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United States v. Cox

United States District Court, W.D. Texas, San Antonio Division

November 20, 2017

UNITED STATES OF AMERICA,
v.
DAVID COLLINS COX, Defendant.

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         Defendant, David Collins Cox, is charged with being a felon in possession of a firearm in violation of 18 U.S.C. 922. Pending before the Court is Defendant's motion to suppress. Defendant argues that police officers lacked probable to cause to enter his residence without a warrant and no exigent circumstances existed that allowed the officers to enter the residence.

         Background

         On September 26, 2016, at 5:00 p.m., “911” received a call from a person reporting that two males had dragged a female inside a home located at 5714 Ben Casey. The caller reported that the woman was screaming they were going to kill her. The caller also reported that he saw one of the males holding an AR-15 rifle. Police officers responded to the call and went to the location. At 5:29 p.m., a second call to “911” was received. The caller reported that he saw the police officers “knocking” at the house and the caller reported “they” are still inside. The caller again reported one of the males has a rifle. The Incident Detail Report (Government Exhibit 2) reflects that an attempt was made to verify the caller's phone number with no success. At 5:47 p.m., a third call was received by “911” reporting that there were cameras at the location and the individuals inside the home were able to see the officers from inside the location. The officers made no entry into the home that day and no search warrant was sought.

         On September 27, 2016, at 8:42 a.m., “911” received a call stating that a female was “zip tied” in a closet at 5714 Ben Casey. The caller refused to provide his name. Government Exhibit 3.

         During the hearing on the suppression motion, SAPD Officer Robert Aguilar testified that he was not present for any of the September 26 activity. On September 27, Officer Aguilar was on “direct patrol.” While on patrol he became aware that officers were responding to 5714 Ben Casey in response to the 8:42 call. He recognized the address and knew that David Cox lived there. He knew that Cox was suspected of being involved in the burglary of vehicles. En route to serving as backup to the call, he ran a background check and knew that Cox had been charged with being a felon in possession of a weapon. He did not know the disposition of that charge. He noted that calls had been made about the residence the previous day.

         Officer Aguilar testified that because of the nature of the September 27 call, his suspicion that Cox may have been involved in criminal activity, and that an assault weapon may be at the residence, he approached the scene with caution. When Officer Aguilar arrived at the scene, Officer Brooks told him that he saw an individual inside the home. The officers also noted the presence of cameras outside of the home. A knock was made at the door and Cox answered the door. Cox was asked to step outside, asked if anyone else was in the house, and temporarily detained. A second male inside the house was also asked to step outside and detained. One officer remained outside with Cox and the other male.

         Officer Aguilar and another officer entered the residence without a warrant and did a protective sweep of the premises and searched for the woman reported as being “zip tied.” In a laundry room, Officer Brooks saw the barrel of an AR-15 sticking out of a pile of laundry. The laundry was briefly examined to determine if a woman was being hidden there. During the protective sweep/search for the woman, officers saw on the kitchen table screens that monitored the outside cameras and what appeared to be methamphetamine. The officers also saw that trash cans were stuffed with what appeared to be stolen items (purses, etc.). No “zip tied” woman or any other person was found inside the residence. The protective sweep/search for a woman took two to three minutes to complete. Officer Aguilar testified that only rooms, the laundry pile, and closets were searched for the presence of any woman being involuntarily held.

         After the protective sweep/search for a woman was accomplished, the officers exited the residence, called a detective, and a search warrant was obtained. Additional methamphetamine and weapons were discovered during that search.

         Analysis

         Searches and seizures inside a home without a warrant are presumptively unreasonable. Kentucky v. King, 563 U.S. 452, 459 (2011); United States v. Toussaint, 838 F.3d 503, 507 (5th Cir. 2016).

         But the Supreme Court has also “recognized that this presumption may be overcome in some circumstances because ‘[t]he ultimate touchstone of the Fourth Amendment is reasonableness.'” Kentucky v. King, 563 U.S. at 459. One example where the warrant requirement may be excused is the “emergency aid” exception, where officers may enter a home to “render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Id. at 460.

         Defendant argues that this exception should not apply because given the totality of the circumstances, police officers should have done further investigation into the reliability of the 911 calls made on September 26 and 27 prior to making entry. He suggests that interviews should have been done of nearby individuals and neighbors on the early evening of September 26. Defendant further suggests that it was obvious that the caller was inherently untrustworthy and was attempting to set him up. Lastly, Defendant argues that if the exception were to apply in the facts of this case, there would be no limitations to its application.

         In determining whether an officer acted reasonably in an emergency aid case, the Fifth ...


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