Skipping an Easy Step Leads to Suppression

by | February 23, 2023

United States v. Banks, 2023 WL 1956605 (7th Cir. 2023)

This case illustrates how good police work can easily be marred by failing to secure a warrant. An officer saw a Snapchat post of Jeremy Banks—a convicted felon—barbequing on his front porch with a gun sitting on the grill’s side shelf.

Here’s the suggested affidavit for a search warrant for this case:

  • The officer’s resume, cut and pasted from the last affidavit.
  • “I know Jeremy D. Banks. He’s a convicted felon.”
  • “Here’s a picture of Jeremy Banks he just posted on Snapchat for all the world to see.” Attach the photo.
  • “I can plainly see that Jeremy is grilling up a hamburger and there is a gun sitting right there on the grill.”

That’s it. It might take all of 10 minutes to write and submit to a judge. Even less time to obtain a telephonic warrant.

Unfortunately, the officer who saw the Snapchat picture skipped this step. Instead, officers went to Banks’ house, found him grilling on the front porch and grabbed him. A struggle ensued; Banks and the officers entered the front room. Banks had a loaded gun in his pocket and a box of ammunition in the front room. He was charged with being a felon in possession of a firearm.

Banks asked the court to suppress the evidence, arguing the officers’ intrusion on the porch without a warrant was unlawful. The officers explained they had reasonable suspicion to believe Banks was committing a crime, and that they didn’t have time to obtain a warrant.

“The officers here had more than enough to pick up the telephone, call the on-duty judge, and get the authorization the Fourth Amendment required before stepping onto Banks’s porch.”

“A man’s house is his castle,” said Sir Edward Coke, and no place enjoys a higher degree of protection under the Fourth Amendment. “The home is first among equals” (Florida v. Jardines, 569 U.S. 1 (2013)). And the Fourth Amendment provides equal protection to a home’s curtilage, or “the area into which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life” (Oliver v. United States, 466 U.S. 170 (1984)).

The front porch of a residence is generally part of the curtilage, requiring a warrant, consent or some other Fourth Amendment warrant requirement exception (Florida v. Jardines). Applicable exceptions might include exigent circumstances such as rendering emergency aid, preventing the imminent destruction of evidence or engaging in hot pursuit of a fleeing felon. Alternatively, the resident can consent to entry or the officers can conduct a consensual knock-and-talk.

The court concluded: “The big picture takeaway from today’s decision deserves underscoring. The police could have avoided this outcome by taking a small but necessary step. The suppression testimony confirmed that the County has a judge on call 24 hours a day, 365 days a year to consider and issue search warrants. The officers here had more than enough to pick up the telephone, call the on-duty judge, and get the authorization the Fourth Amendment required before stepping onto Banks’s porch.”

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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