U.S. v. Hill

• Decision Date: 18 August 2011
• Docket Number: No. 10–4320.,10–4320.
• Citation: 649 F.3d 258
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Torrance G. HILL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

649 F.3d 258

UNITED STATES of America, Plaintiff–Appellee,

v.Torrance G. HILL, Defendant–Appellant.

No. 10–4320.

United States Court of Appeals, Fourth Circuit.

Argued: March 23, 2011.Decided: Aug. 18, 2011.

ARGUED: Caroline Swift Platt, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Mysti Dawn Degani, Office Of The United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Kevin R. Brehm, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Michael P. Ben'Ary, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.Before GREGORY, AGEE, and KEENAN, Circuit Judges.Vacated and remanded with instructions by published opinion. Judge GREGORY wrote the majority opinion, in which Judge KEENAN joined. Judge AGEE wrote a dissenting opinion.

OPINION

GREGORY, Circuit Judge:

This case is about the “centuries-old principle of respect for the privacy of the home.” Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Defendant, Torrance G. Hill, filed a motion to suppress evidence obtained in his residence without a warrant. The district court denied the motion, and determined that the police acted legally when they entered Hill's home. Hill subsequently entered a conditional guilty plea while reserving his right to appeal the denial of his motion to suppress. We now hold that the district court erred in finding that the police's initial entry into the house was valid, but that it properly found Ms. Alvarez's consent for the second search was valid. We remand to the district court for a determination as to whether the taint from the initial illegal entry into the house was dissipated by Ms. Alvarez's consent.

I.

The pertinent facts of this case take place over the span of a month and a half. On June 25, 2009, Hill was informed by Virginia State Trooper Cox that his license was suspended. When asked, Hill gave the officer an address in Alexandria, Virginia. Hill testified that he told Trooper Cox that the address was out of date because he could not remember his new mailing address in Lorton, Virginia (hereinafter “the Lorton townhouse”) where he had moved with his girlfriend, Ms. Alvarez, and their eight-year-old son in May of 2009.

On July 12, 2009, Officer Albert from the Fairfax Police Department approached a group of men, including Hill, who were allegedly loitering, and obtained their identification. Later, after the men had dispersed, Officer Albert discovered an electronic scale and concealed marijuana near where the group of men were gathered. Early the next morning, he swore out an affidavit to obtain an arrest warrant for Hill. The warrant for Hill's arrest listed his address as “unknown.”

On July 17, 2009, Ms. Alvarez called 911 from the Lorton townhouse because of an argument she was having with Hill. Ms. Alvarez testified at the suppression hearing that she hung up the phone before speaking with the 911 operator, but Officer Coligan was dispatched to the Lorton townhouse nonetheless. Ms. Alvarez also testified that the argument did not involve physical violence. Officer Coligan testified that when he arrived Ms. Alvarez told him that Hill resided at the Lorton townhouse, but had left because of the outstanding warrant for his arrest. Officer Coligan also testified that the door frame of the house was damaged when he arrived, and he discussed having it fixed by the landlord with Ms. Alvarez. He forwarded his report to Sergeant Milam from the warrant department.

Hill spent more than half of his nights at the Lorton townhouse between the July 17th incident and July 29th, 2009, but this was not known to police at the time.

On July 29, 2009, Sergeant Milam, Detective Studer, Officers Pleva, and Officer Kroll from the Fairfax Police Department arrived at the Lorton townhouse with a warrant for Hill's arrest. The warrant indicated that Hill's address was unknown. Sergeant Milam testified that he thought there was an eighty percent chance that Hill would not return to the Lorton townhouse to avoid being apprehended by police. Instead, Sergeant Milam reported, the police were trying to communicate with Ms. Alvarez concerning Hill's whereabouts.

Upon arrival, the police knocked on the door. They heard noises which they believed could have been voices or the television. The noises were completely unresponsive to police knocking. Milam noted that the doorframe was damaged. He placed a call to Ms. Alvarez who indicated that she was at work and that the only person who could be at the Lorton townhouse was her sister. Neither the police nor Ms. Alvarez expressed concern about Ms. Alvarez's sister's safety, and, notably, Milam did not obtain consent to enter the house during this conversation. Shortly thereafter, Milam decided to turn the doorknob and opened the door. Upon opening the door, Milam discovered Hill and a friend sitting on the couch. They confiscated Hill's phone, which had a text message from Ms. Alvarez indicating that the police were at the front door.

Officer Pleva conducted a protective search of the home allegedly looking for Ms. Alvarez's sister. Pleva also testified he smelt burnt marijuana. The officers located a small amount of marijuana and a grinder on the kitchen table. About an hour later, upon arriving home from work, Ms. Alvarez gave her consent to search the house. There is a factual dispute about whether Ms. Alvarez freely gave her consent to search the house. Despite her allegedly valid consent, police took steps to obtain a search warrant. However, the search of the Lorton townhouse was conducted by the time the search warrant was executed by Officer Kroll. The search turned up a two-shot revolver, an empty holster, a bulletproof vest, scales, ammunition, marijuana, and crack cocaine.

Hill was charged in a superseding indictment with one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a) and one count of possession of a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. § 924(c).

Before trial, Hill filed a motion to suppress evidence obtained as a result of the search of the Lorton townhouse. The court denied the motion first orally and later in a written order.

Hill entered a conditional plea of guilty to the first count while retaining his right to appeal the denial of his motion to suppress. The district court entered a judgment of conviction and sentenced him to 120 months of incarceration. Hill timely appealed.

II.

On appeal from a motion to suppress, this Court reviews the factual findings of a district court for clear error, and reviews legal determinations de novo. United States v. Kellam, 568 F.3d 125, 132 (4th Cir.2009).

This case requires an analysis of four doctrines in order to determine whether or not the fruits of the search of Hill's home should be suppressed. First, we determine whether the search of Hill's residence was justified as a valid execution of Hill's arrest warrant. Second, we determine whether the exigency doctrine permits entry into the house. Third, we determine whether Ms. Alvarez's consent to search the house was valid. Finally, we determine whether the taint from the initial entry was dissipated by Ms. Alvarez's consent.

A.

i.

The police did not have sufficient reasons upon which to base their belief that Hill was present in the home to execute their arrest warrant. In Payton v. New York, the Supreme Court concluded that police may enter into a home without a search warrant in order to execute an arrest warrant only if “there is reason to believe [that the subject of the warrant] is within.” 445 U.S. 573, 602, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Generally, circuits have broken the analysis of whether the entry was lawful into two conjunctive parts: (1) whether there is reason to believe that the location is the defendant's residence, and (2) whether or not there was a “reasonable belief” that he would be home. See, e.g., United States v. Graham, 553 F.3d 6, 13 (1st Cir.2009); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir.1995), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995).

Circuits have employed a variety of approaches in defining reasonable belief and its relationship to probable cause. Some circuits have found that reasonable belief is the same as probable cause. See United States v. Hardin, 539 F.3d 404, 416 (6th Cir.2008) (probable cause is the correct standard to use in determining an officer's reasonable belief that the subject of a warrant is present in the home); United States v. Gorman, 314 F.3d 1105, 1114 (9th Cir.2002) (same); see also United States v. Jackson, 576 F.3d 465, 469 (7th Cir.2009) (noting an inclination to believe “that ‘reasonable belief’ is synonymous with probable cause.”).

Other circuits have simply found that the distinction between reasonable belief and probable cause is indefinite or negligible. See United States v. Barrera, 464 F.3d 496, 501 n. 5 (5th Cir.2006) (noting that the distinction between probable cause and reasonable belief is “more about semantics than substance”), cert. denied, 550 U.S. 937, 127 S.Ct. 2247, 167 L.Ed.2d 1096 (2007); Magluta, 44 F.3d at 1535 (noting that it is “difficult to define the Payton ‘reason to believe’ standard, or to compare the quantum of proof the standard requires with the proof that probable cause requires.”).

While still other circuits have found that the requirements of reasonable belief are something less than probable cause. See United States v. Thomas, 429 F.3d 282, 286 (D.C.Cir.2005) (“reasonable belief” requires less than probable cause), cert. denied, 549 U.S. 1055, 127 S.Ct. 660, 166 L.Ed.2d 519 (2006); Valdez v. McPheters, 172 F.3d 1220, 1227 n. 5 (10th Cir.1999) (same); United States v. Lauter, 57...