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United States v. Gordon

United States District Court, E.D. Michigan, Southern Division

April 23, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
ROBERT DONALD GORDON Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS (DKT. 14)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This case presents the question of whether police violate the Fourth Amendment when they enter and search a hotel room without a warrant based on information that a consenting-age female teenager is in the hotel room with an older man.

         On August 27, 2017, officers from the Southfield Police Department (“SPD”) entered Defendant's hotel room in responding to a report that a 16-year-old girl (“MV-1 [Minor Victim-1]”) was in the room with Defendant, a 45-year-old man. The officers knocked on the door several times, but no one answered. Using a key provided to them by the hotel's front desk clerk, the officers entered the room. They found the Defendant and MV-1 inside and seized electronic devices containing evidence of child pornography that now forms the basis for the underlying charges in this action. Defendant moves to suppress the evidence and the government opposes the motion. For the reasons outlined below, Defendant's motion is GRANTED.

         II. Background

         At around 3:00 a.m. in the morning on August 27, 2016, parents of 16-year-old “MV-1” called 911 to inform officers that they received information their daughter was at the Marvin's Garden Inn in Southfield, Michigan. (“Marvin's Garden” or “the hotel”). Although MV-1 had told her parents that she would be spending the night at a friend's house, the parents told police that their daughter had posted a social media message indicating she was actually at the hotel with a 45-to-50 year old man from Indiana named “Robert.” Dkt. 14, Pg. ID 32.[1] MV-1's parents had never heard of “Robert” and did not know who he was. According to the government, Marvin's Garden Inn is a hotel “well-known to the officers for sex trafficking, drugs, and violence.” Dkt. 17, Pg. ID 62.

         Four Southfield Police Officers met MV-1's parents in the hotel parking lot. Dkt. 14, Pg. ID 41; Dkt. 17, Pg. ID 62, 64. Believing MV-1 was with an unknown older man from Indiana, police officers observed an orange Chevrolet HHR that was parked in the hotel parking lot, which had an Indiana license plate. After running the license plate in their database, the officers learned that the vehicle belonged to the Defendant, Robert Donald Gordon-a white, 45-year-old male from Logansport, Indiana. Dkt. 17, Pg. ID 64. Based on that information, the officers talked to the hotel clerk and learned that Gordon had checked into room #103 earlier that afternoon.

         Using their steel batons, Officers knocked on the door for “five to ten minutes” but no one answered. Dkt. 17, Pg. ID 64; see Dkt. 14, Pg. ID 41. The officers did not knock quietly, but loudly struck the hotel room's steel front door and the room's glass window with their batons. See Dkt. 17, Pg. ID 64. They yelled “Southfield Police” and “Open the door.”

         Getting no answer, the officers went back to the front desk, asked for a room key, and waited for the arrival of their Sergeant. After the Sergeant arrived, they returned to the room and again used their batons to pound on the door while they announced “Police, ” and “Open the door” for a few minutes. When no one answered, they used the key to enter Defendant's room. The officers encountered Defendant sitting on the bed. In response to the officers' questioning, Defendant informed the officers that MV-1 was in the bathroom. Dkt. 14, Pg. ID 42. The officers found and escorted MV-1 out of Defendant's hotel room. Id; see also Dkt. 17, Pg. ID 65. As the officers escorted MV-1 out of the room, MV-1 asked one of the officers to retrieve her boots, as she was barefoot. While kneeling down beside the bed with his flashlight, one of the officers noticed a photograph sticking out of MV-1's bag, showing her posing naked with Defendant, who was also nude.

         While the officers did not arrest Defendant at that time, they did provide him with Miranda warnings. Dkt. 17, Pg. ID 65. Defendant told SPD that he wanted to “cooperate 100 percent.” Id. He allegedly gave law enforcement permission to search the room and all of his belongings. Id. As a result of the search of the room, the officers seized a number of items including a pink and white Samsung phone, a black Samsung phone, a Sony video camera, an iPad tablet, and 3 photographs of MV-1 and the Defendant. Dkt. 14, Pg. ID 42. Defendant provided the passcode to his phone and admitted that the electronic devices probably had naked pictures of MV-1 that she sent to him. Dkt. 17, Pg. ID 66. Officers took the devices and obtained a search warrant the following day. Id. As a result of the search of Defendant's devices, police found several videos of MV-1 and Defendant engaged in sexual acts. Id.

         Defendant was later arrested and charged in a seven-count indictment alleging four counts of production of child pornography, one count of coercion and enticement of a minor, one count of interstate travel with the intent to engage in a sexual act with a minor, and one count of possession of child pornography. See Dkt. 14, Pg. ID 37. Defendant subsequently filed this motion to suppress, challenging the officers' entry and subsequent search of his hotel room and electronic devices, which Defendant argues violated his Fourth Amendment rights. See id.

         III. Standard of Review

         A. Exigent Circumstances Doctrine

         The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause . . . describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend IV. The “chief evil” against which the Fourth Amendment protects is the “physical entry of the home.” Payton v. New York, 445 U.S. 573, 585 (1980). It is a “basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton, 445 at 586 (1980). The Fourth Amendment's full complement of protections also applies to hotel rooms. See United States v. Riley, 858 F.3d 1012, 1018 (6th Cir. 2017) (citing Hoffa v. United States, 385 U.S. 293, 301 (1966)).

         Because the physical entry of the home is the chief evil against which the Fourth Amendment is concerned, a search of a residence or a hotel room conducted without a warrant is per se unreasonable unless the police can show that the search falls within one the carefully defined exceptions to the warrant requirement. See United States v. McClain, 444 F.3d 556, 561 (6th Cir. 2005). Exigent circumstances are among the few “well-defined” and “carefully circumscribed” exceptions to the warrant requirement. See United States v. Williams, 354 F.3d 497, 503 (6th Cir. 2003) (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978)). The government bears a “heavy burden” of proving exigency. McClain, 444 F.3d at 562 (6th Cir. 2005) (internal citations omitted).

         In general, exigent circumstances exist when “‘real immediate and serious consequences' will ‘certainly occur' if a police officer postpones action to obtain a warrant.” Williams, 354 F.3d at 503 (quoting Welsh v. Wisconsin, 466 U.S. 740, 751 (1984)). The Sixth Circuit has identified the emergency situations giving rise to the exigent circumstances exception requirement as: 1) hot pursuit of a fleeing felon, 2) imminent destruction of evidence, 3) the need to prevent a suspect's escape, or 4) a risk of danger to the police or others. Williams, 354 F.3d at 503 (citing United Sates v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994)). In addition to these four categories, the Sixth Circuit has separately recognized as an exigent circumstance a situation in which there is an “ongoing and highly intrusive breach of a neighborhood's peace in the middle of the night.” United States v. Rohrig, 98 F.3d 1506, 1519 (6th Cir. 1996). Finally, the Supreme Court has also found that law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury without violating the Fourth Amendment. See Brigham City v. Stuart, 547 U.S. 398, 403-04 (2006).

         B. Community Caretaking Doctrine

         The “community caretaking” function of police is also recognized as an exception to the warrant requirement for some types of searches. In Cady v. Dombrowski, 412 U.S. 433 (1973), the Supreme Court found a warrantless search of a vehicle trunk to be reasonable where 1) the search was of an automobile, in which there is a lesser expectation of privacy than a home; 2) the police were exercising their “community care-taking function” in a matter “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute, ” id. at 441; and 3) the police were responding to an immediate concern for the safety of the general public, which was endangered by the possibility that an intruder might remove a revolver that was believed to be in the trunk of the car.

         The Sixth Circuit has also recognized the community caretaking exception. See Williams, 354 F.3d at 508 (“[T]he community caretaking function of the police applies only to actions that are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”). The community caretaking function articulated in Cady has most often been applied to the warrantless searches of automobiles. See Taylor v. Michigan Dept. of Natural Resources, 502 F.3d 452, 462 (6th Cir. 2007) (Aldrich, J., dissenting) (citing cases). The Supreme Court has never applied the community caretaking doctrine to allow the warrantless search of a home. Likewise, those circuit courts of appeal considering the question have either expressly disallowed the community caretaking exception in the context of home searches[2] or have only allowed such searches under a traditional or modified exigent circumstances analysis.[3]

         IV. Analysis

         Defendant points out that the officers had neither a warrant nor his consent to enter and search his hotel room. He argues that the officers had no reason to believe a crime was being committed in the hotel room or that any person inside the room was in danger. “Even if the officers believed the two were having consensual sex, ” Defendant contends, “that act does not constitute a crime [because] Michigan's criminal sexual conduct statute establishes the age of consent at 16.” Dkt. 14, Pg. ID 38 (citing Mich. Comp. Laws § 750.520b). After entering his hotel room, Defendant states the officers “made numerous observations, obtained statements, and seized a number of electronic devices and photographs. The officers subsequently obtained a search warrant and searched the electronic devices locating a number of videos that reportedly constituted child pornography.” Dkt. 14, Pg. ID 38. Defendant contends that this evidence should be suppressed as fruit of the illegal entry and search of his room, pursuant to the exclusionary rule. Dkt. 14, Pg. ID 38, 40 (citing While some cases state that the Fifth Circuit has endorsed a community caretaker exception to justify the warrantless search of a home, citing to United States v. York, 895, F.2d 1026 (5th Cir. 1990), a closer reading of the case suggests that the holding is more narrow: the court found that no search took place for purposes of the Fourth Amendment analysis. Id. at 1029-30. It is not clear that governing law in the Fifth Circuit extends Cady to homes. Wong Sun v. United States, 371 U.S. 471, 484 (1963) and Segura v. United States, 468 U.S. 796, 804 (1984)).

         The government recognizes that this case involves the warrantless entry and search of a space protected by the Fourth Amendment. Even so, the government argues that the conduct was justified under two exceptions to the warrant requirement. Moreover, even if the conduct did not fall within either exception and were found in violation of the Fourth Amendment, the government argues that the Court should not apply the exclusionary rule in this context.

         A. Was the Warrantless Entry Justified Under the Exigent Circumstances Exception?

         As stated above, our law recognizes an exception to the warrant requirement that permits the entry and search of a residence in response to exigent circumstances. Such exigent situations include: (1) hot pursuit of a fleeing suspect; (2) imminent destruction of evidence; (3) the need to prevent a suspect's escape; (4) danger to the police or to the public; and (5) the need to assist persons who are seriously injured or threatened with such injury. See, e.g., Johnson v. City of Memphis, 617 F.3d 864, 868 (6th Cir. 2010). The government only argues that the fifth exigency, also framed as the “emergency aid” exigency, applies here; thus, the Court will only address the fifth exigency.

         The Supreme Court recognized the fifth exigency to the warrant requirement in Brigham City v. Stuart, 547 U.S. 398, 403 (2006). In Brigham City, police officers responded to a noise complaint in the early hours of the morning, and when they approached the house, they could hear a fight or altercation taking place inside. Id. at 401. The officers saw minors drinking outside the residence, heard shouting coming from inside, and then saw four adults attempting to restrain a juvenile. Id. They then observed the juvenile punch one of the adults in the face, and saw the victim “spitting blood into a nearby sink.” Id. “The other adults continued to try to restrain the juvenile, pressing him up against a refrigerator with such force that the refrigerator began moving across the floor.” Id. The police entered the home and subsequently arrested one of the adults present for contributing to the delinquency of a minor, disorderly conduct and intoxication.

         The Supreme Court found it “plainly reasonable” for the officers to enter the house and quell the violence, for they had an “objectively reasonable basis for believing that the injured adult might need help and that the violence in the kitchen was just beginning.” Id. In so holding, the Court reiterated its view that the subjective motivation of the officers in entering the home is irrelevant and held that police action is reasonable “regardless of the individual officer's state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.'” Id. at 405 (internal citations omitted) (emphasis in original). The governing principle from Brigham City is clear: “law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Id. at 403.

         The government also points to Michigan v. Fisher, 558 U.S. 45 (2009) to support the application of the emergency aid exigency in this case. In Fisher, police responded to a report of a man “going crazy” and when they approached the house, they observed “a household in considerable chaos: a pickup truck in the driveway with its front smashed, damaged fence posts along the side of the property, and three broken house windows, the glass still on the ground outside. Id. at 45-46. Inside the house, officers could see Fisher “screaming and throwing things” and could see that he had a cut on his hand. Id. The Supreme Court held that an exigency existed: “[i]t would be objectively reasonable to believe that [the defendant's] projectiles might have a human target (perhaps a spouse or a child), or that [the defendant] would hurt himself in the course of his rage.” Id. at 549.

         In both Brigham City and Fisher, the Court found that the officers: 1) responded to a report of a disturbance, 2) encountered a tumultuous situation at the scene, and 3) observed “violent behavior inside” that appeared to create an imminent risk of harm to the subject or others. These factors supported a “straightforward application of the emergency aid exception” in both cases. See Fisher, 558 U.S. at 48.

         Here, the government argues that the circumstances in this case, when viewed objectively, provide a reasonable basis to believe that MV-1 needed emergency assistance. According to the government, SPD was responding to a “threat of danger, and the safety of a child”-a situation that required “immediate government action.” Dkt. 17, Pg. ID 70. The government highlights the fact that MV-1's parents called 911 and that the “police knew ‘Robert' had taken MV-1, without parental permission, to this motel.” Dkt. 17, Pg. ID 77. In its brief, the government further argues:

Particularly when [Defendant] refused to answer the door, and officers heard rustling inside, they had an even greater concern that: (1) this child was in immediate danger; (2) Defendant may be destroying any type of evidence of criminal activity; or (3) Defendant may be planning an escape. The last thing officers would be expected to do in this situation is walk away shrugging their shoulders because no one answered the door.

Dkt. 17, Pg. ID 77.

         Unfortunately for this argument, the testimony at the suppression hearing did not corroborate the government's claims regarding the sound of rustling, or any other sounds or sights suggesting destruction of evidence, escape of the suspect, or immediate danger to MV-1. Officer Christopher Clark and Sergeant Peter Simerley-two SPD officers who responded to the hotel on the night in question-testified that they did not hear anything from inside the room when they knocked on the door. When asked by the government “when you were knocking on the door and announcing that the [SPD] were there did you hear anything inside the room?” Officer Clark testified, “No, I did not.” On cross examination, Officer Clark testified that he heard “nothing whatsoever” when knocking on defendant's hotel room door for about five minutes. Similarly, Sergeant Simerley was asked on cross examination, “But with the knocking and the yelling ‘[SPD]' you heard no movement in that room, right?” he stated, “I did not, no.”

         When questioned what evidence showed that anyone was in danger, Sergeant Simerley stated, “Well, I believe the silence, the lack of occupants not responding to our knocks at the door, for me was - at least lent potential to something may have happened in the room, yes, sir.” When Officer Clark was asked to justify why he was primarily concerned with the well-being of MV-1, he responded, “Because [MV-1's] parents were deathly afraid of what could happen to her and we just - we don't know, you know. She's a juvenile with another - with an older individual that the parents don't know about and they were scared for her safety.” The government also argues that the Marvin's Garden Inn is a “seedy motel” that is “widely known to host drug activity and commercial sex trafficking activity.” Dkt. 17, Pg. IDs 72, 77. Officer Clark testified that Marvin's Garden was not a nice hotel and that he had been dispatched there before for “prostitution, domestics, loud noise, loud parties, [and] evictions.” Similarly, Sergeant Simerley, when asked about the kinds of calls he had answered at the hotel, responded, “Drug, prostitution, crimes of violence are the typical.” The government points to these characteristics to bolster its argument that exigent circumstances justified the officers' warrantless entry into Defendant's hotel room based on a “need to assist persons who are seriously injured or threatened with such injury” according to Brigham City and its progeny.

         To summarize, the government contends that the following evidence presented at the hearing is sufficient to establish exigent circumstances:

• The SPD officers were aware that Marvin's Garden Inn had prior reports of sex trafficking, drug trafficking, domestic disturbances, and violence.
• The officers knocked loudly, using their steel batons, in two separate attempts to get someone to open the hotel room door, but no one answered.
• The parents of MV-1 did not know for certain where MV-1 was, did not know who Robert-the 45-year-old man from Indiana-was, and were extremely concerned ...

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