U.S. v. Dighera

• Decision Date: 02 February 1998
• Docket Number: No. 97-40072-01-DAC.,97-40072-01-DAC.
• Citation: 2 F.Supp.2d 1377
• Parties: UNITED STATES of America, Plaintiff, v. Shawn L. DIGHERA, Defendant.
• Court: U.S. District Court — District of Kansas

2 F.Supp.2d 1377

UNITED STATES of America, Plaintiff, v. Shawn L. DIGHERA, Defendant.

No. 97-40072-01-DAC.

United States District Court, D. Kansas.

February 2, 1998.

Robin D. Fowler, Office of U.S. Atty., Topeka, KS, for Plaintiff.

Alan G. Warner, Warner, Bixler & Associates, L.L.C., Topeka, KS, Steven D. Rosel, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On September 17, 1997, the grand jury returned a nine count indictment charging the defendant, Shawn L. Dighera, with multiple drug trafficking crimes, including manufacturing methamphetamine. The evidence supporting these charges was seized by officers executing a search warrant. Prior to obtaining the search warrant, the officers had responded to an alarm at Dighera's residence. Finding a door to the residence open, officers entered, finding no one inside the home. However, officers conducting the search viewed substantial evidence of narcotics trafficking laying in plain sight. Based upon their observation of those materials in plain sight, officers obtained the search warrant.

This case comes before the court upon the defendant's "Motion to Suppress" (Dk.21). In his motion, Dighera apparently argues that the initial entrance and subsequent warrantless search of his home by law enforcement officers were in violation of the Fourth Amendment. Specifically, Dighera argues that no exigent circumstances justified the officers' initial entry. Dighera also contends that once inside, the officers' search was not limited in scope to the purported exigent circumstances. The government responds, arguing that the officers' initial entry to the property was in response to a security alarm. Finding a door open, officers lawfully entered under the "exigent circumstances" exception to the Fourth Amendment. The government also contends that the initial search of the residence was limited to searching places that a burglar might have secreted himself, such as in rooms and closets.

Legal Standards

"It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." United States v. Scroger, 98 F.3d 1256, 1259 (10th Cir.1996) (citing Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)), cert. denied, ___ U.S. ___, 117 S.Ct. 1324, 137 L.Ed.2d 485 (1997). "Therefore, absent consent or exigent circumstances, police may not enter a citizen's residence without a warrant." Id.

Burden of Proving Exigent Circumstances

The government bears the burden of proving exigency. United States v. Wicks, 995 F.2d 964, 970 (10th Cir.), cert. denied, 510 U.S. 982, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993).

"In assessing whether the burden was met, we are `guided "by the realities of the situation presented by the record."'" United States v. Cuaron, 700 F.2d at 586 (quoting United States v. McEachin, 670 F.2d 1139, 1144 (D.C.Cir.1981) (quoting United States v. Robinson, 533 F.2d 578, 581 (D.C.Cir.1975) (en banc))). We must "`evaluate the circumstances as they would have appeared to prudent, cautious and trained officers.'" United States v. Cuaron, 700 F.2d at 586 (quoting United States v. Erb, 596 F.2d 412, 419 (10th Cir.), cert. denied, 444 U.S. 848, 100 S.Ct. 97, 62 L.Ed.2d 63 (1979)). We note, also, that there is "`no absolute test for the presence of exigent circumstances, because such a determination ultimately depends on the unique facts of each controversy.'" United States v. Justice, 835 F.2d 1310, 1312 (10th Cir.1987) (quoting United States v. Jones, 635 F.2d 1357, 1361 (8th Cir.1980)), cert. denied, 487 U.S. 1238, 108 S.Ct. 2909, 101 L.Ed.2d 940 (1988).

"When officers have reason to believe that criminal evidence may be destroyed, or removed, before a warrant can be obtained, the circumstances are considered sufficiently critical to permit officers to enter a private residence in order to secure the evidence while a warrant is sought."

United States v. Chavez, 812 F.2d 1295, 1299 (10th Cir.1987) (quoting United States v. Cuaron, 700 F.2d 582, 586 (10th Cir.1983)) (citations omitted); see also United States v. Carr, 939 F.2d at 1448; United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir.1988). In addition to insuring that evidence will not be destroyed, officers may also make a warrantless arrest or conduct a warrantless search if they believe that their own lives or the lives of others are at risk. Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct 1642, 1645-46, 18 L.Ed.2d 782 (1967) ... United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986) ("[t]he 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. Gonzalez, 763 F.2d 1127, 1132 n. 5 (10th Cir.1985) ("`[e]xigent circumstances' generally refers to ...: imminent danger of death or serious bodily harm, imminent danger of destruction of important property, response to an emergency, or hot pursuit.").

Id.

Plain View Exception To Fourth Amendment

"Law enforcement authorities may seize contraband in plain view without a warrant if three conditions are met: (1) the law enforcement authorities are lawfully in a position from which they may view the object; (2) the object's incriminating character is immediately apparent; and, (3) the authorities have a lawful right of access to the object." United States v. Lang, 81 F.3d 955, 967 (10th Cir.1996) (citing Minnesota v. Dickerson, 508 U.S. 366, 374, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)).

Findings of Fact

On December 10, 1996, officers of the Topeka police department were dispatched to the residence located at 3620 S.W. Garfield at about 2:00 a.m. The dispatch was precipitated by a security alarm activation at the defendant's home which was reported to the police department by Knight's Alarm Company. When officers responded to the scene, they found the front door open and that no one from inside the residence responded to the police. No other signs of a break-in were apparent. Officers announced their presence upon entering the home through the open door to check to see whether a burglary had occurred or was in progress. While conducting their search for burglars or other persons inside the residence, officers observed drug paraphernalia in plain view. The residence was then secured, and a search warrant was obtained based upon their observations. A number of drug-related items were seized during the search of the premises pursuant to the search warrant. The seizure of those items eventually lead to the current charges against the defendant.

Analysis

Although the Tenth Circuit has apparently not addressed this specific issue, it appears well-settled that responding to a burglary alarm (or other reports of a possible burglary) is an exigent circumstance authorizing the police to make a warrantless entry to a home. In United States v. Tibolt, 72 F.3d 965, 970-71 (1st Cir.1995), cert. denied, 518 U.S. 1020, 116 S.Ct. 2554, 135 L.Ed.2d 1073 (1996), the First Circuit, considering facts somewhat similar to the case at bar,¹ recently found that officers responding to a security alarm were presented with exigent circumstances permitting an immediate warrantless entry:

A security alarm had been activated, and when JK Security placed a call to the Dombrowski residence, it had received no answer. These circumstances severely undercut any likelihood that the security alarm had been activated inadvertently by a resident. Moreover, upon his arrival approximately ten minutes later, Palazzola checked all windows and doors at the Tibolt residence. Instead of finding all doors secured, as one might reasonably expect while the residents are away, he found an unlocked door on the rear deck and received no response to his efforts to communicate with anyone who might be inside. These circumstances significantly enhanced the likelihood of an intruder.

For similar reasons, we conclude that Palazzola was presented with "exigent circumstances" permitting an immediate warrantless entry. Without entering, he could not know but what an intruder had managed to get into the residence, and even injured or captured a resident, then fled; or had been caught off guard by the police and remained in the residence with a forcibly detained resident. Even the authorities cited by Tibolt acknowledge the potential exigencies attending such circumstances. See Erickson, 991 F.2d at 533 ("In a wide variety of contexts, this and other circuits have upheld warrantless searches conducted during burglary investigations under the rubric of exigent circumstances."); Commonwealth v. Fiore, 9 Mass.App.Ct. 618, 403 N.E.2d 953, 955 ("It seems clear to us that a house break without more as set out in the affidavit raises the possibility of danger to an occupant and of the continued presence of an intruder and indicates the need to secure the premises. In such circumstances `(t)he right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers.'") (citation omitted), cert. denied, 449 U.S. 938, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980). Hindsight discloses, of course, that Palazzola was mistaken. Nevertheless, at the time, see Rodriguez, 497 U.S. at 186, 110 S.Ct. at 2800, an officer confronted with these circumstances reasonably could have concluded that there was an imminent risk "to the lives or safety of the public," Hegarty, 53 F.3d at 1374, or to an injured or immobilized resident. See, e.g., Murdock v. Stout, 54 F.3d 1437, 1443 (9th Cir.1995) (upholding warrantless...