9 F.3d 506 (6th Cir. 1993), 92-4009, United States v. Johnson

Docket Nº:92-4009.
Citation:9 F.3d 506
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Emil A. JOHNSON, Defendant-Appellant.
Case Date:November 10, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 506

9 F.3d 506 (6th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Emil A. JOHNSON, Defendant-Appellant.

No. 92-4009.

United States Court of Appeals, Sixth Circuit

November 10, 1993

Argued Aug. 6, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 3, 1994.

Bradley D. Barbin, David J. Bosley (argued and briefed), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.

David H. Bodiker (argued and briefed), Bodiker & Holland, Columbus, OH, for defendant-appellant.

Before: KEITH and KENNEDY, Circuit Judges; and JORDAN, District Judge. [*]

KENNEDY, Circuit Judge.

Defendant Emil A. Johnson appeals from the order of the District Court denying his motion to suppress evidence seized by local and federal law enforcement officials during a warrantless search of his home. On appeal, defendant contends that there were no exigent circumstances justifying the warrantless entry and search of his residence. For

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the reasons set forth below, we affirm the denial of the motion to suppress.

I.

The record before the District Court disclosed the following as the basis for the search of defendant's home. On January 11, 1991, at approximately 2:20 p.m., Officers David Weisgerber and Bruce Orlov of the Columbus Police Department were dispatched to defendant's residence at 83 McMillan Street after a neighbor called to report a burglary in progress at that residence. The neighbor reported seeing individuals crawl through the window. Upon arrival at the residence, the officers discovered that the doors were locked and that a kitchen window had a broken pane. Their knocks were not responded to.

As the officers approached the broken window, they observed a black female, later identified as Angela Lewis, defendant's girlfriend, and a black male inside the house. The officers, with weapons drawn, called the individuals to the broken window and asked them if they lived there. The female (Lewis) stated that she lived there but that she could not open the door because she did not have a key. 1 She also had no identification. In response to an inquiry by the police officers, Lewis stated that there were no other people inside the house. After directing the two individuals to climb out through the window, the officers secured them in a police vehicle.

The officers then returned to the house where they observed two more women inside. These women were subsequently identified as friends of Lewis. According to Lewis, one of the women had brought some crack cocaine and a pipe to the house and had attempted to hide these items when the police arrived. Consequently, the women did not reveal themselves to the police immediately and were acting in a nervous and suspicious manner. The officers directed these women to leave the house through the window and then secured them in a police vehicle. Thereafter, the officers decided to enter the house to make sure no one else was inside.

Officer Weisgerber entered the house through the window and forced open the door for the other officers who had arrived on the scene. The officers then walked through the residence to determine if any other individuals were inside. While doing so, the officers observed, in plain view, ammunition, gun clips, a dynamite wick or fuse, two pipes with end caps, books on how to make explosive devices, and a piece of white PVC pipe with tape on the end. Officer Weisgerber also observed a locked box upstairs with a sign on it which stated: "This contains five pounds of black powder and if moved, will explode." While in the residence, the officers did not touch, pick up or seize any of the items observed in plain view. After leaving the house, the officers notified the bomb squad of a possible booby-trap situation. The officers also made a radio request for the owner to come to the house or for the police to bring him there. They obtained his name and place of employment from Lewis.

Members of the Columbus Fire Department bomb squad arrived at the residence and Lieutenant McConaha proceeded to go inside. He observed metal pipes, a model rocket or cannon fuse, black powder, ammunition and books on explosives. He also observed the piece of white PVC pipe under a desk in the bedroom as well as the locked box which he described as a gun case and note indicating that it would blow up. All of these items were in plain view and Lt. McConaha did not touch or seize anything. Lt. McConaha concluded that there was a real risk that explosive devices might be located on the premises since all of the ingredients for making a bomb were present. After conferring with the Columbus Police, Lt. McConaha decided that the dangerousness of the situation called for the involvement of the Bureau of Alcohol, Tobacco and Firearms ("BATF").

Agent Dan Ozbolt of the BATF arrived at the residence and was escorted through by McConaha. Agent Ozbolt observed the various

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items in the house, including the gun safe and the white PVC pipe with duct tape over one end and a hole in the center of the tape. Agent Ozbolt picked up the pipe to examine it because he suspected it might be a pipe bomb in the state of being manufactured. A BATF agent then called one of the explosive technologists at the BATF lab in Washington, D.C. who confirmed that the items found in the residence could constitute the component parts of a pipe bomb.

Upon defendant's arrival at the scene, he was asked and refused to consent to a search of his home. He declined to press charges against any of the persons who had been in the house and they were released at the scene. In view of defendant's refusal to consent to a search, Agent Ozbolt prepared an affidavit and obtained a search warrant from a magistrate judge. During the execution of the search warrant, agents seized the piece of white PVC pipe with gray duct tape and a hole in the tape. The pipe was sent to the BATF lab in Washington where further analysis revealed it to be a silencer.

On September 12, 1991, defendant was charged with one count of knowingly receiving and possessing an unregistered silencer, in violation of 26 U.S.C. Sec. 5861(d) and Sec. 5871, and one count of knowingly receiving and possessing a silencer not identified by a serial number, in violation of 26 U.S.C. Sec. 5861(i) and Sec. 5871.

Defendant filed a Motion to Suppress the evidence seized from his home claiming that the agents did not have sufficient probable cause to believe that an offense had been committed and that no exigent circumstances existed to justify the warrantless entry and search. The District Court denied the motion.

Defendant then withdrew his previously entered not guilty pleas and entered conditional guilty pleas to counts 1 and 2 of the indictment. On September 18, 1992, defendant was sentenced to twenty-one (21) months imprisonment on counts 1 and 2, to be served concurrently, and to be followed by a two-year period of supervised release.

II.

Defendant contends that the District Court erred in concluding that there were exigent circumstances justifying the warrantless entry and "protective sweep" of his residence which resulted in the discovery and seizure of the silencer. It is well settled that "[a]bsent exigent circumstances, police officers may not enter an individual's home or lodging to effect a warrantless arrest or search." United States v. Morgan, 743 F.2d 1158, 1161 (6th Cir.1984) (citing Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980)), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985). In fact, "the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' " United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir.1988) (quoting United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752 (1972)). Therefore, the Supreme Court has declared that warrantless entries and searches inside a residence are "presumptively unreasonable," Payton, 445 U.S. at 586, 100 S.Ct. at 1380, and the police bear a "heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 2098, 80 L.Ed.2d 732 (1984); Morgan, 743 F.2d at 1162 ("the burden is on the government to demonstrate exigency"). This Court has stated that "[t]he exigent circumstances exception relies on the premise that the existence of an emergency situation, demanding urgent police action, may excuse the failure to procure a search warrant." United States v. Radka, 904 F.2d 357, 361 (6th Cir.1990).

This Court reviews de novo the District Court's legal conclusions with respect to the issue of exigency; however, the court's factual findings on the existence of exigent circumstances will be disturbed only if they are clearly erroneous. Id. In reviewing the District Court's finding that exigent circumstances existed at the time of the warrantless search, we consider the totality of the circumstances and the "inherent necessities of the situation at the time." Id. at 362 (quoting United States v. Rubin, 474 F.2d 262, 268

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(3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973)).

  1. Police Officers' Initial Entry

    Exigent circumstances justify a warrantless entry into a residence only where there is also probable cause to enter the residence. Sangineto-Miranda, 859 F.2d at 1511 n. 6. "The establishment of probable cause 'requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.' " United States v. Ogbuh, 982 F.2d 1000, 1002 (6th Cir.1993). The officers here were responding to a call reporting a possible burglary in progress. Upon arrival at...

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