U.S. v. MacDonald

• Decision Date: 01 October 1990
• Docket Number: No. 277,D,277
• Citation: 916 F.2d 766
• Parties: UNITED STATES of America, Appellee, v. Errol MacDONALD, Defendant-Appellant. ockets 89-1262, 89-1263.
• Court: U.S. Court of Appeals — Second Circuit

Page 766

916 F.2d 766

59 USLW 2258

UNITED STATES of America, Appellee, v. Errol MacDONALD, Defendant-Appellant.

No. 277, Dockets 89-1262, 89-1263.

United States Court of Appeals Second Circuit.

Argued Before the In Banc Court

June 25, 1990.

Decided Oct. 1, 1990.

Noah Lipman, New York City, for defendant-appellant.

Stephen Fishbein, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Kerri Martin Bartlett, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before OAKES, Chief Judge, and FEINBERG, MESKILL, NEWMAN, KEARSE, CARDAMONE, WINTER, PRATT, MINER, ALTIMARI, MAHONEY and WALKER, Circuit Judges.

ALTIMARI, Circuit Judge:

We granted rehearing in banc to consider (1) whether a warrantless entry was lawful pursuant to the exigent circumstances exception to the warrant requirement of the Fourth Amendment, and if so, (2) whether law enforcement agents improperly created the exigent circumstances. These issues arise from defendant Errol MacDonald's appeal from a judgment entered in the United States District Court for the Southern District of New York (Robert J. Ward, Judge ) convicting MacDonald, after a jury trial, of possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. Sec. 2, and of the use of a firearm in connection with a narcotics offense in violation of 18 U.S.C. Secs. 924(c) and 2.

A divided panel of this Court reversed Judge Ward's finding that exigent circumstances justified a warrantless entry by law enforcement agents into a Manhattan apartment from which MacDonald and his associates operated a retail drug outlet, and remanded for the purpose of determining MacDonald's standing to assert the Fourth Amendment claim. See United States v. Thomas, 893 F.2d 482 (2d Cir.1990). On in banc consideration, we agree with Judge Ward. We therefore vacate the decision of the panel and affirm the judgment of conviction entered in the district court. ¹

BACKGROUND

The facts are undisputed, and we shall summarize only what is pertinent to the exigent circumstances issue.

In May 1988, an informant alerted the New York Drug Enforcement Task Force ("Task Force") of a possible narcotics operation utilizing two apartments in a Manhattan apartment building located at 321 Edgecombe Avenue. On the evening of September 8, 1988, agents of the Task Force established surveillance outside the apartment building. The agents observed numerous indications that a retail narcotics exchange was being operated out of Apartment 1-O, a one-room efficiency on the first floor.

Shortly before ten o'clock that evening, one of the agents of the Task Force, James Agee, went to Apartment 1-O in an attempt to transact an undercover purchase of narcotics. After knocking and being admitted by an unidentified man, Agent Agee encountered Paul Thomas, who was sitting in a chair next to the door and pointing a cocked 9 mm. semi-automatic weapon at the floor, but in Agee's direction. Defendant Errol MacDonald, who was sitting on a couch counting a stack of money, was within easy reach of a .357 magnum revolver. There were four other men, including the man who admitted Agee, in the apartment which contained large quantities of what appeared to Agee to be marijuana and cocaine. Agee detected the distinct odor of marijuana smoke. He handed the unidentified doorman a prerecorded five dollar bill in return for a package of marijuana. Agee then immediately left the building and reported his observations to the other Task Force members waiting outside.

Approximately ten minutes after the controlled purchase, Agee returned to the apartment with reinforcements. After knocking on the door and identifying themselves, the agents heard the sounds of shuffling feet. They also simultaneously received a radio communication from agents remaining outside the building informing them that the occupants of the first floor apartment were attempting to escape through a bathroom window. The agents at the apartment door then used a battering ram to force entry.

The agents arrested five men in the apartment, four in the bathroom and one hiding in a closet. As they performed a security sweep of the apartment, they discovered in plain view the two loaded weapons, large quantities of cocaine and marijuana, narcotics paraphernalia, packaging materials and several thousand dollars in cash. Additional cash was recovered from the persons of the suspects. The unidentified sixth man, who only ten minutes earlier actually transacted the sale with Agee, had apparently escaped.

At a pretrial hearing, MacDonald moved to exclude the evidence recovered from Apartment 1-O. He maintained that the seizure of the physical evidence violated his Fourth Amendment right, since the agents entered the apartment without a warrant. The district court, however, denied the motion to suppress on the ground that exigent circumstances justified the warrantless entry. The district court first pointed to the gravity of the offenses involved and concluded that the "[p]resence of the narcotics and the weapons under the circumstances suggested that the defendants were engaged in ongoing criminal activities and were in a position to use the weapons thereby creating an emergency situation justifying immediate entry." The district court further found that the law enforcement agents' warrantless entry was justified by the need to prevent loss of evidence. The court noted that the agents had been informed that the suspects utilized at least one other apartment in the building and could easily have moved the contraband out of Apartment 1-O. The court also reasoned that "once the agents had knocked on the door and identified themselves, and the door was not opened, any delay in arresting the suspects would be likely to result in the destruction of evidence, particularly the cocaine, which could be disposed of easily, by being flushed down the bathroom toilet." Finally, the district court found that obtaining a warrant at approximately ten o'clock at Following his conviction after a jury trial, MacDonald appealed the district court's decision not to exclude the evidence. A majority of a panel of this Court reversed the district court, holding that the finding of exigent circumstances was clearly erroneous and that any exigency that may have existed after the agents knocked at the door was created by the pretextual conduct of law enforcement agents returning to the apartment and identifying themselves at the door. The panel remanded the matter to the district court for the purpose of determining whether MacDonald had standing to assert the claim under the Fourth Amendment. We then accepted the Government's suggestion to reconsider this case in banc.

night "would have taken a matter of hours, thereby increasing the risk that evidence would be lost or destroyed."

DISCUSSION

The warrant requirement of the Fourth Amendment guarantees the fundamental right to be free from government intrusion into the privacy of one's home. See Payton v. New York, 445 U.S. 573, 585-86, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948); Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). It is well-settled, however, that the warrant requirement must yield in those situations where exigent circumstances demand that law enforcement agents act without delay. See Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967); United States v. Crespo, 834 F.2d 267, 270-71 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988). The instant case affords us the opportunity to revisit the exigent circumstances exception to the warrant requirement.

We begin by noting the appropriate standards of review. A district court's determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous. United States v. Cattouse, 846 F.2d 144, 146 (2d Cir.), cert. denied, 488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 335 (1988); see Minnesota v. Olson, --- U.S. ----, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85 (1990) (showing deference to the state court's "fact-specific" finding of exigent circumstances). Moreover, the test for determining whether a warrantless entry is justified by exigent circumstances is an objective one that turns on the district court's examination of the totality of circumstances confronting law enforcement agents in the particular case. See United States v. Schaper, 903 F.2d 891, 894 (2d Cir.1990); United States v. Miles, 889 F.2d 382, 383 (2d Cir.1989) (per curiam); United States v. Zabare, 871 F.2d 282, 290-91 (2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 161, 107 L.Ed.2d 119 (1989).

The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an "urgent need" to render aid or take action. Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (in banc ) (quoted in United States v. Martinez-Gonzalez, 686 F.2d 93, 100 (2d Cir.1982), and Crespo, 834 F.2d at 270). We have adopted the factors set out in Dorman, 435 F.2d at 392-93, as guideposts intended to facilitate the district court's determination. See United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978); see also United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.) (per curiam), cert. denied, 481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987); United States v. Baldacchino, 762 F.2d 170, 176 (1st Cir.1985); United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir.1978); United States v. Phillips, 497 F.2d 1131, 1135 (9th Cir.1974); United States v. Shye, 492 F.2d 886, 891 (6th Cir.1974) (per curiam); Vance v. North Carolina, 432 F.2d 984, 990 (4th Cir.1970). The Dorman factors have been...