United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO SUPPRESS
R. UNDERHILL UNITED STATES DISTRICT JUDGE.
evening on April 13, 2016, several Bridgeport police officers
breached the apartment where Shannon Calhoun was staying
without first obtaining a warrant. They assert that their
otherwise unlawful entry was justified by exigent
circumstances. While in the apartment, officers identified
various items of contraband, including a gun, a large amount
of cash, and a baggie of what appeared to be
cocaine. The officers arrested Calhoun and later
obtained a search warrant for the apartment on the basis of,
inter alia, the contraband they had identified. A
subsequent search pursuant to the warrant uncovered several
firearms, ammunition, quantities of various controlled
substances, and other indicia that Calhoun was involved in
the drug trade. On the basis of that evidence, Calhoun was
indicted for possession with intent to distribute cocaine
base and MDMA in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(iii); possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c); and unlawful possession of a firearm by
a felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Calhoun moved to suppress the government's
evidence against him. (doc. 31) A suppression hearing was
held on February 7, 2017, and the parties submitted
post-hearing briefs thereafter.
on my findings of fact, set forth below, Calhoun's Fourth
Amendment rights were violated when the police entered the
apartment where he was staying without a warrant, and were
further violated when they exceeded even the scope of the
warrant exception they assert should have applied. Calhoun is
therefore entitled to a suppression of the evidence found as
a result of the warrantless search, and his motion is
Burden of Proof
burden of production and persuasion generally rest upon the
movant in a suppression hearing.” United States v.
Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (collecting
cases). “In a motion to suppress physical evidence, the
burden of proof is initially on the defendant. Once the
defendant has established some factual basis for the motion,
the burden shifts to the government to show that the search
was lawful.” United States v. O'Neill,
2016 WL 6802644, at *8 (W.D.N.Y. Nov. 17, 2016) (citation
omitted). “The standard of proof on the party who
carries the burden is preponderance of the evidence.”
Id. Accordingly, the government has the burden to
show that exigent circumstances justified the initial entry
and search. See United States v. Lopez, 723 F.Supp.
229, 234 (S.D.N.Y. 1989).
Findings of Fact
10:16 p.m. on April 13, 2016, two people called 911
to report shots fired in the vicinity of a CVS Pharmacy in
Bridgeport, CT. Recording of 911 Calls, (Gov't Ex. 2).
The second caller also stated that a man had threatened a
woman in the parking lot, and had broken the window of her
car using a gun. The second caller asserted that she fled
after the assault took place and she heard shots fired in the
area behind her. She described the aggressor as a stocky
black man in dark clothing, and stated that after he broke
the car window he drove away in a black BMW. (Gov't Exs.
2, 49) Around the same time, an off-duty police officer who
lived in the area called the Bridgeport Police Department to
report that she heard shots fired and then saw a black
sports-utility vehicle drive quickly away from the area.
(Gov't Ex. 49); see also (Azevedo Test.). When
an officer arrived at the CVS shortly thereafter, the owner
of the car that had been attacked identified the aggressor as
Shannon Calhoun, and provided the officer with the license
plate number for his car as well as Calhoun's address, 49
Ridgewood Place, which was approximately one block away.
(Gov't Exs. 52, 53, and 54); see also (Martinez
Test.). The car was also registered at 49 Ridgewood
Place. None of the people interviewed at the CVS
indicated that Calhoun had been shot or was otherwise
seriously injured, beyond the potential injuries to his hand
sustained as a result of punching through a car window.
See (Gov't Exs. 53 and 54).
Diaz and Ortiz arrived at 49 Ridgewood Place approximately
five minutes after the initial calls. See
Recording of Police Channel One (Gov't Ex. 1); Police
Incident Report (Gov't Ex. 49). A black BMW sedan was
located outside of 49 Ridgewood Place (Gov't Ex. 6),
an officer confirmed that the hood of the car was warm,
indicating that the car had recently been driven,
see (Gov't Ex. 1). A few minutes after locating
the car, officers at the scene also identified a small amount
of blood in the front portion of the driver's seat of the
car, on the console, and on the gear shift. See
(Gov't Exs. 7 and 8) (depicting a small amount of what
appears to be blood on the gear shift, console, and
driver's seat); see also (Gov't Ex. 49)
(indicating a report of “fresh blood in front seat of
[the BMW]”). Specifically, the officer who first
reported seeing blood in the car over Channel One stated that
there was “not a lot, only a couple of drops.”
(Gov't Ex. 1) Shortly thereafter, an officer stated that
it was “definitely the suspect's vehicle.”
Id. An officer then identified Shannon Calhoun as
“the suspect” over Channel One. Id.
Blackwell responded to the call of shots fired, and arrived
at 49 Ridgewood Place shortly thereafter. He was informed by
officers already at the scene about the incident at the CVS
involving the black BMW parked outside of the residence.
(Blackwell Test.) He observed a few drops of what appeared to
him to be “fresh blood” in the front seat of the
car. Id. Blackwell and the other officers at the
scene spent approximately fifteen minutes searching the area
for shell casings. See (Gov't Ex. 49);
(Blackwell Test.). None were found; however, in the course of
that search, the officers discovered a single drop of what
appeared to be fresh blood on the sidewalk approximately
seven feet from the car, and three additional drops of blood
on the porch outside the door of 49 Ridgewood Place.
See (Gov't Exs. 11-13) (depicting drops of blood
on sidewalk and porch). There was also a small amount of
blood on the door handle and screen door of the residence.
(Blackwell Test.); (Borona Test.) (describing the blood as a
“smudge”). Blackwell saw a light on in the second
floor of the residence. He pounded on the door and announced
the police presence for approximately five minutes, receiving
no response. Neither Blackwell nor any other officer appears
to have heard any noises from the residence or seen any
indication of property damage or disruption other than the
few small spots of blood.
Borona also responded to the shots fired call. (Borona Test.)
He initially went to the CVS, and arrived at 49 Ridgewood
Place while Blackwell was pounding on the door of the
residence. Id. Borona viewed the drops of blood
inside the car and on the sidewalk, and then asked his
sergeant for permission to breach the
residence. Specifically, he stated that there was
blood leading from the BMW to the residence, a possible
injured party inside, and he thought that he had
“exigency.” See (Gov't Ex. 1). He
breached the door and entered with a canine unit, followed by
Blackwell. (Blackwell Test.) Borona commanded any
people in the residence to come out with their hands
(Borona Test.) Calhoun came out into the main hallway of the
apartment with his hands up and was forced to the ground.
See (Blackwell Test.); (Borona Test.) He had a
bloody cut on his finger. Blackwell detained Calhoun with
handcuffs and conducted a pat-down of Calhoun's person.
(Blackwell Test.) The Incident Log indicates that Calhoun was
arrested at or around 10:38 p.m., approximately two minutes
after the breach and 20 minutes after the initial report of
shots fired. See (Gov't Ex. 49); (Borona Test.)
(confirming that approximate timing).
officers then conducted a protective sweep of the residence.
The government witnesses provided conflicting testimony
regarding the precise sequence of that sweep. Both Blackwell
and Borona stated that they observed additional blood on the
floor of the bathroom. Blackwell asserted that he looked past
the door of the front bedroom to assess whether any threats
or people needing assistance were present, and observed a
large amount of money and what appeared to be a small bag of
narcotics on the bed. (Blackwell Test.)
also asserted that he conducted a protective sweep of the
front bedroom, and stated that in the course of his sweep he
saw “packaging material” on the bed. Borona
subsequently clarified that “packaging material”
referred to narcotics. (Borona Test.) He did not recall
seeing Blackwell do a sweep of the front bedroom. Borona
initially testified that he did not enter any of the other
rooms because at that point he knew no one else was in the
apartment. Sergeant Amato, however, testified that Borona was
in the kitchen apparently after the scene had been secured.
(Amato Test.) And when Borona was confronted with his
inconsistent previous statement to the government that he had
also seen a firearm with what appeared to be blood on it on
the floor of a closet in the back bedroom, see
(Gov't Exs. 26 and 28) (depicting gun in closet), Borona
explained that he had seen that weapon during “a
walk-through” conducted “after the scene had
been secured.” (Borona Test.) Borona then
explained that the weapon had been identified by other,
unidentified officers during the initial protective sweep.
Detective Martinez similarly testified that he was called to
the residence because officers had located a firearm, and
that he was called to the scene to conduct a walk-through
after the need for a protective sweep had ended in order to
prepare a search warrant affidavit. (Martinez Test.) The gun
that Martinez testified to having seen in the closet did not
have blood on it. Id. He also testified that during
the subsequent search conducted after the officers obtained a
warrant, a different gun with blood residue on it was found,
but he asserted that gun could not have been found in plain
Amato, a Gang Intelligence Sergeant who worked as a liaison
to the State Police, heard the shots-fired call while doing
unrelated paperwork. (Amato Test.) Amato testified that he
decided to respond to the scene after hearing that Calhoun
had been identified as the “suspect” because
Amato had had extensive previous dealings with Calhoun and
thought he could offer assistance in identifying Calhoun if
needed. Amato arrived after the scene was secured.
See (Gov't Ex. 49) He testified that he saw
Borona and Blackwell in the kitchen supervising Calhoun, who
was in handcuffs. (Amato Test.) Amato also entered the front
bedroom and saw narcotics and money on the bed, although he
did not suggest that observation was made in the course of a
protective sweep. Amato testified that he commented to
Calhoun that it was “amazing that a domestic finally
caught him, ” and then left the premises because it was
“not his case.”
at the conclusion of the protective sweep, Borona reported
over Channel One that Calhoun was in custody. (Gov't Ex.
1) A person who appears to be the dispatcher stated that
medics were available, and on that suggestion, Borona asked
that medics be directed to the residence, although he asked
for them to “hold off” briefly. Id.
Borona further reported that Calhoun was “all
bloody” and that “narcotics and cash” had
been seen in the residence. Id. Neither Borona nor
any other officer reported seeing a gun over Channel One.
the testifying officers (Blackwell, Borona, Martinez, or
Amato) served as an affiant for the search warrant affidavit,
although Martinez testified that he reviewed and approved it.
The warrant affidavit has both small and larger differences
from the officers' testimony at the hearing. See
Warrant Aff., (Gov't Ex. 51) at 2-4. Most notably, it
states that “the State Police Troop G reported that
they received a call of a person shot at 49 Ridgewood Place,
” id. at ¶3, which call is also noted in
the Police Incident Report, (Gov't Ex. 49); however,
neither the Channel One recording nor any of the testifying
officers indicated that report was relied on to assess the
situation at 49 Ridgewood Place. The warrant affidavit also
asserts that officers at the scene described “a heavy
odor of marijuana” after they breached the door, which
none of the testifying officers described at the hearing.
Warrant Aff. at ¶ 7. With respect to the contraband
identified in the course of the protective sweep, the warrant
affidavit lists a “black handgun with blood on it,
” that was allegedly observed in an open closet, as
well as cash and a clear plastic bag with what appears to be
cocaine in it. Id. On the basis of that affidavit,
the police obtained a search warrant and found at the
residence the considerable additional contraband that forms
the basis of the instant charges.
Scene Reports submitted on April 20, 2016 also stated that
“a black handgun with blood on it” or a
“gun” was found during a protective sweep.
See Crime Scene Report Narrative at 1-2, (Gov't
Ex. 51). One of those reports states all of the contraband on
the floor of the closet, including the visible gun, was
“found by Detective Martinez, ” whom I note did
not testify to his involvement in any protective sweep.
Id. at 7. It is unclear from the report when that
discovery is asserted to have taken place. Id.
challenges the government's evidence on three primary
grounds: first, the officers' entrance into the residence
was not justified by the exigent circumstances exception to
the Fourth Amendment's warrant requirement, which the
parties agree is the only exception that potentially applied;
second, if the officers were lawfully on the premises, their
search nevertheless exceeded the scope of a permissible
protective sweep under Maryland v. Buie, 494 U.S.
325 (1990); and third, that the contraband items described in
the warrant affidavit were not found pursuant to the plain
view doctrine. The government disagrees with Calhoun's
factual contentions, and further asserts that even if the
initial entrance of the officers was improper, any Fourth
Amendment violation was cured by the inevitable discovery
doctrine. Finally, the government contends that the good
faith exception to the exclusionary rule applies.
reasons discussed below, I determine that the officers'
entry was not justified by emergency circumstances. Taking
the government's position here would result in a rule
that allowed law enforcement to enter the residence of
practically any person suspected of a gun-related crime,
regardless of whether that person was believed to be injured.
And while that rule might increase the effectiveness of law
enforcement, it is simply not permitted under the
Constitution. Moreover, there are strong indications that the
Bridgeport Police Department blithely exceeded the
permissible scope of a protective sweep in order to find
additional evidence in this case, and, more troublingly, the
Bridgeport Police Department may have a practice of doing so.
warrantless entry into a home is presumptively unreasonable
under the Fourth Amendment. See Welsh v. Wisconsin,
466 U.S. 740, 749 (1984); Payton v. New York, 445
U.S. 573, 586 (1980). An arrest within the home is
“simply too substantial an invasion to allow without a
warrant, at least in the absence of exigent circumstances . .
. even when probable cause is clearly present.”
Payton, 445 U.S. at 589. The government claims that
the warrantless entry in this case was justified by exigent
circumstances. The parties agree that the relevant exigency
is described by the “emergency aid” doctrine,
which has been articulated by the Supreme Court as follows:
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. This
“emergency aid exception” does not depend on the
officers' subjective intent or the seriousness of any
crime they are investigating when the emergency arises. It
requires only an objectively reasonable basis for believing
that a person within the house is in need of immediate aid.
Michigan v. Fisher, 558 U.S. 45, 47 (2009) (internal
citations omitted) (quoting, inter alia, Brigham
City v. Stuart, 547 U.S. 398 (2006)). Thus, the defining
characteristic of the emergency aid doctrine is the
officer's reasonable belief in an “urgent need to
render aid or take action.”Anthony v. City of New
York, 339 F.3d 129, 135 (2d Cir. 2003) (internal
quotation and citation omitted). The reasonableness of an
officer's belief that the situation was sufficiently
urgent “must be assessed in light of the particular
circumstances confronting the officer at the time.”
Kerman v. City of New York,261 F.3d ...