Opinion
No. CR99-0079.
February 15, 2000.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's December 30, 1999, motion to suppress evidence (docket number 24). The court held an evidentiary hearing on this motion on January 12, 2000, at which the defendant was present and represented buy Jeffrey Fields. The government was represented by Assistant United States Attorney Matt Cole. The motion was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the motion to suppress be denied.
The motion to suppress arises out of warrantless searches of the defendant's residence on November 8 and November 10, 1999. On both of these occasions, the government seized firearms and ammunition. The defendant has been convicted of domestic assaults and his possession of firearms is therefore illegal. The government contends that the seizure of firearms and ammunition on November 8, 1999, was necessary for officer safety and that exigent circumstances justify the warrantless search. It contends that it was executing a valid arrest warrant for the defendant on November 10 and observed firearms in plain view in the residence while executing that arrest warrant.
FINDINGS OF FACT
On November 8, 1999, Ann Erickson George made a complaint to the Benton County Sheriff's Department that she had been physically assaulted by the defendant. She had made other reports of domestic abuse in the past involving her husband, defendant Jeffery George. Deputy Sheriff Jannine Crandall noticed that the defendant was afraid and upset. Deputy Sheriff Justin Simmons took a tape recorded statement from her. Deputy Crandall took photographs of injuries that Ann Erickson George appeared to have sustained as a result of the alleged assault.
Following their interview with Ms. George, Deputies Crandall, Simmons, and Deputy Mark Johnson went to the defendant's residence that evening to investigate further. They encountered a man outside working on a car named Danny Flora. He indicated that the defendant was upset with Ms. George because she had left to get auto parts and had not returned.
After some discussion with Mr. Flora, the defendant came out. He was patted down and no guns were found on his person. Deputy Simmons informed the defendant of the nature of the investigation. The defendant claimed that he did not assault his wife and that in fact she had assaulted him several times in the past with a knife. The defendant then got loud, started flailing his arms and telling the police officers that he was not going to be arrested. He took a few steps away and pulled a metal tape measure out of his pocket and threatened to throw it at the deputy sheriffs. He then ran from the north side of the house around the house to the east side. Deputy Simmons followed behind him but there were no lights on in the area and the area was littered with junk that made it difficult to pursue the defendant.
Deputy Mark Johnson observed the defendant inside the residence before he initially came out to see the police. Through the window of the front door, Deputy Johnson saw a gun cabinet and also observed long guns inside the cabinet. Deputy Johnson knew that the defendant had earlier been convicted of a crime of domestic violence.
Deputy Crandall was concerned that the defendant's flight was an attempt to run inside the house and secure a weapon. Ms. George had told the police that part of the assault involved the defendant holding a .22 caliber derringer to her head. The deputy sheriffs knew that there were other entrances to the home on the east and south sides of the residence. Deputy Crandall ran into the home to secure the home and attempt to prevent the defendant from getting access to a weapon. The defendant did not run into the house but rather ran to a nearby patch of woods. The police seized handguns and long guns from the defendant's residence.
On November 9, 1999, Deputy Crandall had a number of telephone conversations with the defendant and his wife. Ms. George called in to find out the status of the investigation. Later, she called in again. She and/or the defendant told Deputy Crandall that they had decided to hire an attorney. The defendant expressed a willingness to turn himself in but later in the conversation he got angry and said he would not turn himself in. Finally, late that night in the last telephone conversation, Deputy Crandall asked the defendant why he had not turned himself in. He stated that he would do so within an hour. He did not.
On November 10, 1999, Benton County Detective Peter Wright secured an arrest warrant for the defendant and attempted to execute the warrant at the defendant's residence. After announcing their purpose and receiving no response, police entered the home to execute the arrest warrant. The defendant was not present. Police observed more firearms and ammunition in plain view.
CONCLUSIONS OF LAW
The defendant contends that the warrantless entry into his residence and the seizure of weapons violated the Fourth Amendment to the United States Constitution. He further contends that the subsequent search warrant executed on November 10, 1999, and statements made by the defendant are subject to suppression as fruit of the poisonous tree. The government contends that exigent circumstances existed justifying the warrantless entry into the residence and seizure of the firearms in question.
As stated in United States v. Vance, 53 F.3d 220, 221-22 (8th Cir. 1995):
The Fourth Amendment has drawn a firm line at the entrance to the house . . . law enforcement officials may not cross that line without a search warrant or exigent circumstances. . . . Exigent circumstances exist, however, when law enforcement officials have a "legitimate concern for the safety" of themselves or others. . . . Thus, when there is a reasonable fear of harm, a warrantless entry may be justified.
In Vance, the police approached the residence where the defendant was living after the defendant's arrest to ask an occupant of the residence for identification. As the occupant moved inside the residence to secure identification, the police officer entered the home and conducted a protective sweep. The entry was justified by information that other individuals and weapons were in the house. Based on this information, the police officer could have reasonably feared that the occupant was entering the house to obtain a weapon. The Eighth Circuit Court of Appeals specifically stated that the police were not required to avoid danger to these circumstances by simply leaving the residence. United States v. Vance, Id. at n. 4. See also United States v. Hill, 730 F.2d 1163, 1170 (8th Cir. 1984); United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996) [threats to an officer's safety, the defendant's record of violent tendencies or a verified reputation of the defendant's violent nature can be enough to provide law enforcement officers with justification (exigent circumstances) to forego the necessity of knocking and announcing their presence].
It must be remembered that the search in this case was done in the context of a domestic violence investigation. Domestic violence calls commonly involve dangerous situations in which the possibility for physical harm or damage escalates rapidly. The call itself creates an indication that an exigency exists allowing the officer to enter a dwelling if no circumstance indicates that entry is unnecessary. Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998). See also Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999) (deference to police judgment may be particularly warranted in domestic disputes. In those disputes, violence may be lurking and exploding with little warning).
In this case, several factors combine to justify the warrantless entry. First, the police had credible evidence of recent domestic violence against Ann Erickson George. Second, they had a reasonable belief that the defendant used a firearm in this domestic dispute. Third, the defendant was almost immediately angry and out of control in the presence of the police. Fourth, he threatened police officers with a metal object immediately before fleeing around his house into the dark. Finally, the police could see weapons inside the home and knew that there were two other entrances to the home where the defendant could get access to the home and the weapons inside. Under these circumstances, the police were justified in entering the residence and securing the weapons pursuant to the exigent circumstances exemption to the warrant requirement. Finding no violation of the Fourth Amendment, the subsequent search and statements taken by the police were not the fruit of the poisonous tree.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the motion to suppress be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).