In 1763, William Pitt delivered remarks in the House of Commons that continue today to be a core principle of our criminal justice system:
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”
Courts are averse to giving police officers wide latitude to conduct warrantless searches once the area to be searched crosses the home’s threshold. Of course, the courts have carved out limited exceptions to include the need to give emergency aid, exigent circumstances where a person may escape or evidence destroyed, or in those cases where there is a knowing and voluntary consent given to search.
United States v. Cooks starts as an emergency situation, but according to the defendant, the emergency ends and officers should have stopped their search and secured the house before continuing further. Fortunately, the 11th Circuit thought differently. So, let’s take a look at how the court dealt with this case that started as a SWAT emergency.
Willie Cooks was a known member of the “Bloods” street gang and was wanted by the Birmingham Police Department for a serious assault. Members of an investigative task force went to Cooks’ home to serve the warrant. However, after forcefully entering the house, the officers determined that no one was home. Officers went back the next morning and observed a vehicle come and go several times. As the vehicle came back to the driveway the officers attempted to question the driver but the driver – Precious Clemens – ran into the house and locked the door. Officers attempted to make contact with the residents but no one came to the door. Shortly after their initial attempts, officers made contact with two other female residents who told the officers they wanted to leave but could not. The two females advised the officers that Precious Clemens and Willie Cooks had barricaded the doors and Cooks had several guns. The SWAT team was called out and negotiations continued for several hours. Officers could hear what sounded like an electric drill running near the front door and the occupants told officers Cooks was “doing something in a hole in the floor.” When negotiations failed, officers deployed tear gas and broke a window to rescue the two female occupants. The females reiterated that Cooks had a number of weapons and had done something in the hole in the floor that led to a crawlspace below the house. Officers then breached the front door and took Cooks and Clemens into custody.
Officers then conducted two protective sweeps of the house – one lasting 30 seconds and the second lasting 3-5 minutes. During the sweep, officers located a 4×4 hole in the floor that was covered by a piece of plywood that had been screwed down. The hole was not present when officers searched the house the day before. Officers unscrewed the plywood and an officer went into the crawlspace where he observed a number of weapons in plain view. The officers secured the weapons and inventoried 9 pistols and 22 long guns.
Cooks was subsequently charged with federal gun possession charges. At trial Cooks filed a motion to suppress the guns, claiming that there was no exigency and, absent a warrant, the weapons were illegally seized. The trial court determined that while the search of the crawlspace did not meet the requirements for a protective sweep, the search did meet the requirements of the exigent circumstances exception and, therefore, the gun evidence was allowed. Cooks pled guilty and this appeal followed.
Eleventh Circuit Findings
The appellate court quickly determined that if the officers were legally in the crawlspace, the plain view doctrine applied since the guns were readily visible to the officer. The key question then was whether the officers’ entry into the crawlspace was proper.
The 11th Circuit did not reach the issue of whether the entry was proper as part of a protective sweep. Rather, the court determined that the search met the criteria for an emergency aid search under the exigent circumstances exception to the warrant requirement. To meet this standard, the officers must be able to show that they reasonably believed a person was in danger of imminent harm and that the resulting search was limited in scope to the nature of the emergency.
Cooks claimed the officers stepped outside of the narrow scope of the search by ripping up the nailed down plywood over the hole. The court disagreed, finding that “one of the most urgent of exigent circumstances is the need to protect or preserve life in an emergency situation”. Here, the officers had reason to believe that there may have been additional hostages or injured persons in the crawlspace and their search was limited to that area. Based on these findings the 11th Circuit affirmed the conviction.
Certainly, this is a positive result for the officers but it is one of a number of cases where a SWAT emergency operation has ended and officers continued into a protective sweep or extended search of the house. These extended searches are often “close calls” for the court and we know in these “close call” cases we are rolling the dice on how the court will rule. In past cases, we have seen that the officers and the prosecution have not fared so well and a number of these cases have resulted in critical evidence being suppressed.
It is important for officers and incident commanders at these scenes to constantly evaluate the status of the so-called “exigency”. There is a point at which the emergency or exigency ends and officers need to stop their activities until a duly issued search warrant authorizes the search to continue. There comes a point in every operation where “the government forces dare not cross the threshold,” and we need to be mindful of when that moment has arrived and stop the search.