United States v. Turner, 2025 WL 78721 (5th Cir. 2025)
In San Antonio, Texas, police officers were dispatched to an apartment building based on two calls reporting a gunshot and “a bunch of yelling down the stairs.” When Officer Brian Bonenberger arrived, he encountered a woman walking her dog. The woman told him she lived in apartment #2206 and thought she’d heard a gunshot from “directly above her apartment or potentially outside.” Bonenberger went to the apartment over #2206 and knocked. No one answered the door, and the officer neither saw nor heard any sign of disturbance. The officer went to a parking lot across the street and began to complete an incident report.
The second call came a short time later. After giving her name and apartment number, the second caller reported a disturbance in the apartment next door. Bonenberger and another officer entered the caller’s apartment and found a fresh bullet hole and a mark on the carpet. Roughly assessing the bullet path, the officers concluded the shot came from the neighboring apartment. The caller also told the officers, “They have a baby in there.”
After officers spoke among themselves to determine their next step, Officer Chad Bendele went to the back of the building to watch the rear windows. While walking behind the complex, Bendele encountered Jonte Turner. Learning that he lived in the apartment from which the bullet was likely fired, the officers discussed waiting for a warrant. Turner refused to voluntarily allow the officers to look in his unit, though he did offer to go in by himself (with no officers present), a suggestion the officers found unacceptable. After consulting a department detective, Sergeant William Roberts (the supervising officer on scene) decided exigent circumstances dictated they should enter Turner’s apartment to conduct a protective sweep. They saw guns and gun magazines in plain view. The officers arrested Turner and obtained a search warrant. During the subsequent search, they found and seized firearms, magazines and marijuana.
Turner was charged with possession of a firearm in furtherance of a drug trafficking crime, possession of a firearm by a person under indictment and possession with intent to distribute marijuana. He asked the trial court to suppress the evidence, arguing the initial protective sweep and warrant search violated the Fourth Amendment. The trial court declined to suppress the evidence, ruling exigent circumstances justified the warrantless entry and protective sweep. Turner appealed.
The court of appeals upheld the denial of Turner’s suppression motion. The court held that exigent circumstances and probable cause justified the warrantless entry and protective sweep of Turner’s apartment. The court cited five factors it considers when assessing a claim of exigent circumstances:
- the degree of urgency involved and the amount of time necessary to obtain a warrant;
- the reasonable belief that contraband is about to be removed;
- the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought;
- the information indicating that the possessors of the contraband are aware that the police are on their trail; and
- the ready destructibility of the contraband and the knowledge that efforts to dispose of it and to escape are characteristics in which those trafficking in contraband generally engage.
The court opined that the factors addressing whether the “contraband was about to be removed” and “ready destructibility of contraband” weighed against a finding of exigency. After all, guns “are not the type of contraband that one would expect to be removed or destroyed during the time it takes to obtain a warrant with officers stationed outside the apartment.” However, the other factors weighed in favor of finding exigent circumstances. Based on evidence collected so far, the officers reasonably believed someone fired a gun from Turner’s apartment, posing an immediate safety risk.
Turner argued officers “did not see or hear someone inside.” The court responded that the exigent circumstances exception does not apply only when officers see or hear someone inside, stating, “Officers need only reasonably believe that someone is inside who could pose a security risk.” Though Turner claimed no one was in the apartment, the officers were justified in not relying on his claim, particularly when they learned Turner had a criminal record. The officers had no way of knowing whether Turner’s girlfriend and her baby were still in the apartment.
The court noted the protective sweep was prompted by exigent circumstances and limited in scope and duration, lasting only 99 seconds and confined to areas where a person could be hiding. The court held the search warrant was supported by probable cause. Consequently, the 5thCircuit affirmed the district court’s denial of Turner’s motions to suppress.
