290 F.3d 1239 (10th Cir. 2002), 01-3291, U.S. v. Davis

Docket Nº:01-3291.
Citation:290 F.3d 1239
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Jason Maltino DAVIS, Defendant-Appellee.
Case Date:May 16, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1239

290 F.3d 1239 (10th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellant,


Jason Maltino DAVIS, Defendant-Appellee.

No. 01-3291.

United States Court of Appeals, Tenth Circuit

May 16, 2002

Page 1240

Richard A. Friedman, Attorney, Appellate Section, Criminal Division, United States Department of Justice (James E. Flory, United States Attorney, Nancy Landis Caplinger and Gregory G. Hough, Assistant United States Attorneys, Topeka, KS, with him on the briefs), Washington, DC, for Plaintiff-Appellant.

Ronald E. Wurtz, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Topeka, KS, for Defendant-Appellee.

Before HENRY, PORFILIO and ANDERSON, Circuit Judges.

PORFILIO, Circuit Judge.

The government appeals the district court's grant of Jason Maltino Davis' motion to suppress 58 grams of crack cocaine and three firearms seized from his home. The sole issue for our consideration is whether the district court properly granted Mr. Davis' motion after finding no exigent circumstances to justify the officers' warrantless search of Mr. Davis' home. Finding no error, we affirm.

Shortly before 5:30 A.M. on October 13, 2000, Grandview Plaza, Kansas Police Officer, Richard Parsons, and Geary County Deputy Sheriff, James Fletcher, responded to a dispatcher's report of a possible domestic disturbance at a Grandview Plaza home. The address was known to Officer Parsons as the residence of Jason Davis and Desiree Coleman. The officer had prior contact with Mr. Davis over minor, non-violent circumstances, and Mr. Davis was not wanted for any criminal offense.

Arriving first, Officer Parsons heard no noise and saw no evidence of a disturbance. The front door of the house opened. Mr. Davis appeared, clad only in a pair of boxer shorts; he had alcohol on his breath and bloodshot eyes. Standing in the doorway, Mr. Davis told the officer he had been disciplining his child and that was the reason for the noise. Officer Parsons

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asked for the whereabouts of Ms. Coleman and Mr. Davis replied she was in Topeka. That response notwithstanding, Ms. Coleman chose this point to appear. She wrapped her arms about Mr. Davis' waist and stated the couple had been arguing. Officer Parsons' attempt to talk to the scantily clad Ms. Coleman was impeded by Mr. Davis who tried to shield her from the officer.

At this point, Deputy Fletcher arrived. Officer Parsons then told Mr. Davis to step aside and stop blocking his view of Ms. Coleman who was resisting her husband's efforts to close the door. Mr. Davis refused the officers' request to enter the home, but Deputy Fletcher told him they were coming in anyway to check on Ms. Coleman. Mr. Davis responded by opening the door and ordering Ms. Coleman to go outside while he retreated into the house.

According to the findings of the district court, both officers then entered and told Mr. Davis to stop his retreat. Officer Parsons testified Ms. Coleman tried to block him with her arm, but he pushed her away and entered. He testified he did so because of "officer's safety [sic] and concern for Deputy Fletcher's welfare." He also stated he was concerned "when Mr. Davis was going toward the back room, that he was either going for a weapon or that he was trying to evade [sic] the officers in the investigation." Mr. Davis, meanwhile quickly continued to the back of the house and returned with a child in his arms.1 Putting the child down, he turned * to go once again to the rear of the house, prompting Deputy Fletcher to put his hand on his gun and to order Mr. Davis to stop.

Obeying that order, Mr. Davis went outside with Deputy Fletcher and stated he wanted both officers to leave his home. Officer Parsons, however, remained inside with Ms. Coleman who began expressing her dissatisfaction with the officers and their presence. Indeed, she refused to consent to a search of the house and told Officer Parsons he would have to obtain a warrant to do so. At this point, Officer Parsons noted an ashtray containing evidence of marijuana use.

The officers then placed both occupants in custody and told them to make arrangements for someone to watch their children. While the children's clothes were being gathered, Officer Parsons observed a "marijuana blunt" and three weapons.2

Later the same day, Officer Parsons applied for and obtained a warrant to search the house for marijuana. During that search, the evidence leading to the indictment of Mr. Davis was discovered. Mr. Davis moved to suppress that evidence; the motion was granted, and the government has appealed, contending the officers' actions were justified on the ground of exigent circumstances.

"The existence of exigent circumstances is a mixed question of law and fact." United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998) (quoting United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir. 1992)). "Although we accept underlying fact findings unless they are clearly erroneous, 'the determination of whether those facts satisfy the legal test of exigency is subject to de novo review.' " Anderson, 154 F.3d at 1233 (citing Anderson, 981 F.2d at 1567) (quoting United States v. Stewart, 867 F.2d 581, 584

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(10th Cir. 1989)). With these concepts in mind, we turn to the merits of the appeal.

The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citation omitted). "[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 home for purposes of search or arrest." Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (citation omitted). "With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citations omitted).3

"Probable cause accompanied by exigent circumstances will excuse the absence of a warrant." Howard v. Dickerson, 34 F.3d 978, 982 (10th Cir. 1994) (citations omitted).

The basic aspects of the "exigent circumstances" exception are that (1) the law enforcement officers must have reasonable grounds to believe that there is immediate need to protect their lives or others or their property or that of others, (2) the search must not be motivated by an intent to arrest and seize evidence, and (3) there must be some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be searched.

United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986). Exceptions to the warrant requirement "have been jealously and carefully drawn." Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958) (citation omitted); Welsh, 466 U.S. at 749, 104 S.Ct. 2091...

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