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November 5, 1993


The opinion of the court was delivered by: SYLVIA H. RAMBO

 Before the court is the motion to suppress evidence consisting of a sawed-off shotgun, ammunition, and knife seized in the course of the warrantless arrest of Defendant in his home. On October 8, 1993, a suppression hearing was held before this court, at which one of the three arresting officers testified to the events leading up to the officers' entry into Defendants' apartment. Pursuant to the order of the court issued the same day, the parties have filed proposed findings of fact and conclusions of law. From those submissions and the testimony elicited at the suppression hearing it appears that the following facts are not in dispute.

 Three officers responded to the maintenance supervisor's call; one officer, Philip Hetrick, held a conversation with the maintenance supervisor about Defendant's actions, after which all three officers entered the complex and went directly to Defendant's fourth-floor apartment. Upon arriving at the apartment, the officers observed that Defendant was inside his apartment with the door open. From the hallway Officer Hetrick was able to observe that Defendant was still yelling in Spanish and that his penis remained exposed. Without requesting Defendant's permission to enter or addressing him in any way, and without a search warrant or an arrest warrant, Officer Hetrick entered the apartment to arrest Defendant for public lewdness. Officer Hetrick removed the knife *fn1" from the sheath on Defendant's belt and then looked down and observed a sawed-off shotgun on a chair. *fn2" Defendant was placed under arrest at approximately 8:15 a.m. for the offense of public lewdness, which is a misdemeanor of the third degree punishable by a maximum of one year in prison. The justification cited for the arrest was the information received from the maintenance supervisor that Defendant had walked in a public place with his penis exposed. On September 30, 1993, Defendant was indicted for one count of possession of a firearm by a convicted felon, one count of possession of a sawed-off shotgun, and one count of possession of ammunition by a convicted felon. Defendant responded to the indictment with the instant motion to suppress.

 The government claims that two types of exigent circumstances were present to justify the officers' warrantless entry and arrest of Defendant. First, the government argues, the door to Defendant's apartment was open and from the hallway, a public space, the police officers could view Defendant inside his apartment with his penis exposed. Viewing that crime in progress, the government argues, it was entitled to enter to make the arrest and to perform a protective sweep of the area. Second, the government argues that Defendant's behavior outside and inside his apartment suggested that he was in need of immediate aid, which justified the officers' entry into the apartment and seizure of any evidence in plain view.

 The court is troubled by this case. The possession of a sawed-off shotgun by a convicted felon, particularly one behaving so obviously erratically, is a serious matter. The court, however, also views the warrantless entry into an individual's home as a serious matter. There is no question that the Fourth Amendment distinguishes sharply between warrantless arrest for crimes committed in a public place in view of an officer, which are generally permissible, and warrantless arrest in the home. The United States Supreme Court has stated that "it is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972)). Accordingly, a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. Welsh v. Wisconsin, 466 U.S. at 748 (citation omitted). The Supreme Court has explained the rationale for a warrant requirement in the context of a home search in the clearest of terms:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support for the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime . . . . The right of officers to thrust themselves into a home is . . . a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

 Johnson v. United States, 333 U.S. 10, 13-14, 92 L. Ed. 436, 68 S. Ct. 367 (1948) quoted in Welsh v. Wisconsin, 466 U.S. at 748-49 n.10. Thus, warrantless entries by government agents into individuals' homes for the purpose of search or arrest are presumptively unreasonable. United States v. Acosta, 965 F.2d 1248, 1251 (3d Cir. 1992).

 There are exceptions to the Fourth Amendment requirement for a warrant. If the Government seeks to rely on the exception commonly known as "exigent circumstances," it bears the burden of establishing by a preponderance of the evidence that its entry into Defendant's apartment was justified by such circumstances. See Payton v. New York, 445 U.S. 573, 590, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); United States v. Kane, 637 F.2d 974, 979 (3d Cir. 1981). In the context of a warrantless entry into an individual's home to make an arrest, "exigent circumstances" apply only to cases in which "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 (6th Cir. 1984), cert denied, 471 U.S. 1061, 85 L. Ed. 2d 490, 105 S. Ct. 2126 (1985). Recognized exigent circumstances include hot pursuit of a suspect into his home, the risk of destruction of evidence, potential escape of suspects, and threats of physical harm to law enforcement officers or other innocent individuals. See United States v. Velasquez, 626 F.2d 314, 317 (3d Cir. 1980).

 In deciding this matter, this court must be guided by the United States Supreme Court's decision in Welsh v. Wisconsin, supra, where the Court specifically addressed the question of when exigent circumstances would justify the entry of a government agent into a person's home for a non-felony offense. There, a witness observed the defendant driving erratically, swerving off the road, and finally bringing his car to a stop in an open field. No damage to any person or property had occurred. Welsh v. Wisconsin, 466 U.S. at 742. The witness blocked the defendant's car and asked another passerby to contact the police but the defendant left his vehicle and walked home before the police arrived. After the police arrived they checked the vehicle's registration and learned that it belonged to the defendant, and then proceeded to his nearby home. Without securing a warrant, the police entered the defendant's home, presumably without consent, see id. at 743 & n.1, arrested him for operating his vehicle under the influence of an intoxicant, and took him to the police station. Because the defendant refused to take a breath-analysis test, he was subjected to penalties in addition to those imposed for the driving offense. Ultimately, the state supreme court held that the defendant's arrest did not violate the Fourth Amendment because the officers had probable cause to arrest him and the following exigent circumstances justified their entry into his home to do so: the need for "hot pursuit" of a suspect; the need to prevent physical harm to the offender and the public; and the need to prevent destruction of evidence. Id. at 747-48 & n.9.

 The United States Supreme Court noted first its holding in Payton v. New York, supra, that warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. Recognizing that it had declined to consider in Payton v. New York the scope of exigent circumstances that might justify warrantless home arrests, the Welsh Court noted nonetheless that in prior decisions the Court had emphasized that exceptions to the warrant requirement were "'few in number and carefully delineated, [and the] police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.'" Welsh v. Wisconsin, 466 U.S. 740 at 749-750, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (citation omitted). Moreover, up to that point, of the limited exigent circumstances recognized, only the "hot pursuit" doctrine had been applied to arrests in the home. Id. at 750 (citation omitted). Significantly, the Welsh Court stated:

Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries . . . . When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

 * * *

It is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor . . . . An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, see Payton, application of the exigent circumstances exception in the context ...

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