763 F.2d 1560 (7th Cir. 1985), 83-1372, Llaguno v. Mingey

Docket Nº:83-1372.
Citation:763 F.2d 1560
Party Name:Gloria LLAGUNO, et al., Plaintiffs-Appellants, v. Edward MINGEY, et al., Defendants-Appellees.
Case Date:June 05, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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763 F.2d 1560 (7th Cir. 1985)

Gloria LLAGUNO, et al., Plaintiffs-Appellants,

v.

Edward MINGEY, et al., Defendants-Appellees.

No. 83-1372.

United States Court of Appeals, Seventh Circuit

June 5, 1985

Argued Feb. 23, 1984.

Reargued En Banc Oct. 4, 1984.

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Rick Schoenfield, Ettinger & Schoenfield, Ltd., Chicago, Ill., for plaintiffs-appellants.

Philip L. Bronstein, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, COFFEY, and FLAUM, Circuit Judges, and PELL, Senior Circuit Judge.

POSNER, Circuit Judge.

This civil rights suit under 42 U.S.C. Sec. 1983 charges members of the Chicago Police Department with having entered and

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searched the plaintiffs' home, and seized the plaintiffs, in violation of the Fourth Amendment (held applicable to state action by virtue of the Fourteenth Amendment), which, in its first clause, guarantees "the right of the people to be secure in their persons [and] houses, ... against unreasonable searches and seizures." The jury brought in a verdict for the defendants, and the plaintiffs appealed. A panel of this court (with Judge Pell in partial dissent) held that the district judge should have directed a verdict for the plaintiffs. 739 F.2d 1186 (7th Cir.1984). The full court ordered rehearing en banc to consider the division of functions between judge and jury in a damage suit charging violations of the Fourth Amendment. Differently constituted majorities of the court have now concluded that although the trial judge was right not to grant the plaintiffs' motion for directed verdict (except with respect to the 42-hour detention of David Llaguno), he committed errors that entitle the plaintiffs to a new trial.

On a night in Chicago in 1980, two young Hispanic men committed two robberies, killed four people and wounded three others (including a policeman), and abducted a young girl. When the getaway car crashed, the police were able to shoot and capture one of the killers (Garcia, who has since been sentenced to death) and recover the girl unharmed, but the other killer escaped on foot. A check of the license-plate number showed that the car was registered to Vilma Llaguno at an address two miles from the crash site and that it had not been reported stolen. The crash occurred at North and Oakley; Vilma Llaguno's address was on Wabansia, near North Avenue but farther west than Oakley. One of the robberies had taken place between the crash site and the Llaguno residence.

Several policemen, led by Sergeant Mingey, drove to their headquarters, picked up a shotgun and a sledgehammer there, and then drove to the Llaguno home, believing that the killer who had fled from the car when it crashed may have been living at Vilma Llaguno's address, and that fleeing felons often go home. (Mingey and several other policemen in the entry party are one group of defendants; the other consists of policemen involved in the protracted detention of David Llaguno, of which more shortly.) Upon arrival Mingey banged on the front door and ordered the woman who came to the door, Gloria Llaguno, to open it. She did so, and the police rushed in with drawn guns, searched the house, rounded up the occupants (the plaintiffs in this action), and herded them into the living room. Those seized included Gloria and her husband, several of their children (including David Llaguno), and several grandchildren--a total of 10 people. (Vilma Llaguno, who is Gloria Llaguno's daughter-in-law, was not at home.) In response to questions from the police, David revealed that it was his car that had crashed, and said he had loaned it to a friend. When the police asked him who the friend was, he gave Garcia's name, according to David's testimony; according to the police, he refused to answer. They arrested him. Some of the plaintiffs testified at trial that the police threatened to shoot them, which the police denied; that the police had later come back to the house to speak to David; and that on these occasions they had entered the house without anyone's consent, which they also denied--while acknowledging having held David in custody for 42 hours after his arrest, during which time they neither charged him with a crime nor brought him before a magistrate.

While the police were at the Llaguno residence, the killer who had fled from the crash at North and Oakley was shot and killed by other policemen. He turned out to be Roger Llaguno, a son of Gloria and brother of David but not a resident of the house that the police had entered. No charges were ever lodged against any of the occupants, including David.

The plaintiffs argue that even if the police had probable cause to search the house and detain its occupants (an issue we shall come back to), they still violated the Fourth Amendment as a matter of law by

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failing to get a search warrant. Except in an emergency ("exigent circumstances"), police may not, with neither a warrant nor the homeowner's permission, search a home even though they have probable cause to believe a search would be fruitful. See, e.g., Welsh v. Wisconsin, --- U.S. ----, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984). But if the police in this case had probable cause to believe that the killer was in the Llaguno house, they were excused from getting a warrant, which could have imposed a delay of several hours. The situation was an emergency in about as vivid a sense as can be imagined. A man had (with his partner) just shot seven people. There was no reason to think he had finished shooting; there was every reason to think he would put up a violent resistance. If the police delayed for a warrant, the killer might barricade the house, take hostages, or flee and kill again before they could catch up with him.

True, other cases where an emergency has been held to justify a search without a warrant have involved a clearer showing of probable cause for the search than this case. See, e.g., Warden v. Hayden, 387 U.S. 294, 297-99, 87 S.Ct. 1642, 1645-1646, 18 L.Ed.2d 782 (1967); Dorman v. United States, 435 F.2d 385, 393 (D.C.Cir.1970) (en banc). Yet even Dorman, which lists six factors to be considered in deciding whether a warrant can be dispensed with, one being a "clear showing" of probable cause, id. at 392-93, does not suggest that all six factors must be present in each case; and a later District of Columbia Circuit decision, written by the author of Dorman, makes clear that all need not be. See United States v. Robinson, 533 F.2d 578, 583-84 (D.C.Cir.1976) (en banc). Moreover, in United States v. Acevedo, 627 F.2d 68, 70 (7th Cir.1980), we cautioned against the "checklist-type analysis" of Dorman (see also People v. Abney, 81 Ill.2d 159, 173, 41 Ill.Dec. 45, 51, 407 N.E.2d 543, 549 (1980); 1 LaFave & Israel, Criminal Procedure Sec. 3.6, at pp. 262-63 (1984); LaFave, "Seizures" Typology: Classifying Detentions of the Person to Resolve Warrant, Grounds, and Search Issues, 17 J.L. Reform 417, 454-58 (1984)), and said the question was simply "whether the exceedingly strong privacy interest in one's residence is outweighed by the risk that delay will engender injury, destruction of evidence, or escape." The Fourth Amendment contains no checklist of factors constituting an emergency--contains, indeed, no reference to emergencies. The operative word in the Fourth Amendment is "unreasonable"; so the question ought to be, were the police unreasonable in not getting a warrant in the circumstances that confronted them?

The greater the danger to public safety if the police delay entering premises in search of a criminal suspect, the more reason they have for not waiting; and the danger here was greater than in Hayden, Dorman, or any other case we know of in which a "clear showing" of probable cause, as distinct from a mere showing, was made. The analogy to determining reasonableness in a negligence case by comparing the danger of an accident to the burden of avoiding it, see, e.g., United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (L. Hand, J.), suggests that in determining whether police are reasonable in entering a house without a warrant the trier of fact ought to consider not only how great the risk of delay was--that is, the probability of injury, escape, or destruction of evidence, see, e.g., United States v. Acevedo, supra, 627 F.2d at 71--but also how great the harm would have been had the risk materialized. The greater that harm would be, the less need be the probability that it would actually have occurred to justify the police in invading the interest (great though it is) in the privacy of the home. The potential harm from waiting for a search warrant in this case was very great even though it was far from certain that an immediate search would be productive. See United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir.1981) (per curiam); United States v. Jones, 635 F.2d 1357, 1360 (8th Cir.1980); United States v. Williams, 612 F.2d 735, 739 (3d Cir.1979); United

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States v. Bustamante-Gamez, 488 F.2d 4, 9 (9th Cir.1973).

Even so, the police could lawfully enter the Llaguno house without a warrant or the homeowner's consent only if there was probable cause to believe that the killer was in the house. Although the words "probable cause" appear only in the second clause of the Fourth Amendment, which deals with warrants, and we have said that the police did not have to get a warrant in this case, the words are also used to describe an essential ingredient of reasonableness, see, e.g., Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); and all searches and seizures must be reasonable to comply with the Fourth Amendment.

It is true that the...

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