Exigent Circumstances Under the Fourth Amendment May Extend to the Need to Interview an Arrestee in Place
In a split decision in United States v. Delva, No. 15-cr-683 (Kearse, Winter, Jacobs), the Second Circuit held that the Fourth Amendment allowed law enforcement officers to seize cell phones and a number of letters that were in plain view in the room of a suspect’s home where he was interviewed immediately after an arrest. The majority opinion, written by Judge Kearse, relied on the “exigent circumstances” doctrine to hold that it was reasonable under the circumstances to hold an interview in the suspect’s home, which allowed the officers to seize incriminating evidence that was in plain view without obtaining a search warrant. Although the majority opinion is careful to recognize that the exigent circumstances exception requires a case-by-case analysis, the decision extends the infrequently applied exigent circumstances doctrine to a new set of facts. The decision drew a dissent from Judge Jacobs, who objected to the majority’s reliance on the exigent circumstances doctrine when the government had not raised it in the trial or appellate court, thus denying the defendant any chance to respond to this somewhat novel analysis offered by the Court.
The case arose out of a brutal drug-related double kidnapping, robbery, and assault committed in 2012 in the Bronx. The panel opinion begins with a recitation of the gory facts, which involved a violent home invasion robbery followed by a second kidnapping, all in a search for drug money. The resulting investigation led law enforcement officers to a small, three-room apartment with an arrest warrant for Gregory Accilien—but no search warrant. When the police arrived, Accilien was in the apartment along with defendant David Delva, who was not yet a suspect in the kidnapping/robbery, as well as two other men, a woman, and several children. After entering the apartment, the police moved the woman and children to the living room, handcuffed three of the men in the kitchen, and handcuffed Delva on the floor of the bedroom. While securing Delva and checking the bedroom for additional people, the officers spotted a bag of cocaine and a loaded gun through an open closet door. They seized the gun and the drugs and moved Delva to the kitchen. It took the officers less than two minutes to secure the apartment.
While Accilien was put under arrest for the kidnapping, the officers testified that they did not know who was responsible for the guns and the drugs found in the bedroom, which contained both a bed and an air mattress. The officers took Accilien into the bedroom—the only empty room other than the bathroom—to question him. Accilien said that the gun and the drugs were Delva’s, and Delva was arrested and charged under state law. However, while they were in the bedroom questioning Accilien, one of the officers observed two cell phones, one on the TV and one on the bed, and several letters addressed to Accilien from an individual who was already under arrest for the kidnapping. The letters implicated Delva in the kidnapping, and he was rearrested on federal charges several months later.
The primary question on appeal was whether the district court (Forrest, J.) erred in denying the motion to suppress the phones and the letters. There was little dispute that the items were in plain view, so, under well-established case law, the officers could seize the phones and letters so long as the officers were lawfully in the bedroom when they spotted them. The Second Circuit began by rejecting the reasoning of the district court, holding that the phone and the letters were not seized as part of a “protective sweep” of the apartment. The Second Circuit found that the district court erred by treating the phone and letters, which the officers saw in plain view during the interview of Accilien, just like the gun and the drugs, which they saw in plain view while securing Delva and the bedroom. While the officers behaved reasonably to ensure their safety by conducting a protective sweep, handcuffing Delva, and checking that the bedroom was otherwise empty, they did not see the phone or the letters on this first trip to the bedroom during this protective sweep. It was only when the officers re-entered the bedroom, after the apartment had been secured, that the additional evidence was found. At that point, additional searches could not be justified by the officers’ concern for their safety.
Rather than reverse the decision of the district court and remand the case, the majority instead identified a different doctrine that supported the constitutionality of the search: the exigent circumstances exception. The Court held that this doctrine justified the officers’ presence in the bedroom when they saw the cell phones and letters. This rationale had not been raised by the government at the trial court or circuit court level. The classic exigent circumstances case involves a situation in which the police must enter a private area to prevent the destruction of evidence or a suspect’s flight. But the majority extended the doctrine’s reach to these facts, noting that “reasonableness is always the touchstone of Fourth Amendment analysis.” The Court cited to its prior decisions considering whether warrantless conduct was permitted. E.g., United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc). The majority found that it was reasonable for the officers to take Accilien into the bedroom to interview him because (1) they did not know who to arrest for possession of the drugs and the cellphone, (2) Accilien might have been intimidated from speaking freely in the presence of the others, and (3) besides the bathroom, the bedroom was the only empty room in the apartment with a door. The case cited by the panel involving the most analogous facts to those in Delva was an unpublished decision from the Sixth Circuit. See United States v. Ocean, 564 F. App’x 765, 771 (6th Cir. 2014).
Judge Jacobs dissented from the Fourth Amendment analysis, and would have remanded the case to the district judge to consider the exigent circumstances exception, the application of which is a fact-dependent question. He observed that because the government had never raised that exception, either before the trial court or on appeal, Delva had no opportunity to respond, either on the facts or the law. Moreover, Judge Jacobs said that “[i]t is not as though there would have been nothing for Delva’s counsel to say,” noting that no published opinion from any circuit court has ever applied the exigent circumstances doctrine to similar facts.
In a brief final section of the opinion, the majority rejected Delva’s remaining arguments. It held that the district court did not abuse its discretion in allowing one of the victims to testify about her rape, even though Delva was not charged with rape, because it formed a part of the story line that explained how the crime progressed. The Court also found no abuse of discretion in the removal of a juror who had failed to disclose arrests and convictions at voir dire and during later questioning. Finally, the Court rejected Delva’s challenge to his sentence which, at 360 months, was below the Guidelines range of life plus five years.
The Court of Appeals was evidently troubled by the district court’s ruling on the protective sweep doctrine, believing that the district court expanded the doctrine beyond the very specific type of situation it was meant to address: a warrantless seizure of evidence that is seen in plain view while the police officers are conducting a necessary safety procedure during an arrest. Where the officers have secured the premises and are taking second-order investigative steps, the protective sweep doctrine no longer applies. By deciding the appeal on alternate grounds, the Court of Appeals was able to avoid remanding this case, involving very serious allegations, for a new trial. However, this result came at the cost of a broadened interpretation of the exigent circumstances doctrine. Given the fact-specific nature of the Court’s decision and the Court’s emphasis on reasonableness as the touchstone of Fourth Amendment analysis, it leaves open the possibility of limiting the reach of Delva in future cases. Finally, although the majority seems to have believed that no additional fact-finding or briefing was necessary, litigants are rightly disturbed to lose on an issue that they never had the opportunity to brief or argue. In light of this, litigants will probably hope that this procedure continues to be the exception and not the rule.
-By Stephanie Teplin and Harry Sandick