Here are a couple of cases touching on this and related issues:
145 Fed.Appx. 528, 2005 WL 1901824 (C.A.6 (Tenn.)), 2005 Fed.App. 0678N
Briefs and Other Related Documents
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United States Court of Appeals,
Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Johnny KEYS, Defendant-Appellant.
No. 03-6041.
Aug. 9, 2005.
Background: Defendant entered conditional plea of guilty to possession of firearm by a felon and possession of firearm with obliterated serial number and moved to suppress evidence. The United States District Court for the Western District of Tennessee denied motion. Defendant appealed.
Holdings: The Court of Appeals, Hood, District Judge for the Eastern District of Michigan, sitting by designation held that:
(1) claim that fingerprints on handgun and ammunition were in danger of loss or destruction if warrantless search for gun was not conducted in house of defendant's grandmother, who had picked gun up from outside after defendant dropped it, was not valid reason for warrantless search;
(2) feared concealment of firearm was not enough to evade requirement for warrant to search grandmother's house for gun;
(3) police officer's fear that handgun would be destroyed if he did not conduct a warrantless search of house of defendant's grandmother was not a valid reason to conduct warrantless search; and
(4) police officer's fear that handgun was dangerous and would fall into wrong hands, resulting in injury to someone, was not valid reason for warrantless search.
Order reversed and conditional guilty plea and sentence vacated and remanded.
West Headnotes
[1] KeyCite Notes
349 Searches and Seizures
349I In General
349k42 Emergencies and Exigent Circumstances; Opportunity to Obtain Warrant
349k45 k. Likely Escape or Loss of Evidence. Most Cited Cases
Claim that fingerprints on handgun and ammunition were in danger of loss or destruction if warrantless search for gun was not conducted in house of defendant's grandmother, who had picked gun up from outside after defendant dropped it, was not a valid reason for warrantless search; destruction of defendant's fingerprints on weapon was unlike cases involving blood alcohol level where there might not be any other evidence of guilt, and finding gun to be loaded was not necessary to charges of possession of firearm by a felon and possession of firearm with obliterated serial number. 18 U.S.C.A. § 922(g, k).
[2] KeyCite Notes
349 Searches and Seizures
349I In General
349k42 Emergencies and Exigent Circumstances; Opportunity to Obtain Warrant
349k42.1 k. In General. Most Cited Cases
Feared concealment of firearm, which was picked up by defendant's grandmother after defendant dropped it outside her house, was not enough to evade requirement for warrant to search grandmother's house for gun; based on police officer's knocking on door of grandmother's house and communicating with her, officer determined gun was inside the home, and he and other officers on scene could have posted officers at each entry and/or exit, thereby securing premises until search warrant had been obtained and executed.
[3] KeyCite Notes
349 Searches and Seizures
349I In General
349k42 Emergencies and Exigent Circumstances; Opportunity to Obtain Warrant
349k45 k. Likely Escape or Loss of Evidence. Most Cited Cases
Police officer's fear that handgun, which was picked up by defendant's grandmother after defendant dropped it outside her house, would be destroyed if he did not conduct a warrantless search of grandmother's was not a valid reason to conduct warrantless search as it was doubtful that a firearm could be destroyed while police secured area and simply waited to obtain a valid search warrant.
[4] KeyCite Notes
349 Searches and Seizures
349I In General
349k67 Weapons; Protective Searches
349k70 k. Protective Searches. Most Cited Cases
Police officer's fear that handgun, which was picked up by defendant's grandmother after defendant dropped it outside her house, was dangerous and would fall into wrong hands, resulting in injury to someone, was not valid reason for warrantless search of grandmother's house.
*529 On Appeal from the United States District Court for the Western District of Tennessee.
Stephen P. Hall, Asst. U.S. Attorney, U.S. Attorney's Office, Memphis, TN, for Plaintiff-Appellee.
Stephen B. Shankman, Fed. Public Defender, April R. Goode, Asst. F.P. Defender, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, TN, for Defendant-Appellant.
Before: COLE and CLAY, Circuit Judges; HOOD, District Judge. FN*
FN* The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting by designation.
HOOD, District Judge.
**1 Defendant Johnny Keys appeals from the November 26, 2002 order of the United States District Court for the Western District of Kentucky, denying Keys' motion to suppress evidence. Because we hold that the district judge clearly erred in denying the motion to suppress, we REVERSE the district court's order, VACATE Keys' conditional*530 guilty plea and sentence, and REMAND the case for further proceedings consistent with this opinion.
I. BACKGROUND
A. Proceedings in the District Court
On January 29, 2002, a federal grand jury from the Western District of Tennessee handed down an indictment charging Keys with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g), and possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k).
On April 24, 2002, Keys filed a motion to suppress evidence. A magistrate judge conducted an evidentiary hearing in connection with Keys' motion, and recommended that the district judge grant the motion to suppress. After timely filed objections by the United States, the district judge conducted an evidentiary hearing of her own. The district court denied Keys' motion on November 26, 2002, and Keys entered a conditional guilty plea.
On May 21, 2003, the district court conducted a sentencing hearing during which the judge suspended the imposition of sentence until Keys appeared for the conclusion of the sentencing hearing, scheduled for May 23, 2003. Keys did not appear as scheduled, and the district court issued a warrant for his arrest. Nearly two months later, on July 18, 2003, Keys was arrested. Keys was again brought before the district judge, who sentenced Keys to 105 months imprisonment to be followed by three years of supervised release.
B. Substantive facts
On September 13, 2001, Memphis police officer Todd Ledgerwood observed a green Chevrolet Malibu driving slowly in a residential neighborhood. After seeing the car come to a stop, Ledgerwood observed Keys exit the vehicle and attempt to enter a duplex by first trying to open the door, then, upon finding the door locked, banging on the door and shouting for someone to let him in. Ledgerwood left his marked squad car and called out to Keys. Keys initially walked towards Ledgerwood, but hesitated. Ledgerwood heard what he described as a clattering noise, sounding like something metallic striking the concrete beneath Keys' feet. Looking in that direction, Ledgerwood saw a silver gun near Keys. Keys then took flight, with Ledgerwood giving chase, leaving the gun where it lay. Keys was apprehended after running nearly three blocks away from the door of the duplex. Both Ledgerwood and Keys then returned to the scene where the gun was left behind.
Upon returning, the gun could not be found where it had been originally dropped. A witness indicated that someone called “grandma” had come out of the duplex Keys had sought entry to and retrieved the weapon. Ledgerwood proceeded to knock on the door, which was answered by an elderly man. Ledgerwood asked for “grandma,” and a female later identified as Keys' grandmother, Mollie Keys, then came to the door. Ledgerwood asked if she had in fact taken the gun from outside. Ledgerwood claimed she indicated the gun was in the freezer, whereupon the officer retrieved the weapon and promptly left the duplex.
**2 When questioned as to why he entered the home, Ledgerwood gave the following testimony:
One, because I had a belief that the evidence had been removed from my crime scene and, two I was really-I was nervous about where that gun would end up. I mean I didn't want any kids getting shot or possibly that weapon falling into the wrong hands. You know, *531 it's evidence and-it's not just evidence, it's very dangerous evidence.
Upon inspection, Ledgerwood discovered the gun was in fact loaded. He also discovered that the gun's serial number had been removed. A subsequent background check of Keys' record showed that he was previously convicted of a felony. Ledgerwood estimated he had been inside the home for around three minutes. On cross-examination, Ledgerwood told the court “grandma” told him the gun was “[i]n the kitchen, it's in the kitchen.” The officer indicated he heard “grandma” make this statement as clearly as he could hear defense counsel's voice in court. Following Ledgerwood's testimony, defense counsel called Mollie Keys as a witness. Defense counsel informed the court and government counsel that Mollie Keys' larynx was removed in 1979 due to throat cancer, a fact previously unknown by the government. The court permitted Mollie Keys to write down her responses to counsels' questioning. Through her writing, Mollie Keys testified to the following facts: Johnny Keys stays with her in her home, he has clothes in the home, and he possesses keys to the door. Mollie Keys also testified that Ledgerwood told her to give up the weapon or she would go to jail. She stated the officer entered the home without her permission and retrieved the gun himself. Mollie Keys' testimony does not detail how Ledgerwood knew where to look for the weapon, as she did not allege that he spent more than a few minutes in the home. Mollie Keys did admit she had indicated her possession of the weapon prior to Ledgerwood's entry into the duplex. However, she denied having gone outside to retrieve it. Instead, Mollie Keys stated she normally kept the loaded firearm in her freezer.
The district judge denied the motion to suppress, finding that although the evidence presented by the government did not support the consent of Mollie Keys to Ledgerwood's warrantless entry of the duplex, Ledgerwood's actions were nonetheless constitutional due to the presence of exigent circumstances. The district court specifically held Mollie Keys was unable to speak due to her throat condition, but that “she communicates fairly easily by gesture and mouthing words.” The court below also recognized the disparity this fact created between the testimony of Ledgerwood and the testimony of Mollie Keys. Resolving the discrepancies in their testimony was not necessary in the district court's view, as “[u]nder either version of the events, Ms. Keys did not consent to the search.”
Nonetheless, the district court denied the suppression motion based on the finding that Ledgerwood reasonably believed loss or destruction of evidence was imminent. The district court noted Ledgerwood credibly testified that he entered the residence “because he was concerned about the removal of evidence and its dangerous nature.” The court went on to deny the motion to suppress based on the removal of evidence claim. The court did not specifically address the asserted dangerous nature justification for making a warrantless entry. In its order, the court wrote as follows:
**3 The circumstances indicated a probability of deliberate removal of the weapon so that officers would not have access to it and thus represented a likely effort to assist Mr. Keys. Ledgerwood also had reason to believe that at least ‘grandma’ was in the house····
Before he knocked, Ledgerwood had a reasonable belief that loss or destruction of evidence was imminent. Here, the evidence subject to loss or destruction in the event of delay included possible fingerprints and ammunition as well as the *532 gun. Moreover, contrary to the magistrate judge's suggestion, the only possible avenue for destroying evidence is not flushing it down a toilet. Heat, for example, could destroy a weapon's usefulness as evidence. Moreover, evidence can be concealed on occasion so that officers are unable to find it.
Seizure of the weapon in this case was justified by exigent circumstances. Moreover, the intrusion into the home was limited in scope to the minimum necessary to prevent loss or destruction. As the government points out, securing the residence to obtain a search warrant and executing the warrant would have been far more intrusive that [sic] what in fact occurred.
Shortly after the denial of the motion to suppress, Keys pled guilty to Count 1 of the indictment, felon in possession of a firearm, preserving his right to challenge the suppression ruling on appeal.
II. DISCUSSION
A. Standard of Review
In reviewing the denial of a suppression motion, the district court's factual findings are reviewed for clear error. See, e.g., United States v. Newton, 389 F.3d 631, 635 (6th Cir.2004) (citing United States v. Helton, 314 F.3d 812, 820 (6th Cir.2003)). Conclusions of law are reviewed de novo. Id.
B. Analysis
The Fourth Amendment of the United States Constitution prohibits government actors from entering a home without a warrant supported by probable cause, subject to a few narrow exceptions. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed. 639 (1980). As the Supreme Court stated, “[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. at 586. In Welsh v. Wisconsin, the Court emphasized that “exceptions to the warrant requirement are ‘few in number and carefully delineated.’ ” 466 U.S. 740, 749, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)).
One such exception is when exigent circumstances are found to exist. As exigency is defined as “ ‘a situation where the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.’ ” United States v. Morgan, 743 F.2d 1158, 1162 (6th Cir.1984) (quoting United States v. Flickinger, 573 F.2d 1349, 1355 (9th Cir.1978)); accord United States v. Curzi, 867 F.2d 36, 41 (1st Cir.1989) (defining an exigency as when “there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant”). There are two requirements for a finding of exigent circumstances: (1) a reasonable belief that someone is inside the dwelling; and (2) a reasonable belief that the loss or destruction of evidence is imminent. United States v. Radka, 904 F.2d 357 (6th Cir.1990); see also, United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir.1988) (finding exigent circumstances in warrantless entry when officers reasonably believed drugs were in building, someone was inside, and occupants may soon become aware that police are after them). In order for exigent circumstances to justify a warrantless search, the situation must be one where real immediate and serious consequences will certainly occur if police officers postpone their action in order to obtain a search warrant. United States v. Williams, 354 F.3d 497 (6th Cir.2003). Exigent circumstances are to be narrowly construed when they are sought to be applied to residential premises. *533 United States v. Nelson, 459 F.2d 884 (6th Cir.1972). Since warrantless home entries are presumptively unreasonable, Payton, 445 U.S. at 586, “the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness.” Welsh, 466 U.S. at 750; accord Morgan, 743 F.2d at 1162.
**4 This Circuit recently examined the exigency exception to the warrant requirement. See United States v. Chambers, 395 F.3d 563 (6th Cir.2005). In affirming the granting of a motion to suppress evidence, Chambers held a warrantless entry into a home was not justified by exigent circumstances. The court considered a warrantless search of a trailer home and garage in a remote area of Tennessee, which yielded evidence of a methamphetamine laboratory. Id. at 565.
The court detailed the basic requirement for a warrantless search based on exigent circumstances to be held valid. “In order for a warrantless search to pass muster, probable cause must exist, but ‘no amount of probable cause can justify a warrantless seizure,’ because, in addition, the cause of the search must be based on an ‘emergency’ and hence, ‘inadvertent’ or unanticipated.” Id. (internal citations omitted). Chambers went on to note that “[w]hen there is neither a warrant nor consent, courts will only permit a search or seizure to stand under extraordinary circumstances.” Id. The Chambers court held that in the situation before it, any exigent circumstance was the by-product of law enforcement officers' own conduct. Id. at 566. Although Chambers is not directly on point here, it does provide important guidance for evaluating the instant matter.
It should come as no surprise that most of the cases where a finding of exigent circumstances has been upheld involved illegal drugs as the evidence in question. The fear is that once suspects in drug cases become aware of a police presence, they will immediately set about destroying the most relevant evidence: the drugs. See, e.g., United States v. Smith, 386 F.3d 753, 760 (6th Cir.2004). A common, and very easily accomplished, method of destroying drug evidence is by flushing it down the toilet. Smith held there was “insufficient evidence in th[e] record to support a reasonable belief that the destruction of the large amount of cocaine involved in this case was imminent.” Id. In reaching its conclusion, the Smith court expounded on the meaning of a “reasonable belief” in the context of finding exigent circumstances:
The mere possibility or suspicion that a party is likely to dispose of evidence when faced with the execution of a search warrant is not sufficient to create an exigency. Nor is the generalized and often recognized fear that destruction of evidence is an inherent possibility during the execution of a warrant adequate grounds to find exigent circumstances, although this is more likely to be accepted when the drugs are in easily disposable quantities.
Id. (citing United States v. Bates, 84 F.3d 790, 796 (6th Cir.1996)).
[1] There are three types of evidence presently at issue: the fingerprints on the gun, ammunition in the gun, and the gun itself. The district court found the fingerprints and ammunition were clearly in danger of loss or destruction, while the actual weapon could have been concealed or intentionally damaged. With respect to fingerprints, the nature of such evidence makes it very easily lost or destroyed.FN1 *534 However, Keys' fingerprints on the weapon are unlike cases involving blood alcohol levels, cited in support of Ledgerwood's search, where there may not be any other evidence of the defendant's guilt. The same is true of the ammunition as well. Indeed, possession of a firearm was the charge; finding the gun to be loaded is not a necessary element of the offense. Here the central piece of evidence is the gun itself, and the issue is the proper manner in which a law enforcement officer should go about obtaining such evidence.
FN1. It should also be noted that fingerprint evidence on firearms is generally not available. “Certain items, such as firearms, are not conducive to locating fingerprint evidence, and therefore, although firearms evidence is examined for prints, it is not unusual that identifiable prints are seldom found on firearms.” 1 Adrienne C. Lynch, Criminalistics, § 6.3.3(b) (MCLE, Inc.2004) (reprinted with permission from Massachusetts Expert Witnesses (Peter M. Lauriat, et al., eds., MCLE, Inc.2002)) (citing Commonwealth v. Evans, 439 Mass. 184, 202, 786 N.E.2d 375 (2003)).
**5 [2] Feared concealment of the firearm is not enough to evade the warrant requirement. See, e.g., United States v. Bates, 84 F.3d 790, 795 (6th Cir.1996) (“Evidence that firearms are within a residence, by itself, is not sufficient to create an exigency.”); United States v. Dawkins, 17 F.3d 399, 406 (D.C.Cir.1994) (“[W]e have never found exigency solely on the basis that police have information that firearms are located in a private home.”) (emphasis in original). In this case, the extent of possible concealment was limited to the Keys household. Based on his knocking on the door and communicating with Mollie Keys, Ledgerwood determined the gun was in fact inside the home. Ledgerwood and his fellow officers on the scene could have posted officers at each entry and/or exit, thereby securing the premises until a search warrant had been obtained and executed. See, e.g., Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); United States v. Taylor, 248 F.3d 506, 513 (6th Cir.2001).
Nor can making a hypothetically less intrusive warrantless entry be a valid basis for evading the Fourth Amendment's warrant requirement. Such a belief, even in good faith, would enable countless warrantless searches and seizures based on law enforcement's allegation that it saved the defendant or a third-party further intrusion or hassle.
[3] Only the fear of destruction of evidence remains as a proper rationale for allowing a warrantless entry. As an example, the district court noted the possibility of using heat to destroy the gun in the Keys home. While heat may indeed affect the usefulness of the weapon as evidence, by obliterating the serial number for instance,FN2 it is doubtful that a firearm could be destroyed while police secured the area and simply waited to obtain a valid search warrant before entering the home. At oral argument, the Government admitted it was unlikely that the gun could have been destroyed in the time it would have taken Ledgerwood to get a valid search warrant. We agree with this assessment, and hold that a fear of destruction did not provide an exigent circumstance in this circumstance.
FN2. As it was later discovered, the gun in question here already had an obliterated serial number.
[4] A risk of danger may also provide an exigent circumstance upon which to base a warrantless entry into a residence. See, e.g., Williams, 354 F.3d at 497. Williams held that a risk of danger exigency exception applies only in situations involving a need to protect or preserve life or to avoid serious injury to police officers or other individuals. Id. Cases approving a warrantless entry to seize a gun may involve exigent circumstances. See, e.g., *535 United States v. Johnson, 106 Fed.Appx. 363 (6th Cir.2004) (unpublished). In Johnson, the court held exigent circumstances justified police officers' warrantless entry into a residence to seize a shotgun. Id. There the officers were responding to a report of a man, the defendant, firing two shots into the air, reloading the gun, then running inside the house. Id. The house into which the defendant fled was located in a residential neighborhood where children resided. Id. On this basis, Johnson held there was ample justification for fearing for the safety of the officers and individuals both inside and outside of the home. Id.
**6 This case lacks the risk of danger elements found in Johnson. Although Ledgerwood indicated he was “nervous about where that gun would end up,” the district court did not base its decision on a risk of danger exigency. Other than Ledgerwood's assertion, there is not enough in the record to support denial of Keys' motion to suppress on a risk of danger basis.
III. CONCLUSION
For the reasons set forth above, we REVERSE the district court's order, VACATE Keys' conditional guilty plea and sentence, and REMAND the case for further proceedings consistent with this opinion.
Copr. (C) West 2007 No Claim to Orig. U.S. Govt. Works C.A.6 (Tenn.),2005.
U.S. v. Keys
145 Fed.Appx. 528, 2005 WL 1901824 (C.A.6 (Tenn.)), 2005 Fed.App. 0678N
Briefs and Other Related Documents (Back to top)
• 03-6041 (Docket) (Aug. 18, 2003)
END OF DOCUMENT
____________________________________________________
United States Court of Appeals,
Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellant,
v.
Christopher Todd THOMAS, Defendant-Appellee.
No. 04-6148.
Argued: Sept. 23, 2005.
Decided and Filed: Dec. 1, 2005.
Rehearing and Rehearing En Banc Denied Feb. 28, 2006.
Background: Defendant charged with drug offenses moved to suppress evidence seized by police from his person and his residence. The United States District Court for the Western District of Tennessee, James D. Todd, Chief Judge, granted motion. The government appealed.
Holding: The Court of Appeals, Sutton, Circuit Judge, held that police officers' conduct outside the entry to defendant's home did not rise to the level of an impermissible constructive entry into the home.
Reversed and remanded.
West Headnotes
[1] KeyCite Notes
349 Searches and Seizures
349I In General
349k25 Persons, Places and Things Protected
349k25.1 k. In General. Most Cited Cases
Absent exigent circumstances, the threshold to a suspect's home may not reasonably be crossed without a warrant, under the Fourth Amendment. U.S.C.A. Const.Amend. 4.
[2] KeyCite Notes
110 Criminal Law
110XXIV Review
110XXIV(L) Scope of Review in General
110k1139 k. Additional Proofs and Trial De Novo. Most Cited Cases
The district court's determination that a constructive entry into a suspect's home occurred for Fourth Amendment purposes receives de novo review where the facts are not disputed. U.S.C.A. Const.Amend. 4.
[3] KeyCite Notes
110 Criminal Law
110XXVII Prevention of Crime
110k1222 Prevention and Investigation of Crime
110k1224 Intervention of Public Officers
110k1224(1) k. In General. Most Cited Cases
Consensual encounters between a police officer and a citizen do not lose their propriety under the Fourth Amendment merely because they take place at the entrance of a citizen's home. U.S.C.A. Const.Amend. 4.
[4] KeyCite Notes
35 Arrest
35II On Criminal Charges
35k68 Mode of Making Arrest
35k68(6) Intrusion or Entry
35k68(8) k. Force, Ruse, or Deception. Most Cited Cases
110 Criminal Law KeyCite Notes
110XXVII Prevention of Crime
110k1222 Prevention and Investigation of Crime
110k1224 Intervention of Public Officers
110k1224(1) k. In General. Most Cited Cases
The difference between a permissible consensual encounter between police and a citizen at the entrance to the citizen's home and an impermissible constructive entry turns on the show of force exhibited by the police. U.S.C.A. Const.Amend. 4.
[5] KeyCite Notes
35 Arrest
35II On Criminal Charges
35k68 Mode of Making Arrest
35k68(6) Intrusion or Entry
35k68(8) k. Force, Ruse, or Deception. Most Cited Cases
Police officers' conduct outside the entry to defendant's home did not rise to the level of an impermissible “constructive entry” into the home, as would violate the Fourth Amendment, although five officers and four police vehicles were present, where two officers knocked on the rear door, which was customarily used as the entrance to the home, and when defendant came to the door, he was told that investigators wanted to talk to him and asked him to come out of the residence, which he did, and there were no drawn weapons, raised voices, or coercive demands on the part of the police. U.S.C.A. Const.Amend. 4.
[6] KeyCite Notes
35 Arrest
35II On Criminal Charges
35k68 Mode of Making Arrest
35k68(6) Intrusion or Entry
35k68(7) k. In General. Most Cited Cases
The state of mind of arresting police officers does not establish whether a seizure in general or a constructive entry into defendant's home in particular has occurred. U.S.C.A. Const.Amend. 4.
*275 ARGUED: Victor L. Ivy, Assistant United States Attorney, Jackson, Tennessee, for Appellant. C. Mark Donahoe, Hardee, Martin, Dauster & Donahoe, Jackson, Tennessee, for Appellee. ON BRIEF: Victor L. Ivy, Assistant United States Attorney, Jackson, Tennessee, for Appellant. C. Mark Donahoe, Hardee, Martin, Dauster & Donahoe, Jackson, Tennessee, for Appellee.
Before: SILER and SUTTON, Circuit Judges; SHARP, District Judge. FN*
FN* The Honorable Allen Sharp, United States District Judge for the Northern District of Indiana, sitting by designation.
SUTTON, Circuit Judge.
The United States challenges a suppression-of-evidence ruling, arguing that the district court erred in concluding that police officers constructively entered a home without a warrant and without being able to satisfy any of the narrow exceptions to the warrant requirement. Because the police officers did not enter the house and because the defendant, Christopher Thomas, did not exit the house as a result of physical force or any other conspicuous show of authority by the police, cf. United States v. Morgan, 743 F.2d 1158 (6th Cir.1984) and United States v. Saari, 272 F.3d 804 (6th Cir.2001), we reverse.
I.
Early in the morning of October 21, 2003, Tim Higgins, the manager of the Oakland Gin Company in Lauderdale County, Alabama, noticed a pickup truck near the company's tank of anhydrous ammonia. His suspicion aroused, he followed the truck to a restaurant and confronted the driver, Christopher Thomas, who denied*276 being near the tank. Higgins recorded the license number of the truck and reported the incident to local police.
Soon after receiving the report, Deputy Joe Hamilton spotted Thomas driving his truck and stopped him. When asked what he had been doing at the gin company, Thomas explained that he had been looking for a place to eat. Hamilton let him go but then proceeded to the gin company, where he observed that the fence around the tank had been cut, a wrench had been left on the ground and a hose had been tapped into the tank. Based on these observations, the police suspected Thomas of attempting to steal anhydrous ammonia, a chemical used in the production of methamphetamine.
At roughly 10:00 a.m. that morning, several Alabama-based and Tennessee-based police officers drove to the Tennessee home of Ginger Hopper, where Thomas had been living and which is near Lauderdale County, Alabama. There, they found Thomas's truck parked behind the house; one of the doors to the truck was open, and a Thompson .357 handgun lay on the front seat. The officers also noticed a silver canister in the back of the truck, similar to canisters that one of the officers recognized as having been used in other thefts of anhydrous ammonia.
Two officers knocked on the back door of Hopper's home, which served as the primary entrance to the home according to local police. Two officers went to the front door. Four patrol cars in total were parked at the house, and apparently one of the cars contained a fifth officer. When Thomas came to the back door, the officers “told [him] that the Alabama investigators wanted to talk to him and asked him to come out of the residence, which he did.” D. Ct. Order at 5; see also Thomas Br. at 6 (“The Defendant was asked to come outside the residence.”). After Thomas exited the house, he refused to talk and requested an attorney. At this point, the officers arrested him.
After the arrest, the police searched Thomas and discovered incriminating evidence, including methamphetamine and a handwritten recipe for making more. They also searched the truck and discovered two firearms as well as the scent of anhydrous ammonia.
The district court suppressed the evidence, holding that the arrest violated the Fourth Amendment. Under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the court noted, police may not enter a home to make an arrest without a warrant in the absence of exigent circumstances. Id. at 590, 100 S.Ct. 1371. And under United States v. Morgan, 743 F.2d 1158 (6th Cir.1984), the court added, a “constructive entry” into a home in violation of Payton occurs whenever the police use “coercive [ ] conduct” to force a defendant outside of the home. Id. at 1166. Concluding that the police conduct in this instance was coercive, the district court held that a constructive entry into Hopper's home had taken place, that the police neither possessed a warrant nor established exigent circumstances for the entry and that the arrest accordingly was unlawful.
II.
[1] [2] “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton, 445 U.S. at 590, 100 S.Ct. 1371. The question here is when we will deem officers to have crossed that “threshold” in law when they have not done so in fact. As there are no material disputes about what happened during the encounter in this case, the district court's *277 determination that a constructive entry occurred receives de novo review. See United States v. Buchanon, 72 F.3d 1217, 1222-23 (6th Cir.1995); see also United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
On one side of the ledger, the law has long permitted officers to engage in consensual encounters with suspects without violating the Fourth Amendment. See, e.g., Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir.2005) ( “A purely consensual encounter between a police officer and a citizen does not implicate the Fourth Amendment.”); United States v. Hudson, 405 F.3d 425, 439 n. 10 (6th Cir.2005) (“The police were of course free to approach Hudson and talk with him so long as they did not do so in a manner that would lead a reasonable person to feel that he was not free to leave.”); United States v. Waldon, 206 F.3d 597, 602 (6th Cir.2000) (“[T]he consensual encounter may be initiated without any objective level of suspicion.”).
[3] Consensual encounters do not lose their propriety, moreover, merely because they take place at the entrance of a citizen's home. A number of courts, including this one, have recognized “knock and talk” consensual encounters as a legitimate investigative technique at the home of a suspect or an individual with information about an investigation. See, e.g., United States v. Chambers, 395 F.3d 563, 568 n. 2 (6th Cir.2005) (“Courts generally have upheld [the knock and talk] investigative procedure as a legitimate effort to obtain a suspect's consent to search.”); Ewolski v. City of Brunswick, 287 F.3d 492, 504-05 (6th Cir.2002) (concluding that it was reasonable to approach a suspect's home to attempt to learn more through consensual questioning); Nash v. United States, 117 Fed.Appx. 992, 2004 WL 2912796, at *1 (6th Cir. Dec.16, 2004) (noting that this court has “explicitly upheld the legitimacy of doorstep investigatory interviews”); United States v. Jones, 239 F.3d 716, 720 (5th Cir.2001) (“Federal courts have recognized the ‘knock and talk’ strategy as a reasonable investigative tool when officers seek to gain an occupant's consent to search or when officers reasonably suspect criminal activity.”); United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir.2000) (holding that “no suspicion needed to be shown in order to justify the ‘knock and talk’ ”); United States v. Jerez, 108 F.3d 684, 691-92 (7th Cir.1997) (recognizing that a knock and talk is ordinarily consensual unless coercive circumstances exist); United States v. Titemore, 335 F.Supp.2d 502, 505 (D.Vt.2004) (“Under the rule permitting knock and talk visits, no Fourth Amendment search occurs when police officers who enter private property restrict their movements to those areas generally made accessible to visitors.”) (quotation omitted).
On the other side of the ledger, we have held that a consensual encounter at the doorstep may evolve into a “constructive entry” when the police, while not entering the house, deploy overbearing tactics that essentially force the individual out of the home. In United States v. Morgan, 743 F.2d 1158 (6th Cir.1984), we held that a “constructive entry” occurred when a suspect emerged from a house “in response to coercive police conduct.” Id. at 1166. And in United States v. Saari, 272 F.3d 804 (6th Cir.2001), we described coercive police conduct as “such a show of authority that [the] Defendant reasonably believed he had no choice but to comply.” Id. at 809.
[4] The difference between the two-between a permissible consensual encounter and an impermissible constructive entry-turns on the show of force exhibited by the police. In Nash, for example, we *278 described a typical consensual encounter: “No testimony ··· indicate[d] drawn weapons, raised voices, or coercive demands on the part of the police ···· Rather, Nash opened the door willingly, and when requested, stepped out onto the porch.” 2004 WL 2912796, at *1, 117 Fed.Appx. 992. Morgan, by contrast, involved a team of ten officers who surrounded the house, blocked the suspect's car, “flooded the house with spotlights and summoned Morgan from his mother's home with the blaring call of a bullhorn.” 743 F.2d at 1161. And Saari involved four officers who “knocked forcefully on the door and announced that they were the police.” 272 F.3d at 808. One officer “had a 12-gauge, pump-action shotgun drawn and in a ‘low ready’ position, that is, pointed at approximately forty-five degrees toward the ground in front of the door.” Id. at 806. The others had their service weapons drawn, and, “[u]pon opening the door, Defendant was instructed to come outside, which he did.” Id. at 808; see also Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir.1997) (holding that “[n]o reasonable person would have believed that he was free to remain in the house” when the police surrounded the house, pointed machine guns at the windows and ordered the occupants out); United States v. Maez, 872 F.2d 1444, 1450 (10th Cir.1989) (holding that when a SWAT team surrounded a trailer with rifles pointed at the home and addressed the occupants over loudspeakers “a reasonable person would have believed he had to come out of the home”); United States v. Edmondson, 791 F.2d 1512, 1514 (11th Cir.1986) (holding that a suspect's consent to entry was coerced when FBI officers surrounded the front of the defendant's apartment, with weapons drawn, and yelled, “FBI. Open the door.”); United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir.1985) (holding that an arrest occurred when “the police had completely surrounded appellee's trailer with their weapons drawn and ordered him through a bullhorn to leave the trailer and drop to his knees”); see also United States v. Johnson, 626 F.2d 753, 757 (9th Cir.1980) (holding that Payton prohibits “subterfuge in getting the suspect to open the door” because such an exposure is “nonconsensual”).
[5] Measured by these decisions, the officers' conduct in this case did not rise to the level of a constructive entry. Two officers “knocked on the rear door ···· When Defendant came to the door, Officer Cunningham told Defendant that the Alabama investigators wanted to talk to him and asked him to come out of the residence, which he did.” D. Ct. Order at 5. As in Nash, “[n]o testimony ··· indicate[d] drawn weapons, raised voices, or coercive demands on the part of the police.” 2004 WL 2912796, at *1, 117 Fed.Appx. 992. Thomas responded to a simple knock and request, not an order to emerge or the threat of firearms. And he has given us no basis for concluding that a reasonable person, confronted with a knock on the door by police officers, would believe without more that he was either under arrest or otherwise compelled to leave the house. On this record, no “constructive entry” occurred.
This determination not only respects the line between consensual and coercive encounters drawn by our precedents but also respects the line drawn in this area by other circuit courts. In United States v. Vaneaton, 49 F.3d 1423 (9th Cir.1995), for example, the suspect voluntarily exposed himself to the police by opening his hotel door in response to a knock on the door by police. The court noted that “[n]o threats or force were used by the police to get him to open the door, and his actions were not taken in response to a claim of lawful authority.” Id. at 1427. Thus, the court *279 held, the exposure to police was voluntary, the subsequent arrest lawful. Id.; see also Saari, 272 F.3d at 809 n. 4 (noting, in distinguishing Vaneaton, that “the uniformed officers had their guns in their holsters and said nothing upon knocking ···· The defendant opened the window curtains, saw the officers and opened the door. There was no testimony in Vaneaton indicating that the defendant was faced with a show of force making it clear that he had no choice but to present himself for arrest”). See also Cormier, 220 F.3d at 1109 (holding that no Fourth Amendment violation occurred when an officer “knocked on the door for only a short period spanning seconds” and “never announced that she was a police officer while knocking nor did she ever compel Cormier to open the door under the badge of authority. Because there was no police demand to open the door ··· there is no evidence to indicate that the encounter was anything other than consensual”) (citations omitted); Duncan v. Storie, 869 F.2d 1100, 1102 (8th Cir.1989) (suggesting that no Fourth Amendment violation would occur when “an individual voluntarily left the confines of his home ··· [and] the arrest was made in a public place”); United States v. Mason, 661 F.2d 45, 47 (5th Cir.1981) (holding that no Fourth Amendment violation occurred when defendant came to doorway as agents approached the house and was then placed under arrest); United States v. Botero, 589 F.2d 430, 432 (9th Cir.1978) (holding that no Fourth Amendment violation occurred when “in response to (the agent's) knock, the door was opened by defendant Botero [and he] was placed under arrest at that time”); Fredericks v. Wright, 46 F.3d 1141, 1995 WL 23651, at *2 (9th Cir. Jan.20, 1995) (holding that no Fourth Amendment violation occurred when “government officers [ ] knock[ed] on an individual's door and [ ] arrest[ed] the individual when the door [was] opened, even if the individual [was] still standing in the doorway”); United States v. Von Marschner, 849 F.2d 1477, 1988 WL 65553, at *2 (9th Cir. June 16, 1988) (holding that no Fourth Amendment violation occurred when seven agents “knocked on Von Marschner's door, identified themselves, and invited Von Marschner to step outside”); see also 3 Wayne LaFave, Search and Seizure § 6.1(e) (4th ed. 2004) (“It has been deemed unobjectionable that the defendant came outside at the request of police who did not reveal their intention to arrest ···· [H]owever, the warrantless arrest will be illegal if the defendant's presence outside was acquired by coercion.”).
To the extent other circuits have drawn a line different from the one we have drawn, it is a line that is less protective of individual liberties and one that turns solely on whether the officers in fact crossed the physical threshold of the entrance to the home. See Knight v. Jacobson, 300 F.3d 1272, 1277 (11th Cir.2002) ( “ Payton keeps the officer's body outside the threshold, not his voice. It does not prevent a law enforcement officer from telling a suspect to step outside his home and then arresting him without a warrant.” ); United States v. Berkowitz, 927 F.2d 1376, 1386 (7th Cir.1991) ( Payton prohibits only a warrantless entry into the home, “not a policeman's use of his voice to convey a message of arrest from outside the home” ); United States v. Carrion, 809 F.2d 1120, 1128 (5th Cir.1987) (holding that Payton was not violated when police, without crossing the threshold, pointed guns at and arrested the defendant when he was still within the hotel room).
Thomas offers three arguments in attempting to counter the conclusion that the officers did not violate his Fourth Amendment rights. He first claims that the opinion by Judge Cabranes in *280 United States v. Karagozian, 715 F.Supp. 1160 (D.Conn.1989), leads to a different outcome. True, that case, like this one, involved a visit by police to the rear deck of a house and, true, the court held that the police violated the Fourth Amendment in the course of the encounter. But in today's case the rear deck was adjacent to the driveway and served as the primary entrance to Hopper's home. There, by contrast, the rear deck “was not a place, such as a driveway, with ready access to visitors.” Id. at 1164. In Karagozian, the police thus violated the Fourth Amendment before they knocked on the suspect's door by breaching “the reasonable expectation of privacy that Karagozian had regarding his rear deck.” Id. On that basis, the court concluded that “the doctrine of Payton applies to an arrest made on the rear deck of the Karagozian home.” Id. Here, however, Thomas does not argue that he had a reasonable expectation of privacy in the back of Hopper's house-an argument that at all events could not be squared with the district court's finding that the back door “was customarily used as the entrance to the house.” D. Ct. Order at 12.
[6] Thomas next contends that the testimony of the officers, who “considered Defendant to be under arrest as soon as he came to the door,” D. Ct. Order at 16, establishes that the encounter was coercive. But by now it is well established that the state of mind of arresting police officers does not establish whether a seizure in general or a constructive entry in particular has occurred. See Mendenhall, 446 U.S. at 554 n. 6, 100 S.Ct. 1870 (“[T]he subjective intention [of law enforcement] to detain ··· is irrelevant except insofar as that may have been conveyed to the respondent.”); United States v. Waldon, 206 F.3d 597, 603 (6th Cir.2000) (“Whether an encounter between a police officer and a citizen is consensual depends on the officer's objective behavior, not on any subjective suspicion of criminal activity.”); see generally Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”).
Thomas lastly argues that the number of officers involved in his ultimate arrest-five-establishes that the encounter was coercive. But the number of officers involved in this investigation was neither inherently coercive nor unjustified. Keep in mind that two different jurisdictions had an interest in the investigation-officers from Alabama (where the suspected crime had occurred) and officers from Tennessee (where the suspect was staying). Sending two officers to the primary entrance in the rear of the house was hardly unreasonable in the course of a drug-manufacturing investigation, and having other officers on hand in the event a conflict arose made abundant sense as well. Why four police vehicles were needed for five officers (particularly given today's gas prices) was never explained. But Thomas has never argued that he saw all of these vehicles before leaving the house or that the number of vehicles at the house somehow converted the incident into a coercive encounter. In the final analysis, officers may take reasonable security precautions in doing their jobs, and bringing several officers to investigate a potential methamphetamine lab would seem to be doing just that. See Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.”); United States v. Layne, 324 F.3d 464, 470 (6th Cir.2003) (noting that a methamphetamine lab is an inherently dangerous place); United States v. Bohannon, 225 F.3d 615, 617 (6th Cir.2000) (“The possible danger presented by an individual approaching*281 and entering a structure housing a drug operation is obvious.”) (quotation omitted).
III.
For these reasons, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
Copr. (C) West 2007 No Claim to Orig. U.S. Govt. Works C.A.6 (Tenn.),2005.
U.S. v. Thomas
430 F.3d 274, 2005 Fed.App. 0460P
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