Opinion
Criminal Action No. 99-034 Section: E/3
July 19, 2000
ORDER AND REASONS
Defendant Robert Lee Moore has filed a motion to suppress all physical evidence obtained by law enforcement personnel as a result of the entry and search of his home located at 2044 Duels Street, New Orleans, Louisiana, on August 11, 1998. The United States opposes the motion. An evidentiary hearing was held on the motion to suppress, and memoranda and supplemental memoranda were filed by the defendant and the government.
Facts
Defendant Robert Lee Moore was indicted on February 12, 1999 and charged with one count of knowing and intentional possession with intent to distribute approximately thirty-three grams of cocaine base ("crack"), and approximately thirty-three grams of cocaine hydrochloride, in violation of 21 U.S.C. § 841 (a)(1). These narcotics were seized from his home on August 11, 1998, by officers who were there to execute an arrest warrant to arrest Robert Moore, born on March 17, 1975, and whose home address is 1613 Katlan St., Metairie, Louisiana. The evidence established that there is such a person, but he is not the defendant. The defendant is Robert Lee Moore, born on May 4, 1971, and whose home address is 2044 Duels Street, New Orleans, Louisiana.
Louisiana State Trooper John Schmidt, assigned to the Narcotics Division in New Orleans, was on a Joint Task Force investigating the possible drug activity of John Esteen, III. A judicial officer of the State of Louisiana authorized a wire tap of the telephones of John Esteen and Sonya McShane, his sister, in late June and July, 1998. From the telephone conversations intercepted, law enforcement officials learned that Esteen would be traveling to Houston, Texas and would be accompanied by two women and two men, and that the men were "Rob" and Esteen's father, John Esteen, Jr. They also learned that "Rob"'s telephone number was (504) 945-0509, which was subscribed to Gladys Fletcher, 2044 Duels St., New Orleans, Louisiana.
Surveillance at the airports and in Houston confirmed that "Rob", who is Robert Lee Moore, the defendant in this case, went to Houston, Texas and met with John Esteen, Jr., John Esteen, III, the target of the investigation, and two women, in two motel rooms near the Houston Hobby Airport. John Esteen, Jr., and Robert Lee Moore left Houston and returned to New Orleans on an earlier flight, but John Esteen, III, Heather O'Dell, and Donesha Smith were stopped and law enforcement officials found 1 1/2 kilograms of cocaine concealed underneath the women's clothing. Based upon their observations and the wire intercepted telephone calls, law enforcement officers determined that there was insufficient evidence to seek an arrest warrant as to John Esteen, Jr., but that an arrest warrant would be sought for Robert Lee Moore.
On August 11, 1998, numerous arrest warrants were prepared and brought to Commissioner Jeff Hand of the 24th Judicial District Court for the Parish of Jefferson. The warrant was prepared by Trooper Schmidt. At the top of the warrant, which was sworn to by Trooper John Schmidt, the following information was typed:
personally came and appeared NAME: Agent E. Pearson and Trooper John Schmidt . . . who being first duly sworn, deposed and says that between June 23, 1998 to July 18, 1998 within the jurisdiction of this Honorable Court, in the peace of this State then and there being . . .
ROBERT MOORE, Black Male, D.O.B., 3-17-75 Home Address: 1613 Katlan St., Metairie, Louisiana.
did then and there VIOLATE: Racketeering
Conspiracy to Possess and Distribute Cocaine, approximately 2000 gramsWHERE OFFENSE COMMITTED: Jefferson Parish, Louisiana.
[emphasis added]. The warrant lists as "Details of the Offense" the fact that they were conducting an investigation concerning John Esteen selling quantities of cocaine within Jefferson Parish and that they seized two pounds of cocaine from the two women after they traveled to Houston, Texas with Esteen, Esteen's father, and Robert Moore, on June 29, 1998. The warrant relays the fact that a full wire intercept was authorized on the telephones of Esteen and his sister, and states:
During the wire intercept investigators intercepted many conversations which involved that of narcotics traffickers. Through the monitoring of the conversations and conducting surveillances, the above listed subject was identified as a member of an enterprise involved in the distribution of cocaine. Through investigation it was also learned that the subject was using his business to cover up proceeds which were gained from illegal narcotics transactions.
Defendant's Exhibit D-1. No specific facts concerning the content of the conversations was listed in the affidavit section of the warrant, and the paragraph refers to the "above listed subject" as a member of the enterprise, the "above listed subject" having been identified as Robert Moore, born on 3-17-75, and whose home address was listed at 1613 Katlan St., Metairie, Louisiana.
Testimony at the evidentiary hearing established that there is a Robert Moore with the date of birth of March 17, 1975, who lives on Katlan St. in Metairie, but it is not the defendant. The warrant does not simply have an incorrect address — it is for a person who is not the defendant. Trooper Schmidt admitted he did not read the warrant carefully, did not notice that the identifying information was for a person different than the defendant, and stated that a computer inquiry for Robert Moore's address produced that incorrect information. He stated that even though both he and his fellow agent, Eric Pearson, knew that the defendant lived on Duels Street, the warrant was typed for a different Robert Moore, with a different birth date and a different address. They did testify, however, that defendant Robert Lee Moore was the person whose telephone conversations had been intercepted, who had traveled to Houston and met with the investigation target, John Esteen, Jr., and whom they sought to arrest. Trooper Schmidt stated that it was a clerical error that a different Robert Moore's name and identifying information appeared on the warrant.
After the Commissioner signed the warrant, it was given to Trooper John Fitzpatrick to execute. Trooper Fitzpatrick took the warrant, which indicated that it was for Robert Moore on Kaplan Street, Metairie, which is in Jefferson Parish, and took it to Duels Street, New Orleans, which is in Orleans Parish, to arrest the defendant. Fitzpatrick advised that he did not read the warrant and thus did not discover that it was for a different person than the one he and his team were intending to arrest. He stated that he was told by Trooper Schmidt that Moore's addresses were on Duels Street and on Kaplan Street, and that Schmidt thought he could be found on Duels Street. The error on the warrant was not discovered until defendant Moore was brought to Orleans Parish Prison for booking after his arrest and a booking clerk noticed it.
After the law enforcement officers learned that the warrant was for a different Robert Moore than the defendant, they filed a request to withdraw the warrant and applied for a new warrant, with the identical details of the offense, but with a different date of birth and address, and it was issued by a judge of 24th Judicial District Court of Jefferson Parish. They also applied to Criminal District Court for the Parish of Orleans for a search warrant for the Duels Street address and it was issued by an Orleans Criminal Court Judge.
Trooper Fitzpatrick and six other members of the arrest team took the first warrant for Robert Moore, born in 1975 and residing on Katlan Street in Metairie, and drove to Duels Street. There were three different law enforcement agencies represented in the team, each in clothing marked and identifying them as law enforcement personnel. Fitzpatrick knew the defendant specifically because he had participated in the defendant's arrest a few years earlier for a firearms violation.
When he arrived at Duels Street, he and one other officer approached the front door, and the four other officers positioned themselves around the house in order to thwart an escape attempt. The front door had a glass window pane covered with curtains. Trooper Fitzpatrick knocked at the front door and heard no response, but he did hear movement inside of the house. He alerted the other officers about the movement. The curtains moved from inside the house and Trooper Fitzpatrick saw defendant Moore looking out. Fitzpatrick then shouted loudly that they were police and that they had a warrant. The defendant retreated into the house and the curtains impaired the view from outside to the inside of the house.
Trooper Fitzpatrick then testified that he heard someone from inside the house say, "I have a gun." At that point, Fitzpatrick determined he had to gain entry into the house and he broke one of the glass window panes in the door. Defendant Moore called out, "Don't shoot, I will open the door." He then opened the door and was arrested by law enforcement officers. Moore's person was searched for weapons, and none were found. The officers conducted a quick protective sweep of the house, being concerned about their safety and destruction of evidence in the event others were in the house. They observed that the freezer door was open and scales, cocaine, and drug paraphernalia was inside of the freezer. They also found crack cocaine in the bottom of the toilet. Significantly, no guns were found in the house. After obtaining the search warrant from a judge at the Criminal District Court for the Parish of Orleans, the officers found 30 grams of cocaine, a scale, drug paraphernalia, and $34,000 in currency in a safe in the bedroom closet. It is this evidence that the defendant seeks to suppress.
Discussion
The issues posed in these circumstances penetrate to the core of the Fourth Amendment and its enforcement tool, the exclusionary rule, which excludes from evidence the fruits of an illegal search or seizure. The question to be determined here is whether the items seized in plain view and pursuant to a search warrant applied for and obtained after entry into the defendant's home should be excluded when the police officers who arrived at the defendant's home to arrest him did so on the basis of an invalid warrant, and obtained entry into the home forcibly because of safety concerns after the defendant refused to open the door and stated he had a gun.
The Fourth Amendment to the United States Constitution provides 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, 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.Fourth Amendment, U.S.C.A. (West 2000) [Emphasis added]
This Amendment and the jurisprudence have clearly differentiated between searches and seizures in a public place and in one's home. The Supreme Court has recognized this distinction, noting that one of the basic principles of Fourth Amendment law is that searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980). While an officer may make a warrantless arrest, i.e., a seizure of a person, in a public place, based upon probable cause, United States v. Watson, 423 U.S. 411, 422, 96 S.Ct. 820, 826 (1976), when an officer seeks to arrest a person in his home, he must first obtain a warrant. The underpinnings of such a requirement are in the language of the Fourth Amendment itself, which recognizes the right of persons to be secure in their houses against unreasonable searches and seizures, which includes an arrest, perhaps the ultimate seizure. The reason for such a distinction between a public place arrest and an arrest in one's home was eloquently summarized by the Supreme Court in Payton:
But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual's home. 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 unambiguous physical dimensions of an individual's home — a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their . . . houses . . . shall not be violated." The language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman V. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683 [1961]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.445 U.S. 589-90, 100 S.Ct. at 1381-82 [Emphasis added]
Because the police officers here intended to arrest the defendant in his home, a warrant was needed. unfortunately, the warrant which was obtained was problematical in every sense of the word. The Court respects the task of law enforcement, and particularly those involved in narcotics investigation and enforcement, which requires exposure to great risks as well as attention and adherence to strict laws governing criminal investigation and procedure. However difficult the jobs of these law enforcement personnel may be, the necessity that their tasks be carried out in a manner with the highest deference to the constitutional rights of the citizenry cannot be questioned. The warrant which was applied for and obtained was critically defective. Inasmuch as the United States concedes in its memoranda, as did Trooper Schmidt, the officer in charge of the investigation, in his testimony, that the warrant was invalid on its face, the Court will not dwell on the warrant's intricacies. It is undisputed that on its face, the warrant did not authorize the officers to arrest the defendant, Robert Lee Moore, born on May 4, 1971, and residing on Duels Street in Orleans Parish. Even if the details of the offense were not conclusory, reciting in general that the wiretapped conversations showed that the defendant was a racketeer and member of a drug conspiracy, without stating which facts from those conversations led the officers to reach those conclusions, the warrant was for an entirely different person than defendant Robert Lee Moore. The fact that this error was the result of carelessness and perhaps negligence, rather than being a deliberate or reckless misstatement or omission, does not save the warrant's validity.
The thorny question becomes what authority, then, did the police officers have to be present on the defendant's doorstep demanding that they be admitted for the purpose of arresting the defendant. Without a valid warrant, there can be no doubt that the police officers had no authority to enter the defendant's home to arrest him, absent exigent circumstances. The Government in its Supplemental Answer and Incorporated Memorandum to Defendant's Motion to Suppress Evidence, admits that the first issue to address is whether the agents had legal justification to appear on Robert Moore's doorstep to arrest him. Having said this, the Government offers no legal authority to support its position that the law enforcement officers had any legally valid reason to be on the defendant's doorstep that day.
Under the Fourth Amendment, a search and seizure conducted without a warrant supported by probable cause is per se unreasonable, subject to few exceptions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 (1967). Inasmuch as there was no valid warrant, the officers' entry into his home after he initially failed to open the door voluntarily by breaking the window pane in the door and shouting that they were police officers and that he should open the door must be determined to be a warrantless arrest. One exception to the warrant requirement is exigent circumstances, and the burden of establishing the existence of such circumstances is on the government. See, United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993). Conveniently, perhaps, in hindsight, too conveniently so, the officers testified to an exigent circumstance. The officer at the front door testified that the defendant, faced with the knowledge that there was an armed police officer outside the door, initially warned that he had a gun, but after the officer broke the window pane, begged the officers not to shoot and opened the door. At the time this occurred, the police officers did not know that the warrant was invalid. Indeed, the officers executing the warrant did not even read it.
In United States v. Rico, 51 F.3d 495 (5th Cir. 1995), the Fifth Circuit assembled a non-exhaustive list of exigent circumstances, including "those in which officers reasonably fear for their safety, where firearms are present, or where there is a risk of a criminal suspect's escaping or fear of destruction of evidence." 51 F.3d at 501. In considering these factors, it seems very likely that when officers, as in this case, approach a home or building dressed in raid gear and visibly armed to arrest a person inside, the officers will always be in fear for their own safety, there will always be the real possibility of the potential arrestee's having a weapon, there will always be the possibility that once the officers announce their presence, the subject will attempt to escape. The Rico decision instructs that the scrutiny which attends the exigent circumstances inquiry does not begin at the second the officer heard the statement "I have a gun" from inside the home, but the tactics leading up to the exigency must be examined. 51 F.3d at 501.
As noted in Rico, "[j]ust as exigent circumstances are an exception to the warrant requirement, a police-manufactured exigency is an exception to an exception. . . . Exigencies can be manufactured guilelessly or ulteriorly. Although `[t]here is no question that the deliberate creation of urgent circumstances is unacceptable[,] . . . bad faith is not required to run afoul [of the Fourth Amendment].'" 51 F.3d at 502, quoting United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990). In the absence of bad faith, the following factors must be examined to determine a claim of manufactured exigency: (1) whether the agents could have obtained a search warrant prior to the development of the exigent circumstances; and if there was insufficient time, (2) whether the agents themselves nevertheless created the urgent situation by the use of unreasonable law enforcement tactics. Rico, 51 F.3d at 502-3.
In the instant situation, which is unusual because the officers did obtain a warrant, albeit an invalid one, there can be no doubt that before they approached the defendant's home, there was sufficient time to obtain a valid warrant for the defendant. The fact that the warrant was invalid in that it was for a person different than the defendant is solely the responsibility of a number of law enforcement personnel, who did not read the warrant either before it was presented to the judicial officer for signature, after it was signed, or when it was provided for execution. Had the officer executing the warrant read it, instead of relying on the information provided to him by his co-officer, he might likely have traveled to the address on the warrant and appeared, with guns drawn, at the home of John Moore, born in 1975, who lived on Katlan Street, very likely with innocent bystanders in the house and in the neighborhood in close proximity. The actions of law enforcement in obtaining and executing a warrant for a different person than was identified on the warrant were not reasonable.
Once the officers did arrive at the home of the defendant with guns drawn, the exigency created was almost inevitable. They thought they had a valid warrant, and they were going to gain entry one way or another. They created the exigency, even though they may have heard a voice inside the home, when surrounded by persons with guns drawn, state "I have a gun." While certainly the fact that a person from inside a locked house announces that he has a gun is a cause for concern, the officers, when arriving at a location to arrest a suspect, always assume that there are armed persons inside of the building and proceed with extreme caution. In the circumstances that occurred that morning, no matter what the defendant did, the officers were going to gain entry into the house. The exigent circumstance on which the government seeks to validate this arrest, entry, and search was created by the government's error in preparing and obtaining a warrant for a different person than the defendant.
Although conceding that the warrant was invalid and that this motion must be addressed as a warrantless arrest and search, the government suggests that it does not matter that the warrant was for a different person than the defendant because the details of the offense related to the defendant. The fact that the factual description of the conduct related to the defendant Robert Lee Moore, and not the Robert Moore identified on the warrant, is of no moment. If the officers did not need the warrant to arrest the defendant in his home, they would simply have gone to his home and arrested him because in their view, probable cause supported his arrest. The Fourth Amendment, which dictates that the person to be arrested in the warrant be particularly described and the jurisprudence, specifically Payton, leaves no doubt that a warrant was required. The warrant which was obtained was not for the defendant. His arrest was in violation of the Fourth Amendment, and the police-created exigency does not excuse the violation. Therefore, the items found in plain view in the home, and the items later seized pursuant to the search warrant obtained after they illegally entered the defendant's home, must be suppressed from evidence as they emanated from an illegal search.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of Robert Lee Moore to suppress evidence be and is hereby GRANTED.