Court would rule that the arrest of Herrold in his home without a
warrant violated the Fourth Amendment and would reverse a
conviction based on the evidence seized in plain view during the
illegal arrest and entry of Herrold's trailer.
With respect to DeSoto that case must be interpreted in light
of Berkowitz, the most recent Seventh Circuit case on the
subject. Moreover, the Court of Appeals in DeSoto agreed with
the district court that the police had probable cause to believe
that individuals in the apartment would attempt to destroy
evidence. There were exigent circumstances in that case which
justified the warrantless arrest and entry.
Therefore in the instant case in order to justify the
warrantless arrest and entry into Herrold's residence exigent
circumstances had to be present prior to Trooper Hill knocking on
the door of the trailer.
The Government bears the burden of demonstrating exigent
circumstances. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969,
26 L.Ed.2d 409 (1970). Exigent circumstances in connection with a
warrantless arrest in a residence "refer to a situation where the
inevitable delay incident to obtaining a warrant must give way to
an urgent need for immediate action." United States v. Morgan,
743 F.2d 1158, 1169 (1984), cert. denied, 471 U.S. 1061, 105
S.Ct. 2126, 85 L.Ed.2d 490 (1985). Exigent circumstances which
have been recognized as justifying a warrantless arrest include
hot pursuit of a fleeing suspect, the risk of destruction of
evidence, and threats of physical harm to law enforcement
officers or other innocent individuals. United States v.
Velasquez, 626 F.2d 314, 317 (3d Cir. 1980). Whether an exigency
exists depends upon the circumstances at the moment the officers
make the decision to effectuate a warrantless arrest of the
suspect on the premises. Furthermore, there must be objective
indicia that an exigent circumstance exists. We are of the view
that there were no exigent circumstances present when Trooper
Hill made the decision to effectuate a warrantless arrest.
The Government contends that Herrold's warrantless arrest can
be justified by fear that evidence would be moved or destroyed
and by Trooper Hill's "hot pursuit" of Herrold in Herrold's
trailer after Herrold was arrested. In order for police to arrest
a suspect based on exigent circumstances, those circumstances
must exist prior to the decision to make the warrantless arrest.
See, e.g. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18
L.Ed.2d 782 (1967); Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct.
2091, 80 L.Ed.2d 732 (1984). In this case there was no "hot
pursuit." Herrold came to the door in response to Trooper Hill's
knocking. Trooper Hill was not pursuing Herrold from a crime
scene into his home. See Welsh v. Wisconsin, 466 U.S. at 753,
104 S.Ct. at 2099 (hot pursuit is "immediate or continuous
pursuit of [the suspect] from the scene of the crime.") Moreover,
in this case, it was after Trooper Hill notified Herrold that
Herrold was under arrest that Herrold fled down the hall of his
home. Trooper Hill was not in "hot pursuit" of a fleeing felon
and thus the warrantless arrest cannot be justified on the basis
of the exigency of "hot pursuit."
The Government also argues that Trooper Hill's warrantless
entry and arrest of Herrold can be justified on the basis of
destruction of evidence. The Government offers three
justifications: (1) that Herrold was planning on leaving the
trailer to travel to a bar to sell his drugs; (2) that the
neighbors would notice the presence of the police officers
outside Herrold's trailer and call to inform him of the same; and
(3) that Herrold would consume the drugs. In practically every
drug investigation, there is the possibility that a suspect would
leave his residence with the drugs, neighbors would notice the
presence of police and alert the occupants of the residence under
observation or the suspect could consume the drugs, although we
doubt in this case that Herrold or his girlfriend could or would
have consumed all of the drugs. Moreover, the argument that
Herrold or his girlfriend would have consumed all of the drugs is
inconsistent with the Government's argument that he was planning
on leaving the trailer to sell the drugs at bars.
The critical point, however, is that all three arguments are
based on pure speculation. There is no objective indicia that any
of the events was about to happen. It is speculative whether
Herrold was going to leave the trailer and if he did the police
could have immediately arrested him. Moreover, if Herrold left
the trailer and was arrested this fact would have created an
exigency to enter and secure the trailer to prevent the possible
destruction of evidence if the officer had probable cause that
other drugs were located in the trailer and an objective
indication that someone remained in the trailer. The arrest of
Herrold outside the trailer would have alerted the remaining
occupants of the trailer to the police presence. See United
States v. Whitten, 706 F.2d at 1014.
Trooper Hill's knock on the door created the only danger of
destruction of evidence or harm to the police officers. Police
officers may not create exigent circumstances in order to
circumvent the dictates of Payton. In McCraw the trial court
found that there were no exigent circumstances and the appellate
court concurred: "Any risk of destruction of evidence when [the
suspect] retreated into his room was precipitated by the agents
themselves when they knocked on the door." 920 F.2d at 230.
The recent case of United States v. Rivera, 762 F. Supp. 49
(S.D.N.Y. 1991) is relevant to the instant case. Two defendants
were suspected of operating an ongoing drug business out of their
apartment. An undercover agent, posing as a buyer, went into the
apartment to buy drugs and was turned away. While standing in the
doorway, he noticed what appeared to be several crack vials in
the apartment. A second agent gained entrance into the apartment
on the pretext of looking for someone in the apartment complex.
The second agent saw the vials the first agent had told her about
and arrested Rivera and a codefendant. The agents seized two guns
and a tinfoil package in plain view from the living room table. A
search warrant was subsequently obtained and no additional drugs
The defendants' motion to suppress evidence was granted because
the first undercover agent had probable cause to apply for a
warrant after viewing the crack vials. Similarly in Herrold's
case Trooper Hill had probable cause to apply for a warrant after
the drug deal between Herrold and the confidential informant
occurred. As for exigencies, the court found none:
Apparently, Rivera's apartment was a known drug
location, the investigation commenced because of
complaints in the neighborhood, and ongoing drug
activity had no immediate end point. Considering that
this was an ongoing business, conducted over a period
of time, there was no articulable exigency requiring
an immediate arrest.
762 F. Supp. at 52. The search warrant application and affidavit
sworn out by Trooper Hill indicate that Herrold was known to Hill
and several other police officers and confidential informants as
a drug dealer. Trooper Hill testified that he had been trying to
make a buy from Herrold for some time and that he could have
planned for Herrold's arrest. This suggests the sort of "ongoing
activity with no immediate end point" referred to by the court in
Rivera. Therefore, the warrantless arrest may not be upheld on
the grounds that exigent circumstances were present at the time
of Herrold's arrest.
Although Trooper Hill may have obtained a valid warrant after
arresting Herrold and securing his residence, and although the
evidence seized which was "not observed during the initial
entry," Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380,
82 L.Ed.2d 599 (1984), may be admissible, the evidence observed
and seized in plain view during the invalid arrest and security
check must be suppressed.
IV. Conclusions of Law.
1. Based upon the delivery by Herrold of a quantity of
substance field-tested positive for cocaine to a police
informant, the officers had probable cause to arrest Herrold for
the felony offense of delivery of cocaine.
2. Herrold had a protectible expectation of privacy when he
opened the front door of his trailer in response to the knocking
at the door by Trooper Hill.
3. A warrant was necessary to place Herrold under arrest for
delivery of cocaine to the informant when he answered the knock
at the door of his trailer.
4. There were no exigent circumstances which justified the
warrantless arrest of Herrold in his home on August 24, 1990.
5. Herrold did not consent to the entry of Trooper Hill into
6. The warrantless arrest of Herrold in his home without
exigent circumstances violated Herrold's rights under the Fourth
Amendment to the United States Constitution.
7. The police officers could have arrested Herrold immediately
if he had left the trailer. In so doing, they would not have
violated Herrold's Fourth Amendment rights.
8. All items seized in plain view incident to Herrold's
warrantless arrest are subject to suppression from evidence as
fruits of an illegal arrest in his home.
An order was entered on July 3, 1991, granting Herrold's
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