for immediate action. Taking judicial notice, the court would also note that had there been probable cause, the delay incurred by seeking a warrant need not have been substantial since warrants in this metropolitan area are available on very short notice.

Most troubling about this case is that there are several plausible explanations for Bonds’ identity. The vehicle could have belonged to Brown, but been titled under the name of a family member, which is not unusual in cocaine trafficking cases. Brown may have been authorized to use the vehicle and did not want to get Bonds involved. Bonds could have been a cocon-spirator whom Brown was protecting. Despite all these plausible explanations, the government seizes upon what seems to be the least plausible, intimating that Bonds was being held against her will while her apartment and car were used for drug dealing.

Equally troubling is that the government chose the most intrusive means to pursue the least plausible explanation. Rather than start by attempting to locate the apartment manager or by knocking on neighbors’ doors and asking if they could identify Brown, or if they knew anything about Fannie Bonds’ whereabouts, the officers violated Bonds’ and Brown’s Fourth Amendment rights by conducting a war-rantless search. Although the court does not doubt that Melick entertained some concern for Fannie Bonds’ well being, the court doubts that Melick’s subjective concerns ever ripened into more than a hunch or a passing concern. For instance, there was no testimony that the officers entered with weapons drawn, or took steps to ascertain what dangers lurk[ed] within before entering the apartment. See [United States v.] Salava, 978 F.2d [320] at 324 [ (7th Cir.1992) ] (precautionary measures to assure officer safety that delayed entry for over an hour did not nullify the exigency). There is no evidence that following Johnson’s arrest the officers were attempting to locate Bonds or taking measures to assure her safety; they were pursuing their investigation of Johnson’s drug trafficking and cultivating his cooperation. *1089 For all of the foregoing reasons, the court finds that on an objective level, there simply are not facts which could reasonably lead to the conclusion that anyone was inside the apartment in immediate danger.

Report and Recommendation at 10-13 (emphasis in original); see also 861 F.Supp. at 1420 (adopting this analysis). I am hard pressed to identify the clear error in this analysis. I suppose it was possible, given the facts known to the agents when they first entered the apartment, that Bonds might be found bound and gagged, possibly injured, inside. And like the district court, I do not doubt that Special Agent Melick harbored some concern for Fannie Bonds’ well-being. See 861 F.Supp. at 1420 . But there were no signs of foul play that would compel a finding of exigent circumstances. Although Johnson was armed, neither he nor Brown was arrested for committing a violent crime; neither the car Johnson was driving nor the vehicle referenced in the rental agreement had been reported stolen, and it is hardly out of the ordinary for an individual to drive a car belonging to someone else; nor is it unusual for a person to carry a key to an apartment bearing someone else’s name on the doorbell — houseguests, roommates, new tenants, and family members with different last names do so routinely; and, finally, there was no trail of blood, muffled scream, nor any other clue suggesting that harm might have befallen Mrs. Bonds.

The majority itself candidly acknowledges that the agents’ reasons for concern over Mrs. Bonds’ safety were “far from strong,” and so justified only a limited intrusion into the apartment. Ante at 1086. I find no comfort, and little deference to the Fourth Amendment, in this acknowledgement. Characterizing the circumstances as “mildly exigent” (ante at 1086, quoting Murdock v. Stout, 54 F.3d 1437, 1442 (9th Cir.1995)) is a bit like saying one is a “little pregnant.” Until today, the exigent circumstances exception to the warrant requirement has been reserved for instances in which the known facts objectively required prompt action to alleviate a concrete risk of bodily harm or the destruction of evidence. See, e.g., Saadeh, 61 F.3d at 515-16 ; United States v. Hardy, 52 F.3d 147, 149 (7th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 207 , — L.Ed.2-(1995). By recognizing a category of “mild exigencies,” the majority has effectively endorsed hunches and suspicions as the basis for warrantless entries and searches. I suspect it is a fairly common occurrence for the police to arrest someone driving a car titled in someone else’s name or carrying keys to an apartment with which he or she has no readily confirmed, legitimate connection. But as I read the majority’s reasoning, just this sort of routine circumstance may present a “mild” exigency justifying a warrantless search even if the vehicle has not been reported stolen or the apartment burglarized. The police need not knock on a neighbor’s door to see if anyone recognizes the arrested individual; they need not make phone calls to see if their fears about the safety of the car owner or apartment dweller can be verified; they need not await the approval of a neutral magistrate, even if a warrant could be obtained in short order, as the magistrate judge was confident it could have been (Report and Recommendation at 11-12). Instead, the authorities may simply enter a home, uninvited and without a warrant. And they were entitled to do so here, the majority reasons in part, because the inspection was “quick” (ante at 1086) and because it involved no physical destruction of the property (ante at 1086, citing Murdock, 54 F.3d at 1442 ). Yet, at bottom, a warrantless entry into one’s home is no less an intrusion simply because it is brief and accomplished with a key rather than an axe.

Thus, I am loathe to employ the majority’s “sliding scale” approach (“[t]he less intrusive a search, the less justification is required” (ante at 1086)) as license for warrantless intrusions into private dwellings. Cf United States v. Chaidez, 919 F.2d 1193, 1203-07 (7th Cir.1990) (Ripple, J., dissenting from the adoption of a sliding scale assessment of the degree of suspicion necessary to justify the detention of a person), cert. denied sub nom. Chavira v. United States, 501 U.S. 1234 , 111 S.Ct. 2861 , 115 L.Ed.2d 1028 and cert. denied, 502 U.S. 872 , 112 S.Ct. 209 , 116 L.Ed.2d 167 (1991). The residential threshold is not simply an arbitrary point on a continuum of places that the government *1090 may search; it sets off a private realm that the Fourth Amendment singles out for vigilant protection.

In [no setting] is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their ... houses ... shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 , 81 S.Ct. 679, 683 , 5 L.Ed.2d 734 [(1961)]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-90 , 100 S.Ct. 1371, 1381-82 , 63 L.Ed.2d 639 (1980). Articulating what constitutes a “mild exigency” and the degree of intrusion such an exigency permits seems to me a task fraught with problems, and ambiguities in this aspect of Fourth Amendment jurisprudence will serve only to invite further encroachment upon the seclusion of the home. The majority’s rationale might be paraphrased in the diminutive — “little emergencies justify little intrusions” — but I fear that the hole it has opened in the Fourth Amendment is gaping. 1

Like the majority, I do not think that the evidence seized from Apartment 203 could be admitted on either of the alternate grounds upon which the district court relied. Without reservation, I agree with the majority that Brown cannot be said to have disclaimed his Fourth Amendment expectation of privacy in the apartment merely by pointing his finger away from the apartment. Ante at 1085. I also agree that the record as it stands does not permit reliance on the inevitable discovery doctrine (see Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984)), although my reasoning differs somewhat from that of the majority in this regard. The district court did not, as the majority suggests, simply assume that probable cause to search the apartment was enough to establish inevitable discovery. See ante at 1085. Rather, the court engaged in the very two-pronged inquiry we set out in United States v. Buchanan, 910 F.2d 1571, 1573 (7th Cir. *1091 1990), asking first whether the agents inevitably would have sought a warrant to search the apartment and second, whether a neutral magistrate would have issued it. 861 F.Supp. at 1424 . Buchanan has been characterized as “a radical departure from the Fourth Amendment” (United States v. Johnson, 22 F.3d 674, 684 (6th Cir.1994)), but perhaps the problem has less to do with the test Buchanan articulated than the rigor with which we apply that test. We thought it an “easy” question in Buchanan whether the police would have applied for a warrant to search the defendant’s hotel room absent the discovery of contraband during their initial warrantless entry. 910 F.2d at 1573 . 2 Similarly here, it “seem[ed] certain” to the district court that the agents would have applied for a warrant to search Apartment 203 even without the precursory looksee. 861 F.Supp. at 1424 . That assumption is certainly not illogical, but as I read both Nix and Buchanan , we may not indulge in casual assumptions about what the authorities would have done. Where, as here, the eventual application for a search warrant was tainted by what the authorities saw in the course of a preliminary warrantless search of the premises, the government bears the burden of 'proving, by a preponderance of the evidence, that its agents would in fact have sought a warrant even without the knowledge they gleaned from the warrantless intrusion. See Nix, 467 U.S. at 444 , 104 S.Ct. at 2509 . The government made no attempt at such a showing here. Indeed, as the district court pointed out, the government did not pursue the theory of inevitable discovery until after the magistrate judge had issued his report and recommendation ( 861 F.Supp. at 1419-20, 1423 ); consequently, the theory was not explored at all during the evidentiary hearing below. Thus, absent further record development, I agree that the district court clearly erred in allowing evidence as to what was found in the apartment to be admitted under the inevitable discovery doctrine.

Because the record does not lend sufficient support to any of the theories that the government has advanced, I would reverse the denial of Brown’s motion to suppress and remand for further proceedings.

. I do not subscribe to the notion that "probable cause is enough to make a daylight search reasonable,” or that "the second clause of the fourth amendment disfavors warrants.” See ante at 1085 (citing Telford Taylor, Two Studies in Constitutional Interpretation 46-47 (1969)). Whatever historical support there may be for the argument that the framers were more concerned about abuse of the warrant than warrantless searches, the modern cornerstone of Fourth Amendment jurisprudence is that warrantless searches of the home are presumptively unreasonable. E.g., Arizona v. Hicks, 480 U.S. 321, 326-27 , 107 S.Ct. 1149, 1153 , 94 L.Ed.2d 347 (1987); Welsh v. Wisconsin, 466 U.S. 740, 748-49 , 104 S.Ct. 2091, 2097 , 80 L.Ed.2d 732 (1984); United States v. Ross, 456 U.S. 798, 824-25 , 102 S.Ct. 2157, 2173 , 72 L.Ed.2d 572 (1982); Payton v. New York, 445 U.S. at 586 , 100 S.Ct. at 1380 . That premise is, I believe, true to the central mission of the Fourth Amendment.

The main aim of the Fourth Amendment is against invasion of the right of privacy as to one's effects and papers without regard to the result of such invasion. The purpose of the Fourth Amendment was to assure that the existence of probable cause as the legal basis for making a search was to be determined by a judicial officer before arrest and not after, subject only to what is necessarily to be excepted from such requirement. The exceptions cannot be enthroned into the rule. The justification for intrusion into a man’s privacy was to be determined by a magistrate uninfluenced by what may turn out to be a successful search for papers, the desire to search for which might be the very reason for the Fourth Amendment’s prohibition. The framers did not regard judicial authorization as a formal requirement for a piece of paper. They deemed a man’s belongings part of his personality and his life.

United States v. Rabinowitz, 339 U.S. 56, 80 , 70 S.Ct. 430, 441-42 , 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). Thus, even if the Supreme Court's "current understanding” of the Fourth Amendment (see ante at 1085) is more expansive than the asserted understanding of the framers, I see no reason to retreat to colonial norms. "The Fourth Amendment makes a pledge to the American people. It states an ideal; it is not a constitutional wrench that 'locks-in' search and seizure practices of a vanished era.” Tracey Maclin, When the Cure for the Fourth Amendment is Worse Than the Disease, 68 S.Cal.L.Rev. 1, 11 (1994).

. It may be, as the majority suggests, that the court thought this question “easy” because Buchanan's appeal was focused primarily on the second prong of the analysis — whether the magistrate would have found probable cause to issue a search warrant. Ante at 1085; see Buchanan, 910 F.2d at 1573 .