By Sergeant Betsy Brantner Smith

Reprinted with permission from Policelink.com

I had been a field training sergeant for several years when we hired a new recruit who sat down with my boss and told him that she really didn’t have the time or the inclination to go through all that silly police academy and patrol officer stuff. She asked to be immediately assigned to our Investigations Division as a detective, and by the way, she could only work 8am – 4pm, Monday through Friday. She appeared quite certain that her experienced deemed her more than qualified and didn’t want to “waste time” working patrol. Besides, our department would undoubtedly jump at the chance to take advantage of her extraordinary talent.

Needless to say, we withdrew our offer of employment. This experience was part of a growing trend that we continue to see in law enforcement today: many young officers fail to understand that they need to “pay their dues.” Go to any of the online forums and you’ll find a young wanna-be cop who expects to skip uniformed patrol and go right into SWAT.

Ambition and Goals

Many cops start out with big dreams and even bigger ambitions. I wanted to be the first female chief of my agency. I wanted to be a K-9 officer, a narc, a detective, and a manager too, but it never occurred to me that any of that would happen without a lot of hard work, plenty of advanced training and many years in patrol. Fortunately, I loved being in patrol, but I also enjoyed the other assignments I was privileged enough to be assigned to. As it turns out, my goals and ambitions changed over the years and, as I matured and learned more about the profession and about myself, my idea of “success” changed. Ambition is a great thing, but unrealistic expectations can ruin a law enforcement career before it begins.

Learning the Basics

In most agencies, patrol is where you begin to understand the basic function of policing. Most of what you learn in the academy and in field training relates to the uniformed patrol assignment. Patrol is the crucible by which your ability to make spur of the moment, critical decisions is judged. It’s where you learn to write reports, deal with people, and keep both yourself and the public safe. You begin to figure out how to negotiate departmental politics, determine who might be a good role model or a potential mentor, and what specialty you might truly be interested in. Even though you watched all those hours of “CSI” while in college, when you actually become a cop you may discover that you like the thrill of running code to a burglary in progress much better than lifting latent fingerprints at a cold burglary scene. Patrol is where you grow up.

Moving Up

The skills you learn in patrol ultimately translate to almost every specialty and ancillary assignment in the department. View the early years of your career as a continuation of your education; it is an opportunity to learn, to grow, and to enhance your knowledge. Almost limitless advanced skills can be developed in patrol: interview, interrogation, investigations, fitness, weapons, tactics, reading people, interpersonal communication, leadership abilities and so much more. As you develop talent and expertise, you must also cultivate your own humility. One of the most detrimental traits a young officer can have is arrogance.

Be Realistic and Be Informed

If you want to fight the war on drugs, join the DEA. If you want to fight the war on terror, join the CIA. But even these highly specialized organizations have their “rookies” and their “grunt” duties. Do your research and learn everything you can about the organization you want to join. You may want to work at your local police department for a few years before pursuing a federal career; you just might find that policing in your hometown is exactly what you were born to do. Wherever you decide to work, don’t expect to be assigned to a specialty as soon as you are off probation. Does it happen? I was a detective within two years of becoming a cop. One of my fellow FTOs was still on probation when he became a field training officer. These were unique situations, and while they worked out for us, it’s not always beneficial to be “moved up” too quickly. Although I had been a cop for five years, I was in patrol for less than 18 months before taking the sergeant’s test. I didn’t have the necessary experience to supervise my fellow patrol officers, so my placement on that first list was not very high. When the next test came up three years later, I made sure I was ready.

Check Your Attitude

No one is entitled to a specialty. It’s great to set a goal of making the SWAT team, however it’s arrogant to feel that you are owed it. The line between confidence and hubris is a fine one. It’s great to have high self-esteem, but if it becomes self-adoration, no officer is going to want you as part of his or her specialty unit. I’ve had the opportunity to meet many of the best trainers, investigators, and tactical operators in this country and some of their common traits include approachability, humility, sincerity, dignity and an incapable desire to continue to learn. One of the best compliments anyone can give you, no matter how talented and renowned you are, is “he sure seems like a regular guy” or “I would have never guessed that she is a world champion shooter.” And if you ask, they will all tell you the same thing: “Oh yeah, I had to pay my dues.”

  

 

 

 

The tangled web of police deception

Editors note: This article generated a lot of comments when first published. We think it is a discussion worth having and invite any comments you might have.

By Valerie Van Brocklin
www.valvanbrocklin.com

  

Truth or Consequences.

 

Police lie. It's part of their job. They lie to suspects and others in hopes of obtaining evidence. These investigative lies cover a wide web of deception -- a web that can get tangled. Some investigative lies are legal, some are not, and some generate significant disagreement amongst courts, the public and officers themselves.

 

There are serious consequences here. Officers can:

·         Be sanctioned by the courts.

·         Be sued.

·         Be disciplined in the job.

·         Lose the public confidence.

·         Have evidence suppressed, a case dismissed and a criminal freed.

 

Proper training in this complex arena is critical.

 

Not All Lies Are Created Equal.

 

Effective interrogation of a suspect nearly always involves a deception – expressed or implied. The deception is that it's in a suspect's best interest to talk to police and confess without an attorney present. It's not. A completely truthful officer would tell suspects this. A completely truthful officer would also find confessions extremely rare. [Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far, 99 Mich. L. Rev. 1168, 1198-99 (2001).]

And confessions “are a good thing.” Just ask the Supreme Court:

 

 “Admissions of guilt are more than merely ‘desirable,' they are essential to society's compelling interest in finding, convicting and punishing those who violate the law.” Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).

 

But just as important,

 

 “The police must obey the law while enforcing the law.” Spano v. New York, 360 U.S. 315, 320 (1959). 

 

So, what's the law when it comes to police lying to suspects to get confessions?

·         Courts agree due process requires that confessions be voluntary.  That means they can't be coerced.

·         Courts agree coercion can be psychological as well as physical.

·         Most courts agree they'll decide whether the confession was voluntary or coerced based on a “totality of the circumstances.” 

  

Totality of the circumstances can include:

·         Police conduct – what officers say and do and how they say and do it.

·         The environment – are police questioning the suspect in a 6' X 8' windowless, stuffy room where they stand between him and the only exit?

·         The suspect's age and mental status.

·         The length of the interrogation and whether police offer refreshment, bathroom or other breaks.

·         Etc. – anything else that bears on the coercive nature, or not, of the interrogation.

 

One Person's Lie May Be Another's Coercion

 

Now that we have the basics on the law, we should all be able to agree on what deception is legal and what isn't, right? Let's see. You, dear Reader, work the following case and we'll compare results.

 

Seventeen-year-old Deborah Margolin was brutally murdered. According to her brothers, she was sitting on the porch of her rural home when a stranger drove up and told her a calf was loose at the bottom of the driveway. Deborah went to get the animal – and never returned. Later the same day, her father found her mutilated body in a creek.

 

When you and other officers arrive, Deborah's brothers describe the stranger and his vehicle. You recall that Miller lives nearby, and he and his car match the descriptions. Miller has been previously convicted of a sex offense and arrested for statutory rape.

 

That night, you and another officer question Miller at his job. He agrees to accompany you to the station for further questioning. He's taken into an interrogation room and read his rights, which he waives. The interrogation is taped, so its circumstances are not in dispute.

 

It's clear that you, the interviewing detective, make no threats and engage in no physical coercion. On the contrary, you assume a friendly, understanding manner (itself deceptive, que no?) and speak in a soft tone of voice. You also give Miller certain information, some of which is false.  

 

You initially tell Miller Deborah is still alive. Later you say she has just died. In fact, she was found dead many hours earlier. Throughout the interview, you emphasize that whoever committed such a crime has mental problems and is desperately in need of psychological treatment.  

 

You tell Miller you believe he committed the crime and then you present yourself as a friend who wants to help if he'll just unburden himself. You state several times that Miller is not a criminal who should be punished but a sick individual who should receive help. One hour into the interview Miller confesses, then collapses, and is taken to the hospital.

 

This is a real case – Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986). Do you think the brutal murder and the investigation were getting any media attention and public interest?

 

Before trial, Miller moved to suppress his confession. The defense argued that the detective's method of interrogation constituted psychological manipulation of such magnitude that it rendered his confession involuntary.  The trial court denied the defense motion and Miller was convicted at a trial in which his confession was admitted.

 

But Miller appealed his conviction. A 3-judge state appellate court unanimously reversed the conviction. Based on the same facts, they ruled the detective engaged in deceptive coercion that “shocked the conscience” and violated due process.

 

End of story? Not yet. The state supreme court reinstated the conviction -- but only by the hair's breadth of a 4:3 split decision. After that, Miller took his appeal through federal district court and the United States Supreme Court, and had his conviction affirmed on procedural grounds with neither federal court addressing whether the police conduct was unlawfully deceptive.

 

The moral of this agonizingly long story? Courts are judges, judges are lawyers, and

 “You can't get two lawyers to agree to kill a rat in a bathtub.”  

  [Karl Johnstone, Superior Court Judge, Retired.] 

 

This is the tangled web officers must navigate every day. A web that even judges on the same court, looking at the same facts and applying the same law – with the benefit of briefs, the arguments of counsel and the assistance of law clerks -- disagree on.

 

And what are the possible consequences for officers if they get it “wrong” (that is, a court later disagrees with them) in the crucible of a high profile investigation of a horrific crime?

·         The confession may be suppressed, along with any “fruits of the poisonous tree.”

·         The case may be dismissed -- if there is insufficient evidence without the suppressed evidence.

·         The officer and, by extension, the entire department may face public condemnation and the censure of the court in a written opinion. (Recall that the 3-judge appellate court in Miller wrote that the police deception “shocked the conscience.”)

·         If the case is high profile and politically hot enough, officers may face job discipline over their use of deception, even if they cleared it with the local prosecutor ahead of time. (Just ask the FBI agents who questioned Richard Jewel in the Atlanta Olympics bombing case. Web link below.)

So, what can and should the profession do to prepare officers for this tangled web with its critical consequences? Stay tuned for Training Cops to Lie – Part 2, where we’ll look at:

• More police deception scenarios.
• The psychological effect on officers of lying.
• A training model for the use of police deception.
• Policies and procedures for employing police deception. 
• The response of police leadership to the use of police deception.

U.S. Says F.B.I. Erred in Using Deception in Olympic Bomb Inquiry, http://www.nytimes.com/1997/04/09/us/us-says-fbi-erred-in-using-deception-in-olympic-bomb-inquiry.html

Described by Calibre Press as "the indisputable master of enter-train-ment," Val Van Brocklin is a trainer and author. She combines a dynamic presentation style with over 10 years experience as a state and federal prosecutor where her trial work received national media attention on ABC's Primetime Live, the Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK. In addition to her personal appearances, she appears on television, radio, and webcasts, in newspapers, journal articles and books. Val is a regular contributor to officer.com and lawofficer.com and her writing has also been featured in the Calibre Press Online Street Survival Newsletter, Police Chief magazine, The Law Enforcement Trainer magazine, Integrity Talk magazine, Outdoor magazines and books. When she’s not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Visit her at her website: www.valvanbrocklin.com.

   

www.reid.com

In light of the tragic events of September 11^th, there is a heightened awareness to properly screen new employees. The terrorist's attack on the WTC and Pentagon has greatly expanded the definition of a Asensitive position. In August of this year who would have imagined that crop dusters, truck drivers, water treatment employees or airline caterers would require employees of the highest integrity? As President Bush stated, The United States will never be the same again.

The purpose for preemployment screening is to predict future behavior. While it will never be possible to perfectly forecast a person's behavior, psychologists have long established that the best predictor of a person's future behavior is to evaluate their recent past behavior. Consider that John and Joe are both applying for a position of trust. John has been discharged from two employers in the last 5 years and has a criminal conviction for possession of marijuana. In addition, John has stolen $200 in merchandise from employers in the last 5 years. Joe has never been fired from a job and his employment history reflects steady promotions. Joe has no criminal record and has not stolen from recent employers. Even though there is no guarantee that John will engage in acts of dishonesty if hired, research strongly supports the finding that if such activity does occur, John will be much more likely involved in it than Joe. From a productivity, loss prevention and safety perspective, employers should hire only those job applicants who represent a low risk for misconduct.

There are a number of preemployment screening procedures to evaluate a person's past behavior. The following chart lists the advantages and disadvantages of some of these:

Screening Procedure	Advantages	Disadvantages
Drug Tests	Accurately detects recent drug use	Drug-using applicants may abstain while seeking employment
Criminal Record Check	Will reflect criminal convictions only in those counties checked	Does not reveal crimes the applicant committed but was never caught for
Prior Employer Contacts	Verifies that the applicant worked for the employer	Previous employers often will not reveal adverse information
Preemployment Polygraph Examination	Can identify past adverse behaviors that only the applicant knows about	The Employee Polygraph Protection Act of 1988 precludes most private employers from using the polygraph
Face to Face Integrity Interview	Can identify past adverse behaviors that only the applicant knows about	Requires an interviewer trained in forensic interviewing techniques

An employer must recognize that no one knows more about a job applicant's past behavior than the applicant himself. To thoroughly learn about a person=s past requires a procedure where the individual provides that information, which is then subject to verification either through physiological data (polygraph) or behavior symptom analysis (Integrity Interview). Because neither the polygraph nor the Integrity Interview are 100% accurate, an employer should implement additional preemployment screening tools as part of the entire employee selection process. At a minimum, an employer should contact past employers. Falsification of an employment application is the most common area of deception for job applicants. This includes failure to list all past employers, reasons for leaving jobs, job responsibilities and level of education or training.

When filling a position of trust (money handling, access to merchandise or company records) the employer should not only verify the applicant's employment history but perhaps conduct a criminal record check and require drug screening as well. It is also advisable to require that the applicant produce original documents that are job related. Examples of these documents may include a valid drivers license, a social security card, high school or college transcript, professional license and proof of legal ability to work in the U.S.

The face to face interview with a job applicant is undoubtedly the most important part of the screening process. Too often, this meeting is conducted with the assumption that everything the applicant wrote on the employment application is the truth. Rather than verifying the information on the application, the employer spends time talking about benefit packages, hours, wages and promotion possibilities within the company.

A properly conducted preemployment interview should consist of the applicant being asked to review his last five years of employment history including the specific dates of employment, job responsibilities and reason for leaving each job. To gauge job performance and reliability, the applicant should be questioned about past disciplinary actions, promotions, absenteeism and tardiness. The applicant should also be questioned about use of illegal drugs in the last two years and other drug related activities (buying, selling, use during or just before work hours). Finally, the applicant's illegal activities should be pursued starting with any criminal convictions in the last seven years. It is important to realize that approximately 80% of criminal admissions elicited during a preemployment interview involve crimes the applicant was never arrested for. Therefore, the interviewer must ask specific questions about engaging in crimes for which the applicant was never caught.

Depending on the position being applied for, the preemployment interview should delve into specific past acts of recent job-related behavior. A person applying for a cash-handling position should certainly be asked if he stole money from past employers. An applicant for a driving position should be thoroughly questioned about his driving record especially as it relates to accidents that were unreported and driving under the influence, even though he was never caught. A police candidate with previous law enforcement experience should be asked about use of excessive force during an arrest, theft from a crime scene or perjury while testifying in court or applying for a warrant.

A job applicant who presents a high risk for liability, dishonesty or safety concerns will not volunteer adverse information on an employment application. The employer must aggressively seek out this information to detect unsuitable applicants before they are put on the payroll and jeopardize the company's future productivity. In uncertain economic times it is tempting to view preemployment screening as a luxury easily cut from a corporate budget. However, human resource professionals have long known that it is far less costly in time and money to identify an unqualified job applicant and not hire that person than to fire that same applicant after his behavior has hurt the company's productivity, profit or reputation.

Our next web tip will discuss the legal aspects of preemployment screening and procedures to implement a cost-effective screening program.

Credit and Permission Statement: This Investigator Tip was developed by John E. Reid and Associates Inc. Permission is hereby granted to those who wish to share or copy the article. For additional 'tips' visit www.reid.com; select 'Educational Information' and 'Investigator Tip'. Inquiries regarding Investigator Tips should be directed to johnreid@htc.net. For more information regarding Reid seminars and training products, contact John E. Reid and Associates, Inc. at 800-255-5747 or www.reid.com.

WARRANTLESS MOTEL ROOM ENTRY UPHELD IN 3rd CIRCUIT

Reprinted from  WWW.PATC.COM

©2011 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM) United States v. Butler,  (3rd Cir. Decided December 28, 2010 Unpub.)

On December 28, 2010, the Third Circuit Court of Appeals decided the United States v. Butler [i], which serves as an excellent review of the “exigent circumstance” exception to the search warrant requirement.  The facts of Bulter are as follows:

After receiving a report that drug trafficking activity was taking place at an apartment building located at 941 Hamilton Street in Allentown, Pennsylvania, undercover Allentown Police Officers Christopher Cruz, Michael Faulkner, and Pete McAfee went to that address. Once on location, Officer Cruz spoke with the complainant, who identified Apartment #304 as the likely locus of the drug dealing. She also cautioned that one of the occupants was armed and often kept a handgun in his waistband. Cruz then called for backup, and Allentown Police Officers William Reinik, Michael Mancini, and Kyle Hough responded to Cruz's request. The officers placed Apartment #304 under surveillance for approximately fifteen minutes, but their efforts proved fruitless, as they did not observe anyone entering or departing the apartment.

The officers next decided to employ the so-called "knock and talk" technique to investigate further. The officers split into two groups. The first group, which consisted of Officers Cruz, Reinik, and Mancini, proceeded to the front door of Apartment #304. The remaining officers covered a separate door which led to a different part of the apartment. Officers Reinik and Mancini flanked either side of the front door, while Officer Cruz positioned himself directly in front of the front door.

Officer Cruz knocked on the front door. When a voice from inside asked who was there, Officer Cruz responded, "Chris." A man later identified as Butler opened the door slightly, holding a pistol at hip level in his left hand, aimed at Officer Cruz.  Seeing the handgun pointed at him, Officer Cruz yelled, "Go, go, go, gun," and directed Officer Mancini to enter the apartment. The three officers simultaneously identified themselves as police, and Butler attempted to slam the door. 

Officer Reinik stuck his foot in the doorway, preventing Butler from slamming the door. Butler fled into the apartment, and Officer Cruz instructed Officer Mancini and the other officers to enter the apartment. The officers pursued Butler into a bedroom, where they found him lying under a blanket on a makeshift mattress on the floor.  Butler's co-defendant, Bill Murray, was also in the bedroom. Police found Murray using a razor to cut a large white rock that was later determined to be crack cocaine.  Five crack pipes were present on the table next to Murray. Police secured both men and searched the room for weapons. When Butler failed to respond to the officers' inquiries about where the gun he had pointed at Cruz was located, Officer Hough picked up the blanket that had been covering Butler, and a loaded nine-millimeter pistol fell to the floor.

A search of Butler led to the discovery of $672 in cash, and thirty-seven ziploc bags, each containing crack cocaine. Murray and Butler both waived their Miranda rights, and Murray (the lessee) consented to a search of the apartment, which turned up further drug-related paraphernalia…[ii] [internal citations omitted]

Butler was charged with several federal drug and weapons violations.  He filed a motion to suppress in district court which was denied.  He then appealed to the Third Circuit Court of Appeals and argued that the officers violated the Fourth Amendment when they entered his apartment without consent and without a warrant.

The court of appeals first noted several important rules relevant to this case.  These rules are as follows:

• When people have a reasonable expectation of privacy in their persons or effects, all searches and seizures must be supported by a warrant, unless they fall into one of the exceptions to that requirement. [iii]
• One such exception to the warrant requirement is when exigent circumstances exist.  Examples of exigent circumstances include, but are not limited to, the imminent loss or destruction of evidence, hot pursuit of a fleeing felon, and the risk of danger to police officers or others. [iv]
• Police cannot avail themselves of the exigent circumstances exception to the warrant requirement if they deliberately create the exigent circumstances. Exigent circumstances, however, do not meet Fourth Amendment standards if the government deliberately creates them. [v] [internal quotations omitted]
• In assessing whether the police impermissibly create exigent circumstances, we focus on the reasonableness and propriety of the officers' actions and investigative tactics leading up to the warrantless entry.[vi] [internal quotations omitted]
• Not every interaction police initiate with citizens implicates the Fourth Amendment. For instance, the Fourth Amendment does not proscribe police from seeking citizens' voluntary assistance in discovering or investigating crime. [vii]
• Officers may seek citizens' consent in investigating crimes, and that officers need not always announce their true identities when they do so…consistent with the Fourth Amendment, police may employ the so-called "knock and talk" technique as a tool to investigate criminal activity. [viii]
• "Knock and talk" investigations normally do not raise Fourth Amendment concerns, we have held, because when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict  their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. [ix]

In light of the above rules, the Third Circuit set out to decide whether the officers had exigent circumstances to enter the motel room without a warrant, when one officer observed Butler pointing a gun at the officers while standing in the apartment doorway. 

First, Butler attempted to argue the fact that one officer stated that he did not see him holding a gun.  However, the court noted (1) that that same officer stated that he did not see Butlers hands during the encounter (obviously explaining why he did not see a gun), and (2) the trial court credited the statement of the officer that observed the gun.  The court of appeals is obligated to follow the factual finding of the trial court unless there is a clear error in a finding of fact.  As such, the court of appeals followed the ruling of the trial (district) court that Butler did point a gun at the officers when he opened his motel room door. 

Second, Butler argued that the officers were not entitled to rely on the exigent circumstance exception to the warrant requirement because they impermissibly created or manufactured the circumstances on which they based their entry.  Butler based this argument on the United States v. Coles [x].  Because it is important to the analysis of Butler’s case, the Third Circuit then reviewed the facts of Coles which it stated as follows:

Terrence Coles was staying in a hotel room in Philadelphia for an extended period of time. The hotel manager, David Bradley, had unsuccessfully sought to locate Coles to discuss payment for the room, and Bradley let himself into Coles's room to see if the room was still occupied. Upon doing so, Bradley observed what he believed to be drugs and drug-related paraphernalia in the room, and immediately contacted the police. The police entered Coles's room without a warrant, an entry the government later conceded was illegal. Thereafter, the police decided to put Coles's room under covert surveillance. Apparently frustrated at the progress of their stakeout, authorities decided to try to access Coles's room. Police first attempted to gain access by subterfuge, knocking on the door and announcing "room service." A voice from inside responded that they had not ordered anything, and refused to open the door. Police again knocked, this time stating that they were from maintenance and were responding to a leak. The occupants refused entry a second time, responding that there was no leak. Police abandoned subterfuge on their third attempt. Knocking forcefully on the door, the officers identified themselves as police, telling the occupants to "'open the door, this is the police.'"  The majority described what occurred next:

At this critical juncture, the officers heard the sounds of rustling and running footsteps. Sgt. Josey attempted to open the door using an electronic passkey provided by [the hotel manager], but the officers could not enter because there was a bar latch over the door. After partially opening the door with the passkey, the officers heard the sound of a toilet flushing and the sounds of more running.

Coles eventually opened the door for the officers. Upon entering the room, the police discovered, among other things, several containers of cocaine base "crack," multiple bags containing cocaine, 25 vials of "crack" cocaine, approximately $2,000 in cash, and a firearm inside of Coles's open carrying bag . . . . Coles [was] then arrested. xi]   [internal citations omitted]

The Third Circuit, in Coles, held

We emphasize that the record reveals no urgency or need for the officers to take immediate action, prior to the officers' decision to knock on Coles's hotel room door and demand entry. It is, of course, true that once the officers knocked on the door and announced, "open the door, this is the police," they heard sounds indicating that evidence was being destroyed. But that exigency did not arise naturally or from reasonable police investigative tactics. Quite to the contrary, the officers, after their pretextual announcements had failed to gain entry to room 511, deliberately created the exigency by knocking on the door to room 511 and demanding entry. [xii]

After reviewing Coles, the Third Circuit found it distinguishable from Butler.  First, the police offices in Butler were less certain that criminal activity was taking place than the officers in Coles.  Second, in Coles the officers identified themselves as police and ordered Coles to open the door, whereas, in Butler, the officers did not identify themselves as police and Butler opened the door voluntarily.  The Third Circuit then stated

It is undisputed that Butler opened the door voluntarily. Critically, when he did so, he pointed a gun at Officer Cruz. At that point, and only at that point, exigent circumstances arose, created by Butler, as Officer Cruz had reason to believe that his life and the lives of his fellow officers were in danger. Officer Cruz relatedly had probable cause to believe that Butler had committed aggravated assault by pointing a pistol at him, and could therefore lawfully pursue a fleeing Butler into the apartment to arrest him. For these reasons, exigent circumstances justified the officers' entry into Apartment #304 to secure Butler's arrest. [xiii]

In finding that the officers had exigent circumstances for warrantless entry in Butler, the court also refused to hold, as Butler had argued, that officers with probable cause to obtain a search warrant must do so rather than attempting to conduct a voluntary “knock and talk.”  The court reasoned that this would remove a valuable investigative tool from officers, and it would force officer to make judgments typically reserved for magistrates.  As such, the court refused to hold that the officers were required to obtain a search warrant rather than attempt a knock and talk simply because they may have probable cause.

Butler also argued that Officer Cruz’s use of subterfuge, particularly stating it was “Chris” when asked by Butler who was at the door.  The court noted

It is well-established that police do not necessarily have to identify themselves as police when they investigate criminal activity.[xiv] [internal citations omitted]

In Butler, Officer Cruz testified that identifying himself as a law enforcement officers would have deterred the occupants from opening the door and talking to him.  The court, in light of the rule above, held that the officer was being prudent and reasonable in his use of knock and talk technique.  As such, Butler’s argument failed.

After having resolved the discussed issues in favor of the government, the Third Circuit affirmed the denial of the motion to suppress.

___________________________________________________________________

NOTE: Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

SEE RELATED ARTICLES:

Reasonable expectation of privacy in information provided to hotel/motel (Legal Question 2007)

Dismissed Case Based on Unlawful Entry (Legal Question 2007)

Warrantless In-Home Arrests and Threshold Arrests (Legal Update 2010)

Underage Possession of Alcohol and Warrantless Home Entry (Legal Update 2010)

When Imminent Destruction of Evidence Authorizes Warrantless Home Entry (Legal Update 2008)

Consent, Exigent Circumstances, and Warrantless Home Entry (Legal Update 2008)

11th Circuit Upholds Warrantless Entry Into Barn (Legal Update 2011)

9th Circuit Upholds Warrantless Search of Motor Home (Legal Update 2010)

 

CITATIONS

[i]   No. 05-2100, 2010 U.S. App. LEXIS 2638 (3rd Cir. Decided December 28, 2010 Unpub.)

[ii]   Id. at 2-4

[iii]   Id. at 7 (citing United States v. Hartwell, 436 F.3d 174, 177 (3d Cir. 2006) (citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993)

[iv]   Id. at 8 (see Steagald v. United States, 451 U.S. 204, 211-12, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981); see also United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006); Estate of Smith v. Marasco, 318 F.3d 497, 518 (3d Cir. 2001)

[v]   Id. at 9 (quoting United States v. Acosta, 965 F.2d 1248, 1254 (3d Cir. 1992))

[vi]   Id. (quoting United States v. Coles, 437 F.3d 361, 366 (3rd Cir. 2006))

[vii]   Id.

[viii]   Id. at 11

[ix]   Id. at 11-12 (citing Estate of Smith v. Marasco, 318 F.3d 497, 519 (quoting Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment § 2.3(f) (3d ed. & Supp. 2003); see also United States v. Chambers, 395 F.3d 563, 568 n.2 (6th Cir. 2005))

[x]   437 F.3d 361, 366 (3rd Cir. 2006)

[xi]   Id. at 18-19 (citing Coles, 437 F.3d at 363)

[xii]   Id. at 19-20 (citing Coles, 437 F.3d at 371)

[xii]   Id. at 21

[xiv]   Id. at 27

 

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