743 F.2d 1158 (6th Cir. 1984), 82-5766, United States v. Morgan

Docket Nº:82-5766.
Citation:743 F.2d 1158
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. John Henry MORGAN, Defendant-Appellee.
Case Date:September 13, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1158

743 F.2d 1158 (6th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellant,

v.

John Henry MORGAN, Defendant-Appellee.

No. 82-5766.

United States Court of Appeals, Sixth Circuit

September 13, 1984

Argued Aug. 2, 1984.

Page 1159

W. Thomas Dillard, U.S. Atty., J. Edgar Schmutzer, Asst. U.S. Atty., Knoxville, Tenn., Patty Merkamp Stemler (argued), U.S. Dept. of Justice, Appellate Section, Criminal Div., Washington, D.C., for plaintiff-appellant.

J. Polk Cooley (argued), Rockwood, Tenn., for defendant-appellee.

Before KEITH, MARTIN and WELLFORD, Circuit Judges.

Page 1160

BOYCE F. MARTIN, Jr., Circuit Judge.

The United States appeals an order of the district court, 565 F.Supp. 9, granting a motion to suppress a .45 caliber pistol, model M-70, converted to fully automatic, which had not been registered in the National Firearms Registration and Transfer Record as required by 26 U.S.C. Sec. 5861(d) and 5871. The pistol was taken when John Henry Morgan was arrested at his mother's home in Harriman, Tennessee on June 13, 1982. This matter is properly before the court pursuant to 18 U.S.C. Sec. 3731.

During the evening on June 13, 1982, the Sheriff's Department of Morgan County, Tennessee, received a complaint about target shooting at Potter's Falls, a public park located in Morgan County. According to the complaint, several people were shooting into a clay bank inside the park. Responding to the complaint, Sheriff Roger Reynolds and officer Teddy Bells drove to the park in an unmarked car. As they approached the park, they heard what sounded like automatic weapons being fired. Inside the park, they saw five or six people, including Morgan, loading guns into the trunk of a blue Cadillac. Sheriff Reynolds approached them and told them a complaint had been received about guns being fired in the park. At the suppression hearing he testified that he also saw what appeared to be the folding stock for an automatic shoulder weapon being thrown into the trunk of the car. After telling them about the complaint, the Sheriff asked the group to leave the park, which they agreed to do.

As the Sheriff was leaving, he told Deputy Sheriff Bells that "we need to look in the trunk." They turned back in the direction of Morgan and his friends and observed the closing of the trunk. The Sheriff recorded the license number of the car which was an out-of-state plate beginning with the prefix "95." While still observing the preparations to leave by Morgan and his friends, an unidentified observer approached the officer and told them:

If you get out of the car and attempt to arrest these people they will shoot you. They have done made the comment that they will kill any law that tries to arrest them. The best thing you ought to do is to get out of here and go get some help.

He also told Sheriff Reynolds the trunk of the Cadillac was filled with machine guns, pistols, and shotguns.

The Sheriff then immediately left the park and radioed for reinforcements from the Morgan County Sheriff's office. Other deputies later returned to the park with Sheriff Reynolds. However, Morgan and his friends had left. An alert was then broadcast requesting a lookout for a blue Cadillac with an out-of-state license plate beginning with the prefix "95." Sheriff Reynolds warned in the alert that, based upon the information he had received from the unidentified bystander, the occupants were armed with automatic weapons and considered dangerous.

Sometime after Reynolds' dispatch, Officer Isham of the City of Harriman Police Department spotted the Cadillac and followed it to the home of Elizabeth Morgan, the mother of defendant Morgan. Isham observed several people get out of the car and take an assortment of weapons into the Morgan home. He then radioed Thomas Alcorn, Assistant Chief of the Harriman Police Department, who in turn contacted Sheriff Reynolds. Isham, along with Officer Steelman, who arrived shortly after Isham's radio dispatch to Chief Alcorn, remained on guard and unobserved outside the Morgan home waiting for the other officers to arrive. During this period, they observed no unusual or threatening activity around the house.

After receiving Isham's radio alert, Chief Alcorn and several of his officers met in a local coffee shop where they "assessed the situation." According to Chief Alcorn's testimony at the suppression hearing, he discussed the logistics of approaching the Morgan home and "gave [his] men their assignments and positioned everybody, and we moved from there." Before leaving the coffee shop, however, Chief Alcorn and his men waited for the arrival of the officers from Morgan County.

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When Alcorn and his squad of nine officers, including Sheriff Reynolds and his deputies, arrived at the Morgan home, Chief Alcorn drove his car, with his lights off, into the yard and parked it to the rear and right of the Cadillac. At the same time, the other officers surrounded the Morgan home. Alcorn then flooded the house with spotlights and summoned Morgan from his mother's home with the blaring call of a bullhorn.

Responding to the coercive activity outside of the house, Morgan appeared at the front door holding a pistol in his hand. Alcorn ordered Morgan to put down the weapon. Morgan then raised the gun. Chief Alcorn repeated his order, and Morgan put the gun down inside the door and went outside. After leaving the house, Morgan was formally arrested, handcuffed, and frisked. During the frisk the police removed a loaded pistol from Morgan's right rear pocket. Those in the house were then called outside by Chief Alcorn. After they left, Chief Alcorn ran into the house and picked up the pistol left inside the door by Morgan. Two other officers then searched the whole house and found close to a dozen loaded guns inside the Morgan living room. These shotguns, rifles, and pistols were also seized by the police. The only weapon found to violate any statutory firearms requirement was the .45 caliber pistol found inside the door.

During the one- to two-hour period between Sheriff Reynolds' first observation of Morgan at Potter Falls and Morgan's subsequent arrest, no effort was made by any law enforcement agency to obtain a search or arrest warrant. When asked at the suppression hearing why he did not obtain a warrant from one of the judges available on the weekend, Chief Alcorn stated: "Well, generally--we have tried to, on several occasions, to contact the judges on the weekend and either one of the judges are hard to reach on the weekend."

The district court granted Morgan's motion to suppress the .45 caliber pistol seized by Chief Alcorn which was the only basis for federal charges against Morgan. The district court found no exigent circumstances justifying the police officers' warrantless entry and subsequent search of the Morgan home. In the opinion of the court, "there was sufficient time" to obtain an arrest or search warrant. Because we agree there were no exigent circumstances justifying the warrantless entry of the home and arrest of Morgan, we affirm the order of the district court.

Absent exigent circumstances, police officers may not enter an individual's home or lodging to effect a warrantless arrest or search. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). As clearly stated in Payton, 445 U.S. at 590, 100 S.Ct. at 1382:

In terms that apply equally to seizures of property and to seizures of the person, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not be reasonably crossed without a warrant.

This is not a novel idea. As eloquently explained by Justice Jackson in Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948),

Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's home secure only in the discretion of police officers.... The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to society which chooses to dwell in reasonable security and freedom from surveillance.

See also Welsh v. Wisconsin, --- U.S. ----, ---- n. 10, 104 S.Ct. 2091, 2097 n. 10, 80 L.Ed.2d 732 (1984) (fourth amendment prohibits the police from making a warrantless night entry of a person's home in order to arrest him for violation of a nonjailable traffic offense). This principle has been consistently applied in this circuit. United States v. Kinney, 638 F.2d 941, 943 (6th Cir.), cert. denied 452 U.S. 918, 101 S.Ct.

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3056, 69 L.Ed.2d 423 (1981); United States v. Renfro, 620 F.2d 569, 574 (6th Cir.), cert. denied, 449 U.S. 902, 101 S.Ct. 274, 66 L.Ed.2d 133 (1980); United States v. Killebrew, 560 F.2d 729, 733 (6th Cir.1977). Moreover, the burden is on the government to demonstrate exigency. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948); United States v. Killebrew, 560 F.2d at 733. Also, a district court's factual finding on the existence of exigent circumstances will not be disturbed unless clearly erroneous. United States v. Gargotto, 510 F.2d 409, 411 (6th Cir.1974), cert. denied, 421 U.S. 987, 95 S.Ct. 1990, 44 L.Ed.2d 477 reh. denied, 423 U.S. 884, 96 S.Ct. 157, 46 L.Ed.2d 115 (1975); United States v. Flickinger, 573 F.2d 1349, 1356-57 (9th Cir.), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978); see also United States v. Collis, 699 F.2d 832, 835 (6th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 3088, 77 L.Ed.2d 1349 (1983)...

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