Exigent Entry Following Potential Burglary Yields Marijuana

Montanez v. Carvajal, (11th Cir. 2018)

A property crimes investigator was driving an unmarked car through a neighborhood that had recently experienced an increase in daytime burglaries. The investigator saw William Rivera walking around a house, talking on a phone and looking nervous. Just then, the investigator saw Troy Copeland “huddling” nearby, appearing to be a lookout while Rivera broke into the house. The investigator called for backup, describing the unfolding situation as a “burglary in progress.”

When another officer arrived, the two officers detained and searched Copeland and Rivera. Rivera had two kitchen knives. The house’s back door had what appeared to be fresh pry marks that looked like a knife had been used on the door handle in a burglary. Copeland and Rivera had identification indicating they did not live at the house.

The officers handcuffed Copeland and Rivera. The investigator opened the door, stepped across the threshold, and called out, “sheriff’s office, come out if anybody’s in there, sheriff’s office.” No one responded. The officers waited until several other officers arrived, then entered the house to check for other burglary suspects. During their protective sweep, they saw marijuana and paraphernalia.

The investigator called for a supervisor. They entered the house briefly, quickly looking at the contraband. They then called for narcotics investigators, who entered briefly to view the contraband. The homeowner then arrived, and one of the investigators escorted her into the house. Finally, an investigator again briefly entered to see the contraband before preparing an affidavit for a search warrant.

A court issued a search warrant. Officers entered and seized the contraband and a significant amount of cash. Unable to determine which of several residents owned the drugs and unable to tie the cash to any crime, investigators returned the money. No charges were filed.

Michael Montanez, one of the homeowners, sued the officers for illegal entry following the suspected burglary. The officers argued their initial entry was justified by exigent circumstances, asserting their protective sweep went no further than places where a suspect could hide and the subsequent entries were limited to the areas where the homeowners’ expectation of privacy had already been extinguished by the exigent circumstances entry.

The primary question for the court was whether the investigator’s initial entry just across the threshold and the officers’ ensuing four-minute protective sweep of the house violated the Fourth Amendment. The court held “that if police have probable cause to suspect a residential burglary—whether they believe the crime is currently afoot or has recently concluded—they may, without further justification, conduct a brief warrantless search of the home to look for suspects and potential victims.”

Montanez claimed there was no exigency because the officers had already captured Copeland and Rivera. The court rejected this argument. Though they had two suspects in custody, the officers could not know whether there were accomplices in the house or whether there were victims who might need immediate aid. The court held that requiring police to obtain a warrant under these circumstances could jeopardize the premises, reduce the prospect of catching the culprits, and compromise the safety of potential victims inside the house.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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