# Petition for Writ of Certiorari — Kirk v. Louisiana

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0573%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 635

## Text

| ae QUESTIONS PRESENTED FOR REVIEW
wri Dp ' NO. | ORIGINAL Are the three dissenters on the Louisiana Supreme Court correct that the New Orleans Police

Department violated the Fourth Amendment to the United States Constitution’s “firm line at the

entrance to the home” when six officers forcibly entered Kennedy Kirk’s apartment without a

ie oe - ats >
é IN THE | warrant after a three hour surveillance and held Kirk and his co-defendant inside while one of the
SUPREME COURT OF THE UNITED STATES officers went to apply for a warrant?
Was the four judge majority of the Louisiana Supreme Court correct in letting stand the lower
KENNEDY KIRK, PETITIONER : appellate court’s decision that probable cause to make a warrantless arrest of Kirk and his co-
VERSUS defendant inside their apartment created an exception to the search warrant requirement to enter,
STATE OF LOUISIANA, RESPONDENT : seize them, and search them?
PETITION FOR WRIT OF CERTIORARI TO THE Where there is no evidence that the occupants of an apartment under surveillance to

SUPREME COURT FOR THE STATE OF LOUISIANA . ; ; : : .
corroborate an anonymous tip knew the police were in the area until the police approached the door

to force entry, is an officer’s speculation that evidence might be destroyed if persons in the apartment
learned of their presence the sort of emergency or exigent situation that would justify a warrantless
entry into a home for the purpose of either arrest or search?

Sherry Watters

Attorney for Petitioner, Kennedy Kirk
Louisiana Appellate Project

P.O. Box 58769

New Orleans, Louisiana 70158-8769
504-723-0284

LIST OF PARTIES

Harry F. Connick, (Attorney for the State of Louisiana)
District Attorney for the Parish of Orleans,

through Juliet Clark, Assistant District Attorney

619 South White Street

New Orleans, Louisiana, 70119

telephone (504)824-2414

Richard leyoub ( may be an interested party, though he was not involved in the proceedings below)
Attorney General for the State of Louisiana

301 Main Street

Baton Rouge, Louisiana 70802

telephone (225)342—7552

Sherry Watters, Louisiana Appellate Project
Attorney for Relator-Petitioner, Kennedy Kirk
P.O. Box 58769 ”
New Orleans LA 70158-8769

telephone (504)723-0284

\
\"

ii

QUESTIONS PRESENTED FOR REVIEW i
LIST OF PARTIES ii
TABLE OF CONTENTS ili
TABLE OF AUTHORITIES iv-Vii
Pee PE COs I ED 0 0.dhsccncnedctadcececocevawbesscdbiweunsas l
PE 60 6-0 bn 06N 00054000550 nssbnwodsvcaueth ncuwedebesstcueeseneel 1-2
PTET bb 00cbadnsedavecsvegsaendcncedepeconnadchesenspesbashiisesei 2
CONSTITUTIONAL AND FEDERAL PROVISIONS INVOLVED ................... 5. 2
te CE ig fin V eck nub obk 400d ks 45e5 6 6eonedbbes cdbawenke ban 2-5
FEDERAL ISSUES RAISED IN LOWER COURTS. ............ ccccccccccecceccees 5-6
REASONS FOR CERTIORARI: U.S. SUPREME COURT RULE 10 .................. 6-7
ARGUMENT IN SUPPORT: ILLEGAL SEARCH AND SEIZURE INSIDE HOME ..... 7-38
A. Constitutional Protection of Persons Inside Their Homes ......................05. 9-15
B. Warrantless Entry Requires Recognized Exigency ..................0.0c0ccueue 15-23
C. Officers Lacked Reasonable Belief that Evidence Would be Destroyed ............. 23-32
ee eS TU UIE cccbcednvenddcéducddheseeessetessiands 32-38
IS 6.5.4 Ob deb EGS se RENNER ede bb ndsbEds hc creneee vedi eneénnssédbeks 39
APPENDIX

1.Louisiana Supreme Court denial of writ with three dissents ..................0..0000. Al
2.Louisiana 4th Circuit Court of Appeal opinion... ............006 006 cc eee eens A2
3. Transcript of the Hearing on the Motion to Suppress the Evidence.................... A3
4. Application for Search Warrant with Affidavit and Return............ ......2.00005. A4
5. Diagram of 2300 block of Washington Avenue ..................0c ec eeeeeeeeees AS

iii

TABLE OF AUTHORITIES

UNITED STATES CASES

Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925)................ 12
Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) ..............0..5. AN
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) .......... di
Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) ............ dl
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ............... 5
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 .............., A
Illinois v. McArthur 531 US.326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) .............0.. 6
Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ............... MM
Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 ............. dl
Ker v. California, 374 U.S.23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ........... cece ee, 30
Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ............. 14
Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) .........0..0.0.005. 39
McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed.2d 153 (1948) ........... 5
Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) ............... a
Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) ................. 16
Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) ............... 10
Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) ............... jl
Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L.Ed.2d 334 (1993)........... 5
teen Bie, Ch Oi TIO oi ois oid cvivavdecitsidcsseeeee ee ji

iv

Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)

Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) .............. 6
Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) ........... 26
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ............ 16
Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) ............ 6
Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ©....... Al

Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) ........... At

Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed.2d 951 (1932) ................ 37
Terry v. Ohio, 392 U.S. 1, 88 S.Ct.1882, 20 L.Ed.2d 889 (1968) .. 0.20... eee, 21

ee I ns so vs cc usuiocccducensacaredoseecedoes 32
Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) .............. 6
Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948) ............ dM
United States v. Capote-Capote, 946 F.2d 1100 (Sth Cir. 1991), cert. denied 504 U.S. 942, 112 S.Ct.
ee cea lubsdbeesbadedeosesede 28
United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951)... 2.0.0... o eee, 21
United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) ......... dl
United States v. Knights, - U.S.-, 122 S.Ct. 587 (2001)... 2... cece cue 33
United States v. Rubin, 474 F.2d 262 (3rd Cir. 1974) cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38
a sss cade waccoeerecnteses 25
United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) ............. 16
United States v. Scheffer, 463 F.2d 567 (Sth Cir.1972), cert. denied 409 U.S. 984, 93 S.Ct. 324, 34
odes cennsdevecceneecdassetenss 26
United States v. Thompson, 700 F.2d 944 (Sth Cir.1983) 0.0. 26

Vv

United States v. United States Dist. Court for Eastern Dist. of Mich.. 407 U.S. 297. 313. 92 S.Ct.

DT. .. . <<. ssichascak dbase naatuiedivbakocedmiasleel 10
Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970)... 2.2... occ ee 6
Warden v. Hayden. 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) .... 20.0... 16
Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) ............... 6
Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) ............. 26
Wolf v. Colorado. 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) ....... 28.00.0000... 39
LOUISIANA CASES
State v. Carter 94-2859 (La. 11/27/95), 664 S0.2d 367 0... cece cece ce ceeeeeeees 3
State v. Dorsey 99-1819 (La.App. 4 Cir. 4/19/00), 763 So.2d 21.00... coco c ccc cece cece. 3
State v. Duncan, 420 So.2d 1105, 1108 (La.1982) ..... Cease P ROP ee Pet DPE Pa 12
State v. Hathaway, 411 So.2d 1074, 1079 (La. 1982)... cece cece cece cee eeeees 16
State v. Kirk 2000-0190,(La. 4 Cir. 11/15/2000), 773 $0.2d 259 00... coco cece ccc e eee. J
State v. Kennedy Kirk 2000-3395 (La. 11/9/01), 801 So.2d 1063 2.2.0... eee cece cc cece. 2
State v. Landry. 414 So.2d 674 (La. 1982) 00.00 c cece cece cecccccccecseeee. 19
State v. Nogess, 98-0670, (La.App. 4 Cir. 3/3/99), 729 So.2d 132... 0.00. occ cece ccc eee. 3
State v. Slan 624 So.2d 451 (La. 4 Cir. 1993), reversed 632 So.2d 749 (La. 1993) .......... 6
466 So.2d 39 (La. 1985), on remand Thompson vy. Louisiana, 469 U.S. 17, 105
S.Ct. 409, 83 L.Ed.2d 246 (1984), 448 So.2d 666 (La.1984) 200. c cee. 1 BO
State v. Welch, 449 So.2d 468 (La. 1984) o.oo cece cece ccccuuucuuuuueeeeceee. 16
vi

STATUTES AND RULES

Fourth Amendment, United States Constitution
Fourteenth Amendment, United States Constitution
28 U.S.C. § 1257

Supreme Court Rule 10.1(c)

Supreme Court Rule 13.1

Federal Rule of Criminal Procedure Art. 33
L.S.A.-C.Cr.P. Art. 215.1

La.R.S. 40:967

Louisiana Constitution of 1974, Article 1, Section 5

Louisiana Constitution of 1974, Article 1, Section 19

vii

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% *
a) |

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

KENNEDY KIRK. PETITIONER
VERSUS

STATE OF LOUISIANA, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE
LOUISIANA SUPREME COURT

The Petitioner, Kennedy Kirk, respectfully prays that a writ of certiorari issue to review the
judgment of the Supreme Court for the State of Louisiana, by a four to three decision, which denied
relief to Petitioner in this matter on November 9, 2001, which is within ninety days of this Petition
for Writ of Certiorari.

OPINION BELOW

On November 15, 2000, the Louisiana Fourth Circuit Court of Appeal affirmed the trial
court's denial of the Motion to Suppress the evidence and the conviction of Kennedy Kirk. A copy
of the published opinion is attached to this petition as Appendix 2. State v. Kirk 2000-KA-0190, 773

So.2d 259 (La. 4 Cir. 11/15/2000) . Kennedy Kirk applied to the Louisiana Supreme Court for a writ

of the Louisiana Supreme Court's judgment denying discretionary review is attached as Appendix
1. One of the three dissenting Louisiana Supreme Court judges assigned reasons which are also
included in Appendix 1 to this petition. State of Louisiana v. Kennedy Kirk 2000-3395 (La. 11/9/01),
801 So.2d 1063.(App. 1).
JURISDICTION

The four to three decision of the Supreme Court for the State of Louisiana denying the
Application for Certiorari by Kennedy Kirk and upholding the lower appellate court decision was
entered on November 9, 2001. This Petition for Writ of Certiorari is filed within ninety days of that
date, pursuant to Supreme Court Rule 13.1. The jurisdiction of this Court is invoked under 28
U.S.C. § 1257.

Fourth Amendment to United States Constitution: "The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized."

Fourteenth Amendment, Section 1, to United States Constitution: "... nor shall any state

deprive any person of life, liberty, or property without due process of law..."
STATEMENT OF THE CASE
Six New Orleans Police officers shoved their way into Kennedy Kirk's apartment at 2316

Washington Avenue, Apartment 15, without a warrant of any kind. Upon pushing open the door and

entering, the officers seized and frisked Kirk and his co-defendant, Paul Cook. The police
handcuffed both men. During the frisk for weapons, a medicine bottle with fifty-six rocks of cocaine
was taken from Kirk’s underwear. The police seized a bottle with some rocks of cocaine from Cook
and a gun from Cook’s chair. At least four officers stayed in the apartment with handcuffed Kirk and
Cook for over two hours while the officer in charge, John Brunet, went to get a search warrant. using
some of the information they obtained during their entry.

Officer John Brunet and his partner, Derek Brumfield, along with four to six back up officers,
including Steven Gaudet, went to the 2300 block of Washington Avenue that day, March 5, 1998,
around 5:00 p.m. It was daylight. They had received anonymous information from a hotline about
drug trafficking from the twenty apartment building, but had no pa. :ular information about
Apartment 15 and did not know either Kirk or Cook. The officers’ testimony, though they were
working together and had the same vantage point, wes inconsistent.

Over two hours into the surveillance, between 7:15 and 8:00 p.m., Brunet saw what he
believed to be four drug transactions at the door of Apartment 15. Kirk was the person at the door
in one of the first three alleged transactions. Cook was seen at the door making a suspected fourth
transaction to a man, later identified as Leslie Butler. Officer Brumfield', who was with Brunet in

a car about forty yards from the apartment during the surveillance, did not see any transactions.

‘Only Officer Brunet testified at the hearing on the motion to suppress the evidence. Officers
Brunet, Brumfield and Gaudet testified at trial to the circumstances of the search, seizures and arrest.
Under Louisiana law, in reviewing a trial court's ruling on a motion to suppress, an appellate court
is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any
pertinent evidence given at trial of the case. State v. Nogess, 98-0670, (La.App. 4 Cir. 3/3/99), 729

So.2d 132, 137; State v. Dorsey 99-1819 (La.App. 4 Cir. 4/19/00), 763 So.2d 21; State v. Carter 94-
2859 (La. 11/27/95), 664 So.2d 367.

Brumfield could not see the apartment clearly. Brunet testified that they were so close that he did not
need binoculars to see the alleged exchanges of small unknown objects for currency.

At Brunet’s direction, Officer Gaudet stopped and arrested Butler at 8:15 p.m., around the
comer from the apartment, on LaSalle Street and Washington Avenue (See diagram, App. 5; Trial
Tr. 21-3). Gaudet seized cocaine from Butler and arrested him. Then Gaudet met Brunet, Brumfield,
and other officers at Kirk’s apartment. Paul Cook saw Officers Brunet and Brumfield at his door and
came outside, but the officers pushed past him and took him inside the apartment. Brunet and
Gaudet’s estimate of the number of officers involved in the entry varied from six to eight officers.
Gaudet and Brunet said that Brumfield participated in the initial entry of the tiny apartment.
Brumfield denied entering the apartment until Brunet returned with the warrant at 10:30 p.m.
Brumfield would not admit that the other officers entered the apartment.

Brunet claimed that he had an “exigent circumstance” to justify the police actions in that he
believed evidence would be destroyed because he thought Butler's detention “would get back to
them” (App. 3, Mot. Tr. 13). Brunet said it was “possible” that evidence would be destroyed (Trial
Tr. 6). Brunet candidly admitted, “no judge or magistrate would have signed a warrant” before the
police entered the apartment (Trial Tr. 21). Brunet admitted that he put information gained in the
entry of the apartment in the warrant application (Mot. Tr. 11, App. 3; Warrant, App. 4).

Brunet returned with the search warrant at 10:40 p.m. He admitted that by then, “several
items had already been seized” (Trial Tr. 7). After securing the warrant, $283.00 was seized from
the pants of Kennedy Kirk. The officers also seized a pipe, a cooking tube, and some mail showing
that both Kirk and Cook received mail or lived at the apartment. John Palm, an expert in drug
analysis, tested four pieces from each vial and found them positive for cocaine. There was residue

found on some, but not all, of the other items seized from the apartment. All of these items, including
the cocaine found on Cook. were admitted as evidence against Kirk.

The trial court’s denial of the Motion to Suppress was upheld by the Louisiana Fourth
Circuit Court of Appeal. (See App. 2). Four judges of the Louisiana Supreme Court denied review,
while three judges voted to grant certiorari. One of the dissenters provided written reasons, citing
the Fourth Amendment violation:

“| dissent from the majority's denial of this writ because I believe the lower courts

erroneously denied the defendant's motion to suppress. The Fourth Amendment to

the United States constitution has drawn a firm line at the entrance to the home, and

thus, the police need both probable cause to either arrest or search and exigent

circumstances to justify a nonconsensual warrantless intrusion into private premises.

State v. Welch, 449 So.2d 468, 470 (La.1984). Pursuant to La.Code Crim. Proc. art.

703, the state has the burden of proof on the admissibility of evidence seized without

a warrant. Here, the defendant was arrested inside an apartment, without a warrant.

and the state has not demonstrated that exigent circumstances were present.
Consequently, defendant's arrest was unconstitutional, and his motion to suppress _

should have been granted.” State of Louisiana v. Kennedy Kirk 2000-3395 (La.
11/9/01), 801 So.2d 1063 (See App. 1).
FEDERAL ISSUES RAISED IN LOWER COURTS

The Motion to Suppress the Evidence, based on the Fourth Amendment violation, was denied
in the trial court and the Louisiana Fourth Circuit Court of Appeal affirmed that decision. Kennedy
Kirk’s Application for Writ of Certiorari to the Louisiana Supreme Court raised the
unconstitutionality of the warrantless search and seizure of Kennedy Kirk’s apartment and person
as prohibited by the Fourth Amendment to the United States Constitution and applied to the states
under the due process clause. Kennedy Kirk’s Application for Writ of Certiorari to the Louisiana
Supreme Court raised the conflict with this Court’s decisions in Chimel v. California, 395 U.S. 752,
89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93

L.Ed.2d 153 (1948); Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L.Ed.2d 334

5

(1993); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Segura vy.
United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); Thompson v. Louisiana, 469
U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26
L.Ed.2d 409 (1970); and Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).
| The Louisiana Supreme Court, in a four to three decision, should have granted review and
corrected the erroneous decision of a lower appellate court which permitted police to enter a private
residence without either a warrant or an exigency, and then to search the person of the defendant. A
warrantless entry, seizure and search of the Kirk’s apartment, its occupants and its contents
contaminated the seizure of evidence, including that obtained after the warrant was issued.
phates all of the evidence improperly seized, including that from the other occupant and the
apartment, not just the evidence seized from Kirk’s person, was used against Kirk at trial.’

SPECIAL AND IMPORTANT REASONS CERTIORARI SHOULD BE GRANTED:
COMPLIANCE WITH U.S, SUPREME COURT RULE 10

This case presents the issue, avoided in Payton v. New York, 445 U.S. 573, 601, 100 S.Ct.
1371, 63 L.Ed.2d 639 (1980) and not reached in Welsh, 466 U.S. 740 or Illinois v. McArthur 531
U.S.326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), "to consider the sort of emergency or exigent
situation that would justify a warrantless entry into a home for the purpose of either arrest or search."
Payton, 445 U.S. at 583, 100 S.Ct. at 1378.

The three dissenters on the Louisiana Supreme Court were correct in declaring that the New

Orleans Police Department violated the Fourth Amendment to the United States Constitution’s “firm

“Louisiana law applies the Fourth Amendment to evidence illegally seized from a person
other than the defendant if the evidence is to be used against the defendant. State v. Slan 624 So.2d
451 (La. 4 Cir. 1993), reversed 632 So.2d 749 (La. 1993).

6

line at the entrance to the home” when six officers forcibly entered Kennedy Kirk's apartment
without a warrant after a three hour surveillance and held Kirk and his co-defendant inside while one
of the officers went to apply for a warrant. State of Louisiana v. Kennedy Kirk 2000-3395 (La.
11/9/01), 801 So.2d 1063 (See App. 1). The four judge majority of the Louisiana Supreme Court was
incorrect in letting stand the lower appellate court’s decision where the lower court found that
probable cause to make a warrantless arrest of Kirk and his co-defendant, who were inside their
apartment, created an exception to the search warrant requirement to enter, seize them, and search
them.

An officer's speculation that evidence might be destroyed if persons in the apartment learned
of the officers’ presence is insufficient to prove an exigency or justify an exception to the warrant
requirement, where there is no evidence t.at the occupants knew the police were in the area until the
officers approached their door and forced entry. Under these circumstances, this Court's long-
standing decisions (see cases cited supra, pp. 6-7) which draw a “firm line at the entrance to the
home” should not be expanded and perverted to allow officers, after a three hour surveillance, to
enter an apartment and hold suspects inside a home without a warrant while another officer applies
for a warrant using some of the information the officers acquired during the entry.

ILLEGALITY OF THE WARRANTLESS SEARCH AND SEIZURE
ARGUMENT IN SUPPORT

The surveillance of the twenty unit apartment building on Washington Avenue in New
Orleans, based on anonymous information from a hotline tip, started around 5:00 p.m. The officers
did not know Kennedy Kirk and did not have a specific apartment targeted. Between 7:15 and 8:00
p.m., four people went to the door of Apartment 15, had brief exchanges, and left. The police

stopped the last one of the four, Leslie Butler, after Butler walked a block away and around the

7

corner. Butler was arrested for cocaine possession. At 8:15 p.m., six New Orleans Police Officers
went directly to Apartment 15 where they grabbed Paul Cook, who had stepped outside when he saw
them at the door. The officers pushed Cook inside and entered without a warrant of any kind.
Kennedy Kirk was inside.

Officer Brunet accurately admitted that “no magistrate or judge would have signed a warrant”
up to that point (Trial Tr. 21). The officers searched Kirk, finding a plastic medicine vial with fifty-
six rocks of cocaine in his underwear. A similar vial was found on Cook and a gun was found in the
chair where Cook was seated. The officers used information gained in the entry, including Kirk’s
identity, in the warrant application (See Warrant, App. 4; Mot. Tr.11, App. 3). Kirk and Cook were
handcuffed and held by six officers inside the apartment for over two hours. The warrant was signed
at 10:39 p.m. and executed at 10:40 p.m.(See Warrant, App. 4). Brunet admitted most of the
evidence had been seized by then (Trial Tr. 7). After the warrant was obtained, money was seized
from Kirk while mail and paraphernalia were seized from the apartment. After his Motion to
Suppress the Evidence was denied, the items seized before and after the warrant were used at trial
against Kirk.

The officers attempted to justify their actions on their baseless speculation that evidence
would be destroyed if the apartment occupants learned that Butler had been arrested (Mot. Tr. 13,
App. 3; Warrant, App. 4). There was no evidence that the apartment’s occupants had any inkling of
the surveillance or the police presence until the officers burst through the door. There was no
evidence that the location of Butler’s arrest could be seen from the apartment (See diagram, App. 5).
There was no evidence that Butler was to return to the apartment so that his absence might be

missed. There was no evidence that any known associate of Kirk had observed Butler’s arrest.

A majority of the Louisiana Supreme Court let stand a ruling of the Louisiana Fourth Circuit
Court of Appeal that disregarded the warrantless entry of the private residence because the vial of
cocaine was found on the person of Kennedy Kirk, rather than being removed from elsewhere in the

apartment. The lower appellate court purposely avoided the “long argument that there were not

exigent circumstances for entering the apartment without a warrant” See App. 2, p. 3, State v. Kirk

2000-KA-0190, 773 So.2d 259 (La. 4 Cir. 11/15/2000). The dissenters on the Louisiana Supreme
Court found that the State had not proven the existence of an exigency. See App. 1. State of
Louisiana v. Kennedy Kirk 2000-3395 (La. 11/9/01), 801 So.2d 1063.

The seizure and search of Kennedy Kirk’s body inside his apartment, the search of his
companion and his apartment violated the Fourth Amendment in these aspects: The officer admitted
that “no magistrate or judge would have signed a warrant” on the information he had before they
burst in. The officers made an investigatory stop inside the apartment without a warrant. The officers
made a warrantless entry and seizure of the apartment and its occupants. The officers claim of an
exigency based on the “possible” destruction of evidence is generalized, speculative, and not
supported by the facts. There was no valid ‘search incident to arrest’ exception as found by the lower
court where the officers said Kirk had not been arrested when the incriminating evidence was seized
and the entry to make the arrest was illegal. Moreover, the warrantless entry of the apartment and
search of Kennedy Kirk that occurred in this case was unreasonable.

Constitutional Protection of P in their H

While the Louisiana Court of Appeal correctly stated that the cocaine was seized from the

person of Kennedy Kirk, the lower appellate court missed a primary fact: Kennedy Kirk was inside

his private residence when it was entered without a warrant and he was seized. The police cannot

conduct an investigatory stop inside a home without a warrant. Kirk was handcuffed and held inside
the apartment by six officers for hours. His body was searched and a vial of cocaine was found in
his underwear. It is not as if the seizure and search of Kennedy Kirk was on a street corner where the
expectation of privacy, and coinciding constitutional protection, is significantly lessened.

This Court has long-recognized principles regarding the sanctity of the home, resulting in
the decision in Payton, 445 U.S. 573, ,which held that warrantless felony arrests in the home are
prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. Where the

lower appellate court specifically avoided the “long argument that there were not exigent

circumstances for entering the apartment without a warrant” See App. 2, p.3, Kirk, 773 So.2d 259,
the majority of the Louisiana Supreme Court erred in denying review of the decision (See App. 1).

The chief evil against which the Fourth Amendment is directed is warrantless entry and
search of a home United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297,
313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Payton, 445 U.S. at 585, 100 S.Ct. 1371; McArthur 531
U.S.326. Principled respect for the sanctity of the home has been upheld in many U.S. Supreme
Court decisions dealing with Fourth Amendment jurisprudence:

The Fourth Amendment embodies this centuries-old principle of respect for the

privacy of the home"; Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 63

L.Ed.2d 639 (1980): emphasizing "the overriding respect for the sanctity of the home

that has been embedded in gur traditions since the origins of the Republic"; Mincey

vy. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978): "[T]jhe Fourth

Amendment reflects the view of those who wrote the Bill of Rights that the privacy

of a person's home and property may not be totally sacrificed in the name of

maximum simplicity in enforcement of the criminal law. Wilson v. Layne, 526 U.S.

603, 610, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). |

A principal protection against unnecessary intrusions into private dwellings is the warrant

requirement imposed by the Fourth Amendment on agents of the government who seek to enter the

10

home for purposes of search or arrest. See Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct.
367, 368-369, 92 L.Ed. 436 (1948). “[S]earches and seizures inside a home without a warrant are
presumptively unreasonable." Payton. 445 U.S. at 586, 100 S.Ct. at 1380; Katz v. United States. 389
U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.’

In Welsh v. Wisconsin, 466 U.S. 740, the Court held that a warrantless, nighttime entry into
home to arrest an individual for driving while under the influence of an intoxicant was prohibited
by the Fourth Amendment. The Court considered the warrantless arrest in the home, not the
warrantless search of the home. The Court upheld its earlier decision in Payton, 445 U.S. 573. In
Payton, the Court explicitly refused "to consider the sort of emergency or exigent situation that
would justify a warrantless entry into a home for the purpose of either arrest or search." Id., at 583.
In Welsh, the Court found that warrantless entry of a home to arrest Welsh for driving while

intoxicated was not such an exigency, despite probable cause for the arrest.

‘See also Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 2045, 29 L.Ed.2d
564; Vale, 399 U.S. at 34, 90 S.Ct. at 1971; , 334 U.S. 699, 705, 68 S.Ct.
1229, 1232, 92 L.Ed. 1663 (1948); Michigan v. Clifford, 464 U.S. 287, 296-297, 104 S.Ct. 641, 646,
78 L.Ed.2d 477 (1984) (plurality opinion); Steagald v. United States, 451 U.S. 204, 211-212, 101
S.Ct. 1642, 1647-1648, 68 L.Ed.2d 38 (1981); McDonald, 335 U.S. at 456, 69 S.Ct. at193; Johnson,
333 U.S. at 13-15, 68 S.Ct., at 368-370; Boyd v, United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532,
29 L.Ed. 746 (1886); Minnesota v, Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998);
Oystead v. Shed, 13 Mass. 520 (1816); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5
L.Ed.2d 828 (1961); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797
(1968);United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) ("[P]rivate
residences are places in which the individual normally expects privacy free of governmental
intrusion not authorized by a warrant .... Our cases have not deviated from this basic Fourth
Amendment principle."); Payton, 445 U.S. 573,("The Fourth Amendment protects the individual's
privacy in a variety of settings. In none is the zone of privacy more clearly defined than when
bounded by the unambiguous physical dimensions of an individual's home.") Silverman v. United
States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)("At 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.")

11

~~

- et or ee eee oye

The first requirement for the search and seizure of an apartment and its occupants is that the
officers have probable ;ause. The ‘probable cause’ requirement is indispensable under any
circumstances. The second requirement for the search and seizure of a dwelling and its occupants
is that the officers have a warrant. The warrant requirement is dispensable if the State can prove that
there were exigent circumstances that prevented police from applying for a warrant. Probable cause

exists when "the facts and circumstances within the affiant's knowledge, and those of which he has

. reasonably trustworthy information, are sufficient to support a reasonable belief that evidence or

contraband may be found at the place to be searched." State v. Duncan, 420 So.2d 1105, 1108
(La. 1982).

Probable cause for the arrest or entry was not challenged in Welsh. In the case at bar, the
Louisiana Fourth Circuit Court of Appeal found probable cause for Kirk's arrest despite Officer
Brunet’s acknowledgment that he did not have probable cause for the entry (Trial Tr. 21). For
purposes of this writ application, the focus is not on whether the officers had probable cause either
to enter or arrest Kirk. The issue for the Court in this writ application is the question left unaddressed
in Payton: whether the officers had the sort of emergency or exigent situation that would justify their
warrantless entry into Kirk’s home for the purpose of either arrest or search. The three dissenting
judges on the Louisiana Supreme Court found insufficient proof of an exigency (App. 1).

The majority of the Louisiar.. “upreme Court let stand the lower court's finding that probable
cause for Kirk's arrest inside the apartment subverted the warrant requirement. The lower court
found that the existence of probable cause rendered noncompliance with the warrant procedure an
irrelevance. This finding is contrary to this Court's statement in Agnello v. United States, 269 U.S.
20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925) and Payton, 445 U.S. 573. In Payton, the constitutionality

12

of New York statutes that authorized police officers to enter a private residence without a warrant
and with force. if necessary. to make a routine felony arrest were challenged. The Court remarked
on,

[T]he long-settled premise that, absent exigent circumstances, a warrantless entry to
search for weapons or contraband is unconstitutional even when a felony has been
committed and there is probable cause to believe that incriminating evidence will be
found within. The constitutional protection afforded to the individual's interest ‘n the
privacy of his own home is equally applicable to a warrantless entry for the purvose
of arresting a resident of the house; for it is inherent in such an entry that a search for
the suspect may be required before he can be apprehended. An entry to arrest and an
entry to search for and to seize property implicate the same interest in preserving the
privacy and the sanctity of the home, and justify the same level of constitutional
protection. /d , at 587-588.

Since the Payton decision, arrests in a suspect's home have required a warrant, distinguishing them
from warrantless arrests in a public place. The lower courts in Louisiana erred in refusing to make
that distinction in this case.

The Court in Coolidge, 443 U.S. at 468 (citations omitted), reaffirmed the principle that

[N]o amount of probable cause can justify a warrantless search or seizure absent
‘exigent circumstances. Incontrovertible testimony of the senses that an incriminating
object is on premises belonging to a criminal suspect may establish the fullest
possible measure of probable cause. But even where the object is contraband, this
Court has repeatedly stated and enforced the basic rule that the police may not enter
and make a warrantless seizure.

In Johnson. Justice Jackson eloquently explained the warrant requirement in the context of
a home search:

The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate instead of being judged by
the officer engaged in the often competitive enterprise of ferreting out crime.... The
right of officers to thrust themselves into a home is ... a grave concern, not only to
the individual but to a society which chooses to dwell in reasonable security and

13

freedom from surveillance. When the right of privacy must reasonably yield to the
right of search is, as a rule, to be decided by a judicial officer, not by a policeman or
government enforcement agent. 333 U.S., at 13-14, 68 S.Ct., at 369.

Kennedy Kirk was inside his apartment at the time the police entered with neither a search warrant
or an arrest warrant. His warrantless arrest in his apartment, regardless of probable cause, required
a warrant issued by a neutral magistrate or a proven exigent circumstance. The decision by the lower
courts in Louisiana is wholly incorrect in that probable cause to arrest cannot subvert the primary
purpose of the Fourth Amendment.

In Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Supreme
Court considered whether use of heat sensing technology to detect marijuana growth for distribution
was a “search” of the private interior of a home, thus requiring both probable cause and a warrant.
In the case at bar, the officers went further in their intrusion, and used physical force, not technology
to invade Kisk’s apartment. Then they applied for 0 wanant using some of the information they
acquired from the warrantless entry (Mot. Tr. 11, App. 3; Warrant, App. 4). Their illegal entry also
was a ‘search’ under the Kyllo definition:

In Silverman, for example, we made clear that any physical invasion of the structure

of the home, “by even a fraction of an inch,” was too much, 365 U.S., at 512, 81

S.Ct. 679, and there is certainly no exception to the warrant requirement for the

rug on the vestibule floor. In the home, our cases show, all details are intimate

details, because the entire area is held safe from prying government eyes. /d, 121
S.Ct. at 2045. .

One of the three dissenting judges of the Louisiana Supreme Court in the case at bar quoted.
without citing, a passage from Payton that this Court also cited in Kyllo,

[T]he Fourth Amendment draws "a firm line at the entrance to the house,” Payton.

445 U.S., at 590, 100 S.Ct. 1371. That line, we think, must be not only firm but also

14

bright--which requires clear specification of those methods of surveillance that
require a warrant.” (emphasis added)(See App. 1).

Despite the diversity of opinions in Kyllo, all members of the Court agreed with the continued
sanctity of the privacy of the home.

The decision in Trupiano 334 U.S. 699, has been reconsidered several times, but never
entirely overruled. In discussing the difference between warrantless police action and police action
under the authority of a warrant, the Court in Trupiano stated,

A search warrant must describe with particularity the place to be searched and the

things to be seized. Without such a warrant, however, officers are free to determine

for themselves the extent of their search and the precise objects to be seized. This is

no small difference. It is a difference upon which depends much of the potency of the

nght of privacy. And it is a difference that must be preserved even where contraband

articles are seized in connection with a valid arrest. /d., at 710.

When the six officers entered Kennedy Kirk's apartment, they had not determined who or
what would be the subject of their search. They had conducted only a three hour surveillance,
initiated by non-specific, anonymous information pertaining to the entire twenty unit apartment
building. They knew nothing of Apartment 15 or its occupants. Their observations of suspected drug
transactions at the door of Apartment 15 might have been enough to apply for a warrant, but even
Officer Brunet admitted at that point, “no judge or magistrate would have signed a warrant” (Trial
Te. 21), Rastreny was to endoen ingumdedii trestignayy axp Conte, Gociieay anyens
an illegal search to gain information for the warrant application. It cannot be condoned.

Warrantiless Entry Requires Recognized Exigency

In McDonald, 335 U.S. 451, the Court held that a search without a warrant demands
exceptional circumstances which must be obvious. The most basic constitutional rule in this area,
as found in Coolidge, supra, is that:

15

[SJearches conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the Fourth Amendment--subject only to

a few specifically established and well delineated exceptions.’ The exceptions are
‘yealously and carefully drawn,’ and there must be ‘a showing by those who seek
exemption * * * that the exigencies of the situation made that course imperative.’
(T)he burden is on those seeking the exemption to show the need for it. 403 U.S. at
481.

See also State v. Welch, 449 So.2d 468 (La. 1984), as cited by the dissenting judge of the Louisiana
Supreme Court in this case. See App. |.

Exigent circumstances are exceptional circumstances which, when coupled with probable
cause, justify an entry into a “protected” area that without those exceptional circumstances would
be unlawful. The exceptions are few in number and well delineated in order to protect an individual's
right to be free from governmental interference. United States v. United States District Court. 407
U.S. at 318, 92 S.Ct. at 2137; Thompson 469 U.S. 17. Indeed, the Court has recognized only a few
such emergency conditions.‘ The Court has actually applied only the "hot pursuit" doctrine to arrests
in the home. See Santana, 427 U.S. at 42-3. Additionally, the police bear a heavy burden when
attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Vale, 399
U.S. at 35; State v. Hathaway, 411 So.2d 1074, 1079 (La. 1982); Welch, 449 So.2d at 470.

In the case at bar, Officer Brunet admitted that he did not have the initial probable cause
sufficient for obtaining the warrant until after the illegal entry had been made (Trial Tr.21). In effect,

he conducted an investigatory stop inside the home. The lack of an exigency would not be the

‘See, e.g., United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-2410, 49
L.Ed.2d 300 (1976) (hot pursuit of a fleeing felon), Warden v. Hayden, 387 U.S. 294, 298-299, 87
S.Ct. 1642, 1645-1646, 18 L.Ed.2d 782 (1967) (same); Schmerber v. California, 384 U.S. 757,
770-771, 86 S.Ct. 1826, 1835-1836, 16 L.Ed.2d 908 (1966) (destruction of blood evidence);
Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978) (ongoing fire) .

16

primary illegality of the officers’ action’. Nonetheless. this petition will consider whether there is
an established exigent circumstance in this case that would justify Brunet’s intrusion into Kirk's
apartment.

l#McDonald. 335 U.S. 451, the officers conducted a surveillance of a suspected numbers
operation for several months. On the day of the arrest three police officers surrounded the boarding
house where McDonald had a room. They did not have a warrant for arrest nor did they have a
search warrant. One of the officers thought that he heard an adding machine, frequently used in a
numbers operation. Believing that the numbers game was in progress, the officers demanded entry
after observing McDonald and the operation through a transom. McDonald and others in the room
were arrested and the contents of the room were seized.

In McDonald. the prosecution failed in its attempt to build the lawfulness of the search on
the lawfulness of the arrest and therefore justify the search and seizure without a warrant. /d
Liouten,entanicenntemecenefecnangatitity tadiined Unabenn dint enaiene
with the circumstance of Kirk's ‘lawful’ arrest, falls short. The Court in McDonald said,

We are not dealing with formalities. The presence of a search warrant serves a high

function. Absent some grave emergency, the Fourth Amendment has interposed a

magistrate between the citizen and the police. This was done not to shield criminals

nor to make the home a safe haven for illegal activities. It was done so that an
objective mind might weigh the need to invade that privacy in order to enforce the

“Similarly, in Coolidge. the Court noted,

With respect to searches and seizures carried out on a suspect's premises, the conflict
has been over the question of what qualifies as an ‘exigent circumstance.’ It might
appear that the difficult inquiry would be when it is that the police can enter upon a
person's property to seize his ‘person ... papers, and effects,’ without prior judicial
approval. The question of the scope of search and seizure once the police are on the
premises would appear to be subsidiary to the basic issue of when intrusion is
permissible. But the law has not developed in this fashion. 403 U.S. at 443.

17

In Kirk's case, there was no arrest warrant and no search warrant. The officers testified that
there was no “search” and the occupants were not arrested until Officer Brunet returned with the
search warrant (Mot. Tr. 2. App. 3). The officers testified that they entered the apartment, seized the
occupants and conducted a “frisk” for weapons for their safety (Mot. Tr. 5.14-5. App. 3). The small
medicine bottle taken from Kirk's underwear and opened to reveal rocks of cocaine could not have
been mistaken for a weapon. Thus, the Court of Appeal’s conclusion that the search was justified
as “incident to arrest” is not supported by the evidence.

In the companion case decided with Payton, 445 U.S. 573, four officers went to Riddick’s
address without a warrant for the arrest of Riddick for armed robbery. Riddick’s young son opened
the door and the officers entered the house and placed him under arrest while he sat in bed. Before
permitting him to dress, they opened a chest of drawers two feet from the bed in search of weapons
and found narcotics and related paraphernalia. Riddick was subsequently indicted on narcotics
charges. In Riddick. (See Payton 445 U.S. 573), the lower courts upheld the search as incident to
arrest under Chimel, 395 U.S. 752. The lower appellate court in Louisiana made the same erroneous
finding in the instant case. This Court reversed in Riddick, and should reverse again in the case at
bar.

Similarly, the “plain view” exception i the warrant requirement does not apply. The key
prerequisite to the "plain view" exception to the warrant requirement is that the police have a right
to be where they were when they inadvertently observed the articles. Further, the seized articles also
must clearly be contraband when they first appeared in the officer's "plain view". State v. Landry,
414 So.2d 674 (La. 1982). None of these prerequisites were met under the circumstances of this

case. as the officers did not have a right to enter the apartment and seize Kennedy Kirk without a

19

warrant. The evidence seized from Kennedy Kirk was seized from his person and was not in plain
view. The medicine bottle was not obviously contraband.

in Trupiano, 334 U.S. 699, the agents’ entry on to the farm to find an illegal alcohol
enterprise was with the consent and in the accompany of Kell, the lessor, thus the Court found that
the arrest of the defendant was lawful as he was committing a felony in the agents’ presence, but the
Court refused to find that all of the agents’ subsequent actions were incident to that arrest and
justified by the plain view exception. In Trupiano, the Court found no excuse for the failure of the
agents to obtain a warrant before entering the property, and that the mere fact that a suspect was
arrested in the proximity of the still provided no ‘exigent circumstance’ to validate a warrantless
seizure. Jd. The scope of the intrusion was limited to that necessary to make the valid arrest. The fact

that at the time of the arrest the still was in plain view and nearby was therefore irrelevant.

It is significant to note that in the case at bar, the officers did not claim either the ‘search
incident to arrest’ or ‘plain view’ exception. The lower court came up with these exceptions on its
own. The ‘search incident to arrest’ and ‘plain view’ exceptions are not panaceas to justify an illegal
search after the fact. Briefly addressing the other recognized exigencies, there was no evidence to
indicate that the officers were in hot pursuit of anyone who had entered the apartment. They had
safely stopped Butler, a mere visitor to the apartment, who had not been inside. Butler was stopped
at a safe distance and out of the view of the apartment (See diagram, App. 5). The officers did not
know who was in the apartment or whether there were still drugs in the apartment. They clearly
entered the apartment to seize it, its occupants, and its contents, whatever and whoever they might

be. They gave no reason why the surveillance could not have been maintained while a search warrant

20

was obtained, during which time any occupants who left could have been “taken down” at a distance
from the apartment.

In Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the Court
rejected a "murder scene excepticn" to the warrant requirement, but approved a cursory check for
additional victims. The Mincey decision reaffirmed that “A warrantless search must be "strictly
circumscribed by the exigencies which justify its initiation.” /d., citing Terry v. Ohio. 392 U.S. 1.
25-26, 88 S.Ct., at 1882, 20 L.Ed.2d 889 (1968). The Court in Mincey found that even the “vital
public interest in the prompt investigation of an extremely serious crime [or the] mere fact that law
enforcement may be made more efficient” could not vitiate the warrant requirement. /d

In Vale 399 U.S. 30, the Court held that absent a demonstrable threat of imminent destruction
of evidence, the authorities may not enter a residence in order to preserve that evidence without a
warrant.” In Vale, the officers had two arrest warrants for Vale, who was believed to be residing at
a specified address. During a surveillance, they observed Vale come out of the house and make an
exchange with the driver of a car, a known narcotic addict. They arrested Vale and the driver. The
officers informed Vale they were going to search the house, took him inside, made a cursory
inspection of the house to ascertain if anyone else was present, then searched a rear bedroom,
revealing a quantity of narcotics. The Louisiana Supreme Court held that the search of the house did
not violate the Fourth Amendment because it occurred ‘in the immediate vicir ‘ty of the arrest’ and

was ‘substantially contemporaneous therewith’. /d_ In the case at bar, despite this Court’s holding

* See also United States v. Jeffers, 342 U.S. 48, 51-52, 72 S.Ct. 93, 95-96, 96 L.Ed. 59
(1951); McDonald, 335 U.S. at 454-455, 69 S.Ct. at]92-193; Johnson 333 U.S. at 13-15, 68 S.Ct.
at 368-370.

21

——.
oa

in Vale, the majority of the Louisiana Supreme Court erroneously let stand the same reasoning by
the lower appellate court in this very similar situation.

Writing in concurrence in McDonald, Justice Jackson explained why a finding of exigent
circumstances to justify a warrantless home entry should be severely restricted:

When an officer undertakes to act as his own magistrate, he ought to be in a position

to justify it by pointing to some real immediate and serious consequences if he

postponed action to get a warrant. 335 U.S. at 459-460, 69 S.Ct. at 195-196.

The only exigency offered by Officer Brunet for their intrusion into Kennedy Kirk’s apartment
without a warrant was Brunet’s conjecture as to the possible destruction of evidence. There is
nothing in the law that allows the officers to create, concoct, or speculate an emergency situation to
avoid the warrant requirement. Officer Brunet’s generalization that because drugs were suspected
of being in the apartment, they might be destroyed if the occupants learned of the police presence
is too far removed and not strictly circumscribed so as to create an exigency for his illegal,
warrantless entry. The State’s lack of proof of the ‘destruction of evidence’ exigency, as noted by
the dissent in the Louisiana Supreme Court is discussed hereinafter (See App. 1).

There is no exception that allows officers to seize an apartment or residence while they apply
for a warrant to search the apartment without probable cause or without one of the recognized
exigencies.” Where a person is seized inside a residence after warrantless, illegal entry, no exception
legitimizes the seizure of evidence simply because it is found directly on a person. The Louisiana

Fourth Circuit Court of Appeal erred in finding a new “personal property” exception to the warrant

Unfortunately, the police practice in this case is not an anomaly in New Orleans. An
application for review is currently pending in the Louisiana Supreme Court for a warrantless search
and seizure under nearly identical circumstances. See State v. McCoy et al. Louisiana Supreme Court
No. 2001-K-1027, filed April 11, 2001, still pending.

22

requirement and affirming the trial court’s denial of the Motion to Suppress the Evidence. The
majority of the Louisiana Supreme Court erred in letting the lower court's decision stand. without

review. This Application for Writ must be granted.

Under the circumstances presented by Officer Brunet, there was no probable cause to believe
that the evidence in the Washington Avenue apartment was at risk of destruction. The police
officers’ belief that their stop of Butler in front of the restaurant around the corer might have alerted
the occupants of the apartment that police were in the neighborhood is too tenuous to support the
warrantless entry and seizure. The information obtained in the brief surveillance of the apartment
in the case at bar cannot support the officers conclusions. The officers had no information as to the
number of occupants in the apartment, the nature of the operation, or even if there was more
evidence in the apartment that could be subject to destruction.

In the search warrant application, Brunet explained the seizure of the apartment: “The
detectives immediately secured the apartment do (sic) to the exigent circumstance, based on the
amount of foot traffic in the area, and believing that word of the arrest would get back to the
occupants of the apartment, and vital evidence would be destroyed.” See App. 4. The surveillance
vehicle was forty yards from the apartment for three hours, apparently without fear of detection and
without having an effect on the neighborhood activities, despite the ‘amount of foot traffic’. There
was no evidence that anyone was acting as a ‘look out’. There was no evidence that Butler's arrest
caused a disturbance. There is no evidence that the occupants of the apartment knew that Butler was
arrested or the police were in the neighborhood. There is no evidence that Butler tried to alert the

occupants of the apartment that t poe were in the neighborhood. As the burden was on the State to

23

show that the exigency makes the seizure ‘imperative’, the officers should have provided any factual
evidence for their conclusion that the evidence might be destroyed.

Police officers are allowed to enter dwellings and seize them where there is proof of
imminent danger of destruction of evidence. Vale, 399 U.S. 30. In this case, the State’s evidence did
not justify the warrantless search where only a generalized “possibility” of destruction of evidence
was claimed by Officer Brunet. The State did not prove the ‘destruction of evidence” exigency (See
App. 1, Kirk 801 So.2d 1063). To validate the invasion of the sanctity of the home and overcome
the presumption of unreasonableness that attaches to all warrantless home entries, the burden of
proof was on the State to show that there was an exigent circumstance and particular need. Vale, 399
U.S.at 34; State v. Thompson 466 So.2d 39 (La. 1985), on remand Thompson v. Louisiana, 469 U.S. —
17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984), 448 So.2d 666 (La.1984); Payton 445 U.S., at 586, 100
S.Ct., at 1380.

In the instant case, the State did not meet its burden of proving an exigency that justified the
warrantless entry of the apartment and seizure of Kennedy Kirk. There is no exception that allows
officers to seize an apartment or residence while they apply for a warrant to search the apartment
because it is expedient. The officer’s claim of risk of destruction of evidence was not established,
as noted by the dissent to the Louisiana Supreme Court's denial of review:

Pursuant to La.Code Crim. Proc. art. 703, the state has the burden of proof on the

admissibility of evidence seized without a warrant. Here, the defendant was arrested

inside an apartment, without a warrant, and the state has not demonstrated that

exigent circumstances were present. Consequently, defendant's arrest was

unconstitutional, and his motion to suppress should have been granted. See App. 1.

Contrary to the Louisiana Court of Appeal’s conclusion that the search was permissible as

“incident to arrest”, which was let stand by the majority of the Louisiana Supreme Court, the officers

24

did not testify that Kennedy Kirk was arrested before he was searched. Instead, they claimed that
their warrantless acts were based on a fear that evidence would be destroyed. Tike exigency.
however, is not supported by the evidence. The officers did not know that there was evidence in the
apartment. Also, the officers did not know that anyone in the apartment had a means of learning of
the “takedown”. To use the exigent circumstance alleged by the officers, where they would be
allowed to enter into dwellings without a warrant for the purpose of arrest or seizure, the
circumstances must show: lack of sufficient time to prepare an affidavit and locate a magistrate to
obtain warrant after probable cause arises; imminent danger of destruction of evidence; and the
possibility of escape. Welch 449 So.2d at 470; App. 1, Kirk 801 So.2d 1063, dissent.

The State's evidence did not prove the officers’ claimed fear of destruction of evidence was
reasonable or that any of the other exigencies existed. Though Officer Brunet gave his generalized
belief that evidence might be destroyed, he provided no facts that would have put the apartment
occupant on alert that the apartment was under police scrutiny. The officer did not explain why or
how he thought the people in the apartment would come by information about the arrest of Butler,
one of the suspected buyers. Accordingly, the search and seizure of Kennedy Kirk and his apartment
were conducted unlawfully.

In United States v. Rubin, 474 F.2d 262 (3rd Cir. 1974) cert. denied, 414 U.S. 833, 94 S.Ct.
173, 38 L.Ed.2d 68 (1973), the court listed circumstances which might lead police officers to
reasonably conclude that evidence would be destroyed or removed before they could secure a search
warrant:

1) The degree of urgency involved and the amount of time necessary to obtain a

warrant,

2) Reasonable belief that the contraband is about to be removed;

25

3) The possibility of danger to police officers guarding the site of the contraband
while a search warrant is sought;

4) Information indicating the possessors of the contraband were aware that the police
were on their trail; and

5) The ready destruction of the contraband and the knowledge and efforts to dispose
of narcotics and escape are characteristic behavior of persons engaged in narcotics
traffic. /d., at 268-9 (citations omitted).

Further, the police officer subjective beliefs must be supported by the evidence. See United States
y. Thompson, 700 F.2d 944 (Sth Cir.1983) and United States v. Scheffer, 463 F.2d 567 (Sth
Cir.1972), cert. denied 409 U.S. 984, 93 S.Ct. 324, 34 L.Ed.2d 248 (1972).

Applying the Rubin factors to the State’s case against Kennedy Kirk, the ‘destruction of
evidence’ exigency was not established. First, there appeared to be no urgency in the officers’
actions. They started the surveillance at daylight, around 5:00 p.m. (Tr. 2,18-20). They entered the
apartment around 8:15 p.m. They did not apply for the warrant until 10:30 p.m. (Tr.18-20,51-4).
There is no evidence that the officers had a reasonable belief that the contraband was about to be
removed. It was supposition on their part. They did not testify that they were in any danger in
watching the apartment. Indeed, they said they were within a very short distance to the door. There
was no evidence that the occupants of the apartment knew or had any way of knowing about the
surveillance. Lastly, the officers described only one means of entry or exit from the small apartment
so that destruction or escape without detection by the surveilling officers would have been
impossible. Officer Brunet’s testimony does not establish the exigency that made the illegal entry
and seizure “imperative”.

In Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the Court
expanded on Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), where

the Court held that the Fourth Amendment does not permit a blanket exception to knock-and-

26

announce requirement for felony drug investigations based on a bald assertion of the possible
destruction of drugs. The Court required a case by case analysis of the reasonableness of the officers’
decision not to knock. The Court held that “[i}n order to justify a "no-knock" entry, the police must
have a reasonable suspicion that knocking and announcing their presence. under the particular
circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of
the crime.” /d. at 394.

In Richards, the Court warned against the —— we of risks for the purpose of
alleviating the officers’ duty to act within constitutional parameters. The Court suggested that where
risks and exigencies could be lessened by another investigatory method, that route should be taken.
Id. at n. 4. The Court held that the police are required to announce their presence in the execution
of a warrant, unless the police establish a compelling reason not to make their presence known.

The importance of the no-knock cases to the issue before the Court in the instant case is
beyond question. Generalized exceptions to the “knock” rule in narcotics cases were rejected in both
Richards and Wilson. The Richards and Wilson decisions show then, that in warrantless searches
or seizures, the officers must have similarly compelling reasons, not just the general fact that
narcotics may be involved, to claim the “destruction of evidence” exigency. /d Thus, this
Application for Writ should be granted.

Turning to our case, Brunet and the other police officers created the exigency by deliberately
having Butler, the alleged buyer, stopped within one hundred yards of the apartment. There was no
evidence as to why the surveillance of the apartment could not have been maintained until the search
warrant was obtained. There was no testimony about the time it would take to get a warrant. Instead,

the officers set up a “take down” of Butler and a contemporaneous warrantless entry of Kirk’s

27

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ws 43
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Be i-
eo Le
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apartment. These was no evidence that the sits of Buter’s exmest was chesreahile tems Gaiman
Without any indication that the occupants had any means of learning of Butler’s arrest, the police
officers went to the door of the apartment and made a forced entry. They seized Kirk, items on his
person, and items in the apartment. This deliberate action was violative of the Fourth Amendment.
The Louisiana lower court erred in ignoring the illegality of the officers’ /acts and their taint on the
later search of Kennedy Kirk’s personal effects.

In United States v. Capote-Capote, 946 F.2d 1100 (Sth Cir. 1991), cert. denied 504 U.S. 942,
112 S.Ct. 2278, 119 L.Ed.2d 204 (1992), an undercover sale went awry and justified the officers’
entry and seizure for the protection of the undercover participants. In the instant case, the operation
went exactly as planned, including the “take down” of Butler as planned by the officers. There was
no testimony that anyone in the apartment had any knowledge of the takedown. The officers’
speculation was not supported by the evidence. Their claimed exigency was too far removed from
fact and speculative to support the warrantless entry of the apartment.

The Court considered the issue of warrantless entry of a residence in Segura, 468 U.S. 796.
In Segura, the Court held that securing a dwelling, on the basis of probable cause, to prevent the
destruction or removal of evidence while a search warrant is being sought is not itself an
unreasonable seizure of either the dwelling or its contents but at the same time, the Court reaffirmed
that, “absent exigent circumstances, a warrantless search--such as that invalidated in Vale v.
Louisiana, 399 U.S. 30, 33-34, 90 S.Ct. 1969, 1971-1972, 26 L.Ed.2d 409 (1970)--is illegal.” /d.
at 810 (emphasis added).

In Segura, unlike the case at bar, the agents had abundant probable cause from weeks of

surveillance, in advance of their entry, to believe that there was a criminal drug operation being

28

carried on in Segura’s apartment . They also had information that Segura probably had more cocaine
in the apartment. Under those circumstances, not present in the case at bar, the officers in Segura had
good cause to believe evidence might be destroyed. The Court, in Segura, ruled out the officers’ bad
faith and considered the situation that happened in the case at bar unlikely:
“In the first place, an entry in the absence of exigent circumstances is illegal. We are
unwilling to believe that officers will routinely and purposely violate the law as a
matter of course. Second, as a practical matter, officers who have probable cause and
who are in the process of obtaining a warrant have no reason to enter the premises
before the warrant issues, absent exigent circumstances which, of course, would
justify the entry. Third, officers who enter illegally will recognize that whatever
evidence they discover as a direct result of the entry may be suppressed, as it was by
the Court of Appeals in this case. Finally, if officers enter without exigent
circumstances to justify the entry, they expose themselves to potential civil liability
under 42 U.S.C. § 1983. /d. at 811-2 (citations omitted)
The situation in the case at bar is inapposite to these basic underlying principles or the facts of
Segura. /d In Segura, the Court recognized that the interception of the persons who were to deliver
cocaine to the apartment may have alerted the apartment occupants and led to the removal or
destruction of evidence. The Court did not find the speculation under those circumstances too far
fetched. Unlike the seized persons in Segura, Butler was not known to be involved in an operation
with Kirk. Thus, the Court’s conclusions in Segura are not applicable to the case at bar.

The lower courts sustained Officer Brunet’s confusion of probable cause with exigent
circumstance: “Once it was confirmed that crack cocaine was being sold from that location, we
secured the premises due to this exigent exigent circumstances and obtained a search warrant for
the target location” (Mot. Tr. 3-4). This testimony shows that Brunet believed finding cocaine on
Butler gave him both probable cause for the arrest and an exigency to enter the apartment without

a warrant. He did not initially state that Butler’s arrest created the exigency. It was not until Officer

29

5 ton.
ott
:

Brunet was pressured to explain his determination of an exigency that the officer offered another se 3

conclusory statement: “The exigent circumstances believing that the illegal contraband could be
destroyed.”...““Once information that we had actually detained someone that left the apartment —we
thought the information would get back to them and they would destroy the contraband.” (Mot. Tr.
13). This information was also included in the affidavit that was used later to obtain a warrant (App.
4). However, the officer’s insistence on that conclusion cannot be sustained. The basis of their
conclusion is just a speculation that the occupants might learn of the stop and that they might
destroy evidence as a result. It was certainly not proof that the alleged evidence was in the process
of destruction which was required to support a warrantless entry.

The Court in McDonald found that the officers’ claim of an exigency had to be supported by
the evidence 355 U.S. 451. The inconvenience or undesirable delay in getting a warrant is not such
an exigency that will allow the constitutional barrier that protects the privacy of the individual to be
hurdled so easily. In McDonald, as in the case at bar, the officers’ observations on the scene gave
them “adequate grounds for seeking a search warrant”, but not adequate grounds for entering the
apartment without a warrant and securing one later. /d. In the instant case, the circumstances bearing
qn deems weet inncuinbis tients,

In Ker_v. California, 374 U.S.23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Court
considered only whether there was a valid search incident to arrest after a warrantless entry with a
passkey from the landlord. The Court specifically did not look at any other issues (e.g. the validity
ef to cny) Oa wean quifadly uintinKa’e writ application. Importantly, the Court in Ker
noted that state law validated the officers’ means of entry, and under federal law the officers’ entry

by use of a key obtained from the manager was permissible. Furthermore, the Court found that Ker’s

30

furtive conduct in eluding police shortly before the arrest was grounds for the belief that Ker might
well have been expecting the police or destroying evidence.*

To claim the “destruction of evidence” exigency the first step logically must be to show that
the apartment occupants were aware of the police presence so as to cause the reaction of feared
destruction. The State of Louisiana failed to establish that Kirk or his companion had any way of
learning about the arrest of an alleged buyer around the corner from the apartment (See diagram,
. App. 5). In the case at bar, Butler, who was stopped out of view of the apartment, was not expected
back at the apartment. Thus, the State failed to establish the reasonableness of the officers fear of
“destruction of evidence”.

In another case, the Court held that a warrantless search or seizure may not be allowed even
when there is an exceptional circumstance under which the necessary evidence is in the process of
destruction Welsh 466 U.S. 740. After officers observed Welsh driving erratically, Welsh parked
his car and walked home. The police officers arrived, entered his house and arrested Welsh without
a warrant. The officers insisted that the warrantless entry and arrest were necessary because of the
destruction of evidence. The Court did not accept the diminution of Welsh’s blood alcohol level or
destruction of evidence as an exigency, at least where the alleged crime was a misdemeanor. /d.

In the case at bar, like Welsh, there was no immediate threat to the public safety. No

occupants attempted to leave the apartment. There were six to eight officers available who could

*A concurring opinicn in Ker noted: “The test under the ‘fresh pursuit’ exception depends not,
of course, upon mere conjecture whether those within ‘might well have been’ expecting the police,
but upon whether there is evidence which shows that the occupants were in fact aware that the police
were about to visit them. The Kers’ lack of reaction when the officers entered and the obviousness
of the evidence lying about are indicators that they were oblivious to the officers’ presence. “

31

.%
x

have kept the apartment under cbeervetion while Officer Brunet tempted to obtain 6 Samus ee
was no evidence that someone was injured or at risk inside the apartment. See Mincey. There was :
no evidence, only conjecture, that the supposed contraband inside, if any, might be destroyed. The
offense of possession with intent to distribute cocaine is serious, but so is a warrantless entry into
a home. The lower Louisiana appellate courts erred in affirming the denial of the Motion to Suppress
the evidence from the illegal entry and seizure, both before and after the warrant.
Officers’ Actions were Not Reasonable

The New Orleans Police Department exploited the recognized exigencies and violated the
Fourth Amendment when they enteved Kisk's epastment without e wamant. Uhew eotens wise at
reasonable. At the point of entry, they had information to use for a warrant application only. They
made an investigatory stop inside the apartment. They had no recognized exigency on which to rely
for the warrantless entry. Their illegal actions tainted the arrest, search, seizure, and warrant.

The Fourth Amendment says that the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S.
Const. amend. IV. Its “central requirement” is one of reasonableness. Texas v. Brown, 460 U.S. 730,
739 (1983). In order to enforce that requirement, the Court has interpreted the Amendment as
cchbttchien wilen coh iamanatiens Getneh 0 cian eniendtten ateinien diana
may significantly intrude upon privacy interests. The Court in Payton, said,

Unreasonable searches or seizures conducted without any warrant at all are

condemned by the plain language of the first clause of the Amendment...... Without

pausing to consider whether that broad language may require some qualification, it

is sufficient to note that the warrantless arrest of a person is a species of seizure
required by the Amendment to be reasonable. 445 U.S. 585 (citations omitted).

32

Recently, 'n United States v. Knights, - U.S.-, 122 S.Ct. 587 (2001), Knights was convicted
on evidence seized during a warrantless search of his apartment by his probation officer. The Court
only had to determine that the search was reasonable as the warrant requirement was waived by the
probation condition. The Court said:

The touchstone of the Fourth Amendment is reasonableness, and the reasonableness

of a search is determined "by assessing, on the one hand, the degree to which it

intrudes upon an individual's privacy and, on the other, the degree to which it is

needed for the promotion of legitimate governmental interests. /d. at 588 (citations

omitted).

The Court concluded that Knights’ status as a probationer affected both sides of that balance and
allowed a search on reasonableness, rather than probable cause.

In the instant case, the sanctity of Kirk’s home was invaded. It is the most protected area,
where he had the highest expectation of pnvacy. The state interest in the warrantless intrusion was
one of convenience and expediency. The allegation of “destruction of evidence” was speculative and
unsupported by the evidence. Applying the reasonableness test set forth in Knight, the officers’
action against Kirk were unreasonable. /d.

Candidly, Officer Brunet admitted, “no judge or magistrate would have signed the warrant”
on the information that they had before entry was made (Trial Tr. 21). Brunet’s testimony was the
strongest of the t’ -e officers yet he could only claim the ‘possibility’ that evidence might be
destroyed (Mot. Tr. 6) based on the stop of the fourth suspected buyer “in relatively close proximity
to the target location” (Mot. Tr. 3, App.3). Brunet did not say that there was any way that the location
of the stop could be viewed from Kirk’s apartment. He did not claim that Butler, knew Kirk or was
expected to return to the apartment so that Butler’s absence might arouse Kirk’s suspicion. He did

not say that there were bystanders who observed Butler’s arrest and could alert Kirk. Brunet gave

33

only his generalized conclusion that he had an exigent circumstance (Mot. Tr. 4, App. 3). TheCout
considered the officer's actions of holding the suspect outside of his home for about two hours while
other officers applied for a warrant in_ McArthur, 531 U.S. 326, cited p.11. McArthur’s wife went
to the home, in the company of officers, to get her belongings after a domestic dispute. The officers
had probable cause to believe that McArthur had hidden marijuana in his home because of
information they obtained from his wife. When the officers were denied access to the home by
McArthur, one officer held McArthur on the porch while the other went with the wife to get a
warrant. Twice, the officer waited in the doorway and watched McArthur when he went inside to
get cigarettes or make phone calls. The execution of the search warrant revealed a pipe, box and
marijuana. The Court in McArthur noted:

“Moreover, the restraint at issue was tailored to that need, being limited in time

and scope, cf. Terry v. Ohio, supra, at 29—30, and avoiding significant intrusion

into the home itself, cf. Payton v. New York, 445 U.S. 573, 585 (1980)...

Consequently, rather than employing a per se rule of unreasonableness, we balance

the privacy-related and law enforcement-related concerns to determine if the

intrusion was reasonable. Cf. Delaware v. Prouse, 440 U.S. 648, 654 (1979)

(determining lawfulness by balancing privacy and law enforcement interests); United

States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). 121 S.Ct. at 950.

The Court found the restriction of McArthur on the porch was reasonable, and hence lawful,
in light of the following circumstances: 1) the police had probable cause to believe that McArthur’s

trailer home contained evidence of contraband, based on first hand, reliable information from his

. wife; 2) the police had good reason to fear that McArthur would destroy the drugs before they could

return with a warrant because McArthur knew his wife and police had been at the tra‘'er; 3) the
police neither seazched the trailer nor arrested McArthur before obtaining a warrant. Rather, they

imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer

34

unaccompanied. They left his home and his belongings intact-until a neutral Magistrate, finding
probable cause, issued a warrant; 4) the police imposed the restraint for a limited period of time. See
Id

Applying the McArthur factors to the officers’ actions in regard to Kennedy Kirk's
apartment, the privacy-related concerns outweigh the law enforcement-related concerns and the
officers’ intrusion was unreasonable. First, Officer Brunet admitted that “no judge or magistrate
would sign a warrant” on the information he had before the entry of the apartment. The officers in
this case had no facts indicating that there were drugs in the apartment. There was only a three hour
surveillance and four alleged transactions, not indicative of a large scale guaien. Police did not
know who or what was inside Apartment 15. There had been no particular allegations about the
apartment from their anonymous, hotline tip. There is no evidence that the officers knew Kirk, Cook,
or Butler. The officers lacked probable cause to believe there were still drugs in Apartment 15,

unlike McArthur where the wife saw drugs in McArthur’s trailer.

Second, the police had no good reason to fear that, unless the apartment was immediately

entered, seized and restrained, that the evidence would be destroyed. Indeed, the circumstances
indicate the contrary. The officers stayed outside the Washington Avenue apartment building for
over three hours, seeing alleged transactions only during the last hour. They did not know if there
were anymore drugs in the apartment, so they could not predict evidence destruction. There was
nothing indicating that anyone in the apartment knew of But!er’s arrest. There was no good reason
to fear that the drugs inside the apartment, if any, would be destroyed. In contrast, in McArthur, the
officer had confronted McArthur about his wife’s allegation that he had drugs and McArthur saw

his wife leave with the officer.

35

Third, in the instant case, the police made no reasonable efforts to reconcile their law

enforcement needs with the demands of personal privacy. Even with six to eight officers on the _
scene, they did not consider maintaining the surveillance while getting the warrant. Continuing
surveillance would have satisfied their law enforcement needs. Unlike McArthur, they entered the
apartment and seized Kirk and Cook, handcuffed and searched them and seized everything in view.
Whereas in MeAather, the Court found it significant that the officers remained outside, McArthur
was not restrained, but was allowed supervised access to the home, and the officers in McArthur “left
Ads heme and bis bidanainns tetnet~cndll ¢ anmnad Muapantn, Saiien guile enn, tend 6
warrant.” /d. Significantly, the Court said that the intrusion in McArthur of temporarily keeping him
from entering his home was “less serious” and “considerably less intrusive than police entry into the
home itself in order to make a warrantless arrest or conduct a search”. McArthur was not searched
or arrested before the officer returned with the warrant.

The factor most similar to McArthur is the fourth one, in regard to time. In both cases, the
police imposed the restraint for a limited period of time, namely, two hours. But the restraint
imposed in this case was much more intrusive than the officers’ action in McArthur of detaining
McArthur on the porch. Intrusion into Kirk’s apartment had already occurred. In the case at bar, law
enforcement interests in expediency eradicated all of Kirk’s privacy interests. There was no balance.
The officers’ actions were unreasonable. Considering all of the factors in balancing the law
enforcement needs and the privacy requirements, under McArthur, the Fourth Circuit Court of
Appeal erred in affirming the denial of the Motion to Suppress the Evidence. The majority of the
Louisiana Supreme Court erred in denying review of that decision. This Application for Writ of
Certiorari must be granted.

36

In Segura 468 U.S. 796, unlike the present case, no one in Segura denied the illegality of the
initial entry into the apartment without a warrant and without exigent circumstances. /d. It was also
agreed by the parties in Segura that the items in plain view, where the view was the result of the
illegal entry, had to be suppressed. The Court decided only the admissibility of the results of the later
search performed after the warrant was obtained. The warrant in Segura was not based on
information obtained during the entry Segura, 468 U.S. at 804, 104 S.Ct. at 3385, n. 4. The Court
held that where officers, having probable cause, enter premises, and arrest the occupants, and, for
no more than a brief period, secure the premises from within to preserve the status quo while other
officers, in good faith, are in the process of obtaining a warrant, there is no violation of the Fourth
Amendment's proscription against unreasonable seizures. /d.

In the case at bar, the officers did not act in good faith or reasonably. The officers used the
information obtained in the illegal entry of Kirk’s apartment in the warrant application (App. 5;
Mot.Tr. 11, App. 3). Officer Brunet admitted that he had not applied for a warrant before the illegal
entry because he knew the magistrate would not sign it (Trial Tr. 21). When the officers made a
forcible entry into Kirk’s apartment, there had not been the extensive surveillance.

The instant case is like Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed.2d 951
(1932), where the officers made an unlawful entry onto the premises, and made a seizure of illicit
whiskey that was deemed unreasonable. As in the case at bar, in Taylor, the search and seizure were
undertaken with the hope of securing evidence upon which to indict and convict Kirk. Officer
Brunet, in Kennedy Kirk’s case, used the evidence from the search and seizure of Kirk and his
apartment first to get a search warrant (App. 5) and later, to secure his conviction. The Court in
Taylor, in pertinent part, said:

37

[T}here was no probability of material change in the situation during the time
necessary to secure such warrant. Moreover, a short period of watching would have
prevented any such possibility. We think, in any view, the action of the agents was
should have been suppressed. /d. at 6 (citations omitted). ;

In Trupiano, 334 U.S. 699, this Court defined its role in cases involving search and seizure
issues: “the Fourth Amendment is a recognition of the fact that in this nation individual liberty
depends in large part upon freedom from unreasonable intrusion by those in authority. It is the duty
of this Court to give effect to that freedom.” The purpose of the Fourth Amendment's requirement

of reasonableness

is to preserve that degree of respect for the privacy of persons and the inviolability
of their property that existed when the provision was adopted--even if a later, less
virtuous age should become accustomed to considering all sorts of intrusion
reasonable.
Minnesota v. Dickerson, 508 U.S. 366, 380, 113 S.Ct. 2130, 2139, 124 L.Ed.2d 334 (1993)
(SCALIA, J., concurring). The warrantless invasion of Kirk’s home without a proven exigency is
disrespectful of the privacy guaranteed by the Fourth Amendment. It is not a practice that this Court
should allow the New Orleans Police Department to become accustomed to promote. As such, this

application for writ of certiorari should be granted.

38

CONCLUSION

For the foregoing reasons, Petitioner prays that a writ of certiorari issue to review the
decision of the majority of the Supreme Court of the State of Louisiana, in a four to three split.
denying Kennedy Kirk's Application for Writ of Certiorari, and letting stand the decision of the
lower appellate court. The warrantless invasion of Kirk’s home without a proven exigency is
disrespectful of the privacy guaranteed by the Fourth Amendment. This Application for Writ of
Certiorari should be granted to address the violation of the Fourth Amendment to the United States
Constitution as made applicable to the states by the Fourteenth Amendment. Wolf v. Colorado. 338

U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961).

Respectfully submitted:

wt
Dated 5 February 2002 SA \ its
Sherry Watters
Attorney for Petitioner, Kennedy Kirk
Louisiana Appellate Project
P.O. Box 58769
New Orleans, Louisiana 70158-8769
504 - 723-0284
Louisiana Bar No. 1638

39

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0573%3A2. Public record. Not legal advice.