USA v. Etchin

• Citation: 614 F.3d 726
• Decision Date: 04 August 2010
• Docket Number: Nos. 09-1079, 09-1276, 09-1308.,s. 09-1079, 09-1276, 09-1308.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Katrice ETCHIN, Albert M. Cole, and Maurice Bowman, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

614 F.3d 726

UNITED STATES of America, Plaintiff-Appellee,

v.Katrice ETCHIN, Albert M. Cole, and Maurice Bowman, Defendants-Appellants.

Nos. 09-1079, 09-1276, 09-1308.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 16, 2009.

Decided Aug. 4, 2010.

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Timothy M. O'Shea, Attorney (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Anthony C. Delyea, Attorney (argued), Delyea Law Office, LLC, Madison, WI, for Katrice Etchin.

Reed Cornia, Attorney (argued), Cornia Law, LLC, Madison WI, for Albert M. Cole.

David A. Geier, Attorney (argued), Larowe, Gerlach & Roy, Madison, WI, for Maurice Bowman.

Before CUDAHY, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

Maurice Bowman, Albert Cole, and Katrice Etchin pleaded guilty to drug crimes after participating in an operation run by Bowman that supplied crack cocaine to street dealers in Madison, Wisconsin. On appeal, Bowman and Etchin challenge the lower court's decision to admit evidence, including 150 grams of crack, discovered in a search of Etchin's apartment. In addition, all three contest their sentences.

When police officers knocked on Etchin's door, she told them they could not come in without a warrant. The police entered anyway, securing the area to preserve the status quo while another officer applied for a search warrant. It was not until four hours later, with warrant in hand, that the police searched Etchin's apartment and discovered drugs. We do not doubt that the officers' warrantless entry violated the Fourth Amendment, but the Supreme Court has explained that our analysis cannot end there. Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Probable cause to search Etchin's apartment existed when the officers entered, and so the temporary seizure of Etchin's home did not create any incremental violation of the Constitution, above and beyond the problem with the initial entry. Because the officers' search relied on a later-arriving warrant that was based on information sufficiently unrelated to the initial entry, the evidence discovered in Etchin's apartment was untainted by the officers' illegal behavior. We therefore conclude that the district court properly denied the defendants' motions to suppress and, finding no error in the sentences imposed, we affirm.

I

For a decade, Bowman distributed crack to a revolving cast of street dealers who sold his product between their stints in jail. Etchin, who had a child with Bowman, allowed Bowman to use her apartment for storage and to conduct deals. In 2004 Cole joined the team as a cook, responsible for turning Bowman's powder cocaine into crack before it was sold. By 2006 law enforcement officials had taken an interest in Bowman, and they began to interview associates of his who were now behind bars. A break in the case came on the evening of October 2, 2007, when police stopped Terrell Banks, Bowman's new recruit, as he was driving through Madison with his girlfriend. As a result of the stop, Banks and his girlfriend gave the police permission to search their home. A group of officers took Banks's girlfriend back to the apartment where she and Banks lived and discovered more than five grams of crack. Meanwhile, Banks stayed behind and Detective Steve Wegner began to question him in the back of a squad car.

Before Banks learned that police had discovered drugs at his apartment, he told Detective Wegner that he had sold the last of his supply of drugs, and he named “Chico” as the person who had supplied him drugs in the past. As the interview progressed, Banks realized he was in trouble. Perhaps because he was on supervised release at the time, Banks changed his tune and told Detective Wegner everything he knew: he named Bowman as his source and explained that the crack found in his apartment was left over from a batch he purchased from Bowman two days earlier; he admitted that he had gotten crack from Bowman four times in the preceding two months; he described how the transactions took place in Etchin's apartment at 5834 Russett Road in Madison (he did not know her name or the precise address at the time) with both Etchin and Bowman present; and he explained that Bowman stored drugs in a Crown Royal bag that was hidden with a scale either in Etchin's bathroom or in a cupboard above her kitchen stove.

Detective Wegner drove Banks to Russett Road to verify his story, and Banks pointed out Etchin's apartment. A database check on Bowman returned two warrants, one related to a child support claim filed by Etchin that listed 5834 Russett Road as the address. Detective Wegner also obtained mug shots of Bowman and Etchin, and Banks confirmed that they were his sources. Just before midnight, Detective Wegner orchestrated a phone call between Banks and Bowman in an ultimately unsuccessful attempt to coax Bowman into a meeting. As the investigation progressed, Detective Dorothy Rietzler and another Madison police officer traveled to the Russett Road address to investigate. They confirmed that Etchin lived in the apartment that Banks had identified and relayed that information to Detective Wegner, who concluded that there was enough evidence to apply for a search warrant. As Detective Wegner got to work on a warrant application, Detective Rietzler decided it was best to secure the apartment. She later reported that she heard male and female voices inside Etchin's house and, around 11:30 p.m., she decided to knock on the front door to ask for permission to enter. Etchin appeared at the door and Rietzler identified herself. When Etchin refused her entry without a warrant, Detective Rietzler and other officers hiding nearby ignored Etchin's wishes and forced their way in, telling Etchin that they intended to secure the apartment until a warrant arrived. While there was marijuana lying in plain view, the officers did not search the home. Instead, they waited while Detective Wegner prepared an affidavit recounting the investigation up to that point. Four hours after the officers had entered Etchin's apartment, a state judge signed a search warrant. At 3:30 a.m., warrant in hand, officers executed the warrant and found 150 grams of crack in a jacket, a digital scale in the cupboard above the kitchen stove, and marijuana in a number of places around Etchin's apartment.

Etchin and Bowman filed motions to suppress the evidence. The district court, adopting a magistrate judge's recommendation, denied the motions. Etchin then pleaded guilty to maintaining a drug house, 21 U.S.C. § 856(a)(2), and Bowman to possessing with the intent to distribute crack cocaine, 21 U.S.C. § 841(a)(1), both preserving their right to appeal the denial of their motions to suppress. Cole, who did not file a motion to suppress, pleaded guilty to the same crime as Etchin. The district court sentenced Bowman and Etchin to terms of 360 and 46 months, at the very bottom of the ranges recommended by the U.S. Sentencing Guidelines. Cole received the statutory maximum 240 months, a term below the range that the guidelines would otherwise have advised. The defendants appealed.

II

We turn first to Bowman and Etchin's challenge to the denial of their motions to suppress the evidence found in Etchin's apartment. Our review of the district court's legal conclusions is de novo, and we use the clear error standard for its findings of fact. United States v. Dowthard, 500 F.3d 567, 568-69 (7th Cir.2007). At the outset, we note that the government does not dispute the fact that Bowman had an expectation of privacy in Etchin's home, and because we conclude in the end that suppression is not warranted, we too treat Etchin and Bowman as though they have equivalent Fourth Amendment interests in Etchin's apartment.

A

The sanctity of the home is a central concern of the Fourth Amendment. It is therefore “a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (internal quotation marks omitted). But when there is an emergency, in so-called “exigent circumstances,” the police may enter and search a home without securing a warrant. Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). The first step in our analysis is to consider whether the initial entry of the officers into Etchin's apartment was in response to exigent circumstances. We conclude that it was not.

Magistrate Judge Crocker found that “it was reasonable and prudent for the police to enter [Etchin's] apartment” in light of “genuine concerns that Banks's cooperation already was known on the streets, and Banks had reached out to Bowman that evening.” In Judge Crocker's view, Rietzler's failed effort to get Etchin's consent to search “let the cat out of the bag” (we paraphrase slightly), which required officers to enter or else risk that evidence would be destroyed. The government has endorsed the position that exigent circumstances supported the officers' entry, relying on our decision in United States v. Collins, 510 F.3d 697 (7th Cir.2007).

In Collins, we acknowledged that police are free to approach a home and knock on a door, and we stressed that doing so may sometimes give rise to an emergency that justifies a warrantless entry into the home. 510 F.3d at 700. We realized that there is a risk of the police's “manufacturing” exigent circumstances, in the sense that their presence is what leads to the urgency of the need to enter, but this possibility, like practically everything else in the Fourth Amendment area, must be assessed case-by-case. We continued, “[I]f police hear a crime being committed within a house (and spoilation of evidence is a crime), then they can enter immediately ...; if they do not hear a crime (more...