U.S. v. Najar

• Decision Date: 21 June 2006
• Docket Number: No. 05-2000.,05-2000.
• Citation: 451 F.3d 710
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard B. NAJAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

451 F.3d 710

UNITED STATES of America, Plaintiff-Appellee, v. Richard B. NAJAR, Defendant-Appellant.

No. 05-2000.

United States Court of Appeals, Tenth Circuit.

June 21, 2006.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Damon P. Martinez, Assistant United States Attorney, with her on the briefs), Las Cruces, NM, for Plaintiff-Appellee.

Dennis J. Candelaria, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, with him on the briefs), Las Cruces, NM, for Defendant-Appellant.

Before SEYMOUR, BALDOCK and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

This case presents a timely question of some significance: Under what circumstances does the Fourth Amendment permit police to enter a home without a warrant or permission in order to investigate a reasonable belief that a person within is endangered?

Early one morning a police dispatcher received a 911 call. Upon answering, he was met with silence and then a disconnect. He made several attempts to reach the 911 caller. Each time his call was answered but quickly disconnected without a word. He dispatched officers to investigate. Arriving at a mobile home, the officers knocked on the door and announced their presence and purpose. A person could be seen and heard within the home but would not respond to the officers. As the occupant continued to move about, the officers persisted, with increasing vigor, to attract attention. Eventually Richard Najar came to the door. He denied making a 911 call and said no other person was present in the home. Fearing for someone within, the officers entered over Najar's objection. One went to the area where Najar had been moving about to search for a possible victim. An uninjured woman was discovered. The other two officers stayed near the entry door in the living room from where they noticed a shotgun leaning against the wall. They seized the shotgun. Najar was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

Najar filed a motion to suppress the shotgun evidence. Initially, the district court granted Najar's motion but upon reconsideration, denied it. United States v. Najar, No. CR 03-0735 JB, 2004 WL 3426123 (D.N.M. Sept.3, 2004). Najar entered a conditional guilty plea and was sentenced to thirty months imprisonment. On appeal, Najar admits the shotgun was in plain view but claims the officers' vantage point came from their entry into his home in violation of the Fourth Amendment.

At sentencing, the district court imposed the minimum guidelines sentence of thirty months imprisonment followed by two years supervised release. The court also imposed an identical alternative sentence, in the event the guidelines be declared unconstitutional. Najar contends his sentence, imposed under mandatory guidelines, constitutes plain error requiring re-sentencing. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Our jurisdiction derives from 28 U.S.C. § 1291. We AFFIRM.

I. The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST., amend. IV.

Honoring the clearly stated language of the amendment, the Supreme Court has repeatedly recognized that only unreasonable searches are proscribed. Illustrative are Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (the Fourth Amendment's "`central requirement' is one of reasonableness"), and Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("The touchstone of the Fourth Amendment is reasonableness."). In other cases the Court has said the home is entitled to the greatest Fourth Amendment protection. Illustrative are Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed") (quotations omitted), and Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ("At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.") (internal citation and quotations omitted).

Thus, "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton, 445 U.S. at 586, 100 S.Ct. 1371; see Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004).¹ But the presumption is not absolute. "When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." McArthur, 531 U.S. at 330, 121 S.Ct. 946.² Thus, the Fourth Amendment does not prevent a government search of one's house in the absence of a warrant, but it does guarantee "that no such search will occur that is `unreasonable.'" Illinois v. Rodriguez, 497 U.S. 177, 183, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). This case is at the intersection of the warrant/reasonableness debate.

The typical Fourth Amendment case deals with police investigation of crime and pursuit of criminals. Almost lost in the welter of search and seizure cases are those involving government actors, often police officers, pursuing other ends. Such legitimate, necessary activities may nevertheless create friction between individual liberties and the need for prompt decisive government action. But that friction is unattended by the typical concern of buffering investigatory zeal with judicial oversight. For example, in Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) the Court told us "the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." It cited Wayne v. United States in which Chief Justice (then Judge) Burger observed:

[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Fires or dead bodies are reported to police by cranks where no fires or bodies are to be found. Acting in response to reports of "dead bodies," the police may find the "bodies" to be common drunks, diabetics in shock, or distressed cardiac patients. But the business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process. Even the apparently dead often are saved by swift police response. A myriad of circumstances could fall within the terms "exigent circumstances" . . ., e.g., smoke coming out a window or under a door, the sound of gunfire in a house, threats from the inside to shoot through the door at police, reasonable grounds to believe an injured or seriously ill person is being held within.

318 F.2d 205, 212 (D.C.Cir.1963) (Burger, J.) (emphasis added). From this discussion in Mincey, the emergency aid exigency emerged, informed by the practical recognition of critical police functions quite apart from or only tangential to a criminal investigation. "[B]y design or default, the police are also expected to reduce the opportunities for the commission of some crimes through preventative patrol and other measures, aid individuals who are in danger of physical harm, assist those who cannot care for themselves, resolve conflict, create and maintain a feeling of security in the community, and provide other services on an emergency basis." 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 6.6 (4th ed.) (quotations omitted).

The multiple roles of police officers was most recently recognized by the Supreme Court in Brigham City, Utah v. Stuart, ___ U.S. ___, 126 S.Ct. 1943, ___ L.Ed.2d ___ (2006). There, police officers responded to a 3 a.m. call about a loud party. Upon arrival, the officers heard shouting inside the residence. Proceeding down the driveway, they saw two juveniles drinking beer in the backyard. Through the screen door and windows, they observed four adults attempting to restrain another juvenile. When the juvenile broke away, he struck one of the adults, causing the adult to spit blood into a nearby sink. An officer opened the screen door and announced the police's presence. Unheard over the tumult, the officer entered the kitchen and shouted out. As the occupants noticed his presence, the altercation gradually ceased. Id. at 1946.

The adults were arrested and charged with contributing to the delinquency of a minor, disorderly conduct and intoxication. They moved to suppress all evidence obtained after the officers entered the home, claiming the warrantless entry violated the Fourth Amendment. The trial court granted the motion and the Utah Court of Appeals agreed. Id. The Utah Supreme Court affirmed, holding the injury caused by the juvenile's punch was insufficient to trigger the emergency aid or exigent circumstances doctrines. Id. at 1946-47.

The Supreme Court reversed, noting "[o]ne exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury." Id. at 1947. The test is whether the circumstances,...