10th Circuit Reverses Denial of Suppression Motion; Remands for Consideration of Exigency Doctrine

U.S. v. Walker, --- F.3d ----, 2007 WL 259661 (10th Cir. Jan. 31, 2007)

In the early afternoon a Roosevelt County sheriff’s officer was dispatched to an address on a state road where about 10 minutes earlier a caller said she saw two men with guns threatening to kill each other. When the officer located the address, he called the station and learned that the adult son of the home’s owner was at the sheriff’s office talking to another officer, but was unable to find out if the son said anything about anyone being armed.

The officer then knocked on the closed storm door and announced himself and when there was no response, opened it and knocked on the slightly ajar inner door, again announcing himself. After some moments, a voice from inside said “Yeah, and I got a goddamned gun.” Police entered, ordered the speaker–D--out with his hands up, cuffed him and put him on the front porch (but did not arrest him), and then conducted a sweep the house. During the sweep they found guns and ammo and D was charged with felon in possession.

The 10th upheld the district court’s finding no 4A violation for opening the storm door to knock on the inner door, and no violation in police entering the home because it was supported by exigent circumstances–D’s statement about having a gun was made in a threatening manner.

The 10th sent the case back for the district court to determine whether exigent circumstances justified the sweep, under United States v. Najar, 451 F.3d 710 (10th Cir.2006), as it relates to victim safety (i.e., the other person the caller said was present when the two men were threatening each other). The sweep was not justified as incident to arrest under Buie, since there was no arrest, and could not therefore be justified for officer safety reasons.