Peters v. State

EYLER, DEBORAH S., J. The primary issue in this appeal is whether the police had probable cause to search an apartment in a multi-unit apartment building to apprehend suspects in a shooting incident. In the Circuit Court for Baltimore City, Mark Peters, the appellant, was indicted for attempted murder and numerous other crimes stemming from that incident. Before trial, he moved to suppress tangible evidence recovered in the search of the apartment, which was carried out without a warrant. The court denied the motion on the ground that exigent circumstances justified the warrantless search and, even if it did not, the inevitable discovery doctrine applied.

A jury convicted Peters of first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, wearing, carrying, and transporting a handgun, attempted robbery with a dangerous weapon, and possession of a regulated firearm by a disqualified person. He was sentenced to an aggregate term of 25 years’ imprisonment. On appeal, Peters presents three questions for review, which we have reordered and rephrased: I. Did the circuit court err in denying his motion to suppress tangible evidence?

II

Was the evidence legally sufficient to sustain his conviction for attempted robbery with a dangerous weapon?

III

Did the circuit court err in failing to dismiss for lack of a speedy trial? ³¹⁸ We hold that the circuit court erred in denying the motion to suppress, and therefore shall reverse the judgments of conviction. We find no merit in Peters’s other issues. Accordingly, we shall remand the case to the circuit court for further proceedings.

I

(A) The charges against Peters all concerned the non-fatal shooting of Vaughn Johnson, on January 27, 2012. Peters filed a pre-trial motion to suppress from evidence two handguns and a ski mask the police recovered from 5933 Radecke Avenue, Apartment J. He argued that the items were obtained by the police in a warrantless search in violation of the Fourth Amendment. The suppression hearing was held on the day of trial. It was interrupted by hearings on other motions in the case and by jury selection and was completed on the second day of trial.

Officer Bryan Loiero and Sergeant Lamont Davis of the Baltimore City Police Department (“BPD”) testified for the State. Officer Zachary Wein, also with the BPD, in its SWAT Unit, was called by the defense. By agreement, the transcript of a recorded statement by Janee Gross, Johnson’s girlfriend, was admitted into evidence. The defense introduced into evidence an “Incident Case Folder” prepared by Sergeant Davis and a search and seizure warrant for Apartment J, including the warrant application.

The evidence at the suppression hearing showed the following. On the night in question at 8:55 p.m., Officer Loiero was on routine patrol when a call went out for a possible shooting in progress at 5925 Radecke Avenue. That address is one of several apartment buildings that make up the Garden Village apartment complex, in Baltimore City. Officer Loiero was a block away and arrived at the scene in less than a minute.

He entered building 5925 and found Johnson lying on the floor next to the door to his apartment, bleeding from two gunshot wounds to his torso. ³¹⁹ Officer Loiero called for an ambulance, quickly determined that no one was inside Johnson’s apartment, and asked Johnson who had shot him. Johnson replied that the shooter was a man he did not know who “was with Ty, he was with Ty.” He described the shooter as light-skinned, with a mustache, wearing a dark jacket and carrying two guns. He told Officer Loiero that Ty lived “somewhere on St. Regis,” a street the officer knew to be a block north of the apartment complex. After radioing that information to the dispatcher, Officer Loiero spoke with Janee Gross, who was in the building.

She had visited Johnson that night in his apartment. When she was ready to leave, he walked her to her car, which was in the parking area in front of his apartment building, and returned to his apartment. She sat in her car, waiting for it to warm up. Suddenly she saw two men dressed in black and wearing black face masks running away from Johnson’s apartment building and into one of two other apartment buildings in the complex.

She called Johnson, who did not answer his cell phone. She entered his apartment building and found him right after he had been shot. 1 Gross pointed out for Officer Loiero the buildings she saw the two men enter. They were buildings 5931 and 5933 Radecke Avenue. She did not know which of the two buildings the men had entered.

She did not see any guns. Numerous police units converged on the apartment complex, and Officer Loiero called for additional units to respond to the 5931 and 5933 buildings because “apparently the suspects had ran into that location.” From past experience, Officer Loiero knew that each apartment building in the complex was two stories with a single front door for ingress and egress. He directed all responding officers to form an “inner perimeter” around both buildings, and not to allow ³²⁰ anyone to enter or exit either building. According to Officer Loiero, the “inner perimeter” was in place within a matter of minutes after he arrived at the crime scene.

At about 9:15 p.m., a SWAT team arrived and began an apartment-by-apartment search, first of building 5931 and then of building 5933. Each building had twelve apartments, designated A through L. The SWAT team took the same approach at every apartment. A SWAT team member holding a handgun and a ballistic shield, known as a “bunker,” knocked on the door, announcing police presence. If there was a response, the team member directed the occupant(s) to exit.

If there was no response to repeated knocking, the SWAT team used a battering ram to force open the door. In both situations, the SWAT team members swept the apartment, looking for any occupants (or additional occupants), and if any were found ordered them out. Another SWAT team member, called the “hands man,” obtained the occupants’ names and information. After being interviewed by the “hands man,” occupants were escorted to buses that had been brought in, where they were questioned and directed to wait until the entire search operation had been completed.

In entering and searching each apartment, the SWAT team was looking for an occupant named “Ty.” The team’s apartment-by-apartment search of building 5931 did not reveal any apartment occupant by that name. The team moved on to building 5933. The team members searched Apartments A through I in that building without finding an occupant named “Ty.” At 2:00 a.m., the SWAT team reached Apartment J. Officer Wein knocked on the door. He was holding his handgun and bunker.

A man answered the door; two other men were with him. The men were ordered to show their hands and exit the apartment. The “hands man” spoke to them and learned that their names were Tyreze Braxton, Tyrell Braxton, and Mark Peters (the appellant). They were handcuffed.

Officer Wein, followed by other SWAT team members, entered Apartment J and proceeded to clear it, “making sure ³²¹ there was nobody else that wasn’t at the front door, that may have been armed or dangerous in that location.” Officer Wein entered the bathroom and pulled back the shower curtain. He testified that, as he did so, his bunker hit a grate covering a vent on the shower wall, knocking the grate to the floor. After determining that the bathroom was clear, he cleared the rest of the apartment, finding no other occupants. He returned to the bathroom to place the grate back over the vent.

He noticed a black object inside the vent that looked like a T-shirt or a hat. There appeared to be objects inside it, but he could not see what they were. Officer Wein did not touch anything in the vent. He notified his superior officer about his discovery.

Sergeant Davis had taken charge of the crime scene shortly after Officer Loiero called for units to form a perimeter around buildings 5931 and 5933. At around 3:15 a.m., Sergeant Davis was notified that the SWAT team had found a person named “Ty” in Apartment J of the 5933 building. Sergeant Davis went to that apartment. One of the SWAT team members told him there was something in the vent in the bathroom.

Sergeant Davis looked inside the bathroom vent and saw what “looked like a black towel or something, it was bulky.” He “removed it and it was a ski mask and inside the ski mask were two handguns.” He “folded it back, ... placed it back inside the vent.” Although Sergeant Davis clearly testified on direct and cross-examination that he could not see what was inside the “bulky” towel-like item in the vent until he removed it from the vent, his testimony changed somewhat when the court pressed him as to why he did not obtain a search warrant before seizing the items from the vent. He claimed that when he looked in the vent he could see “what looked to be the handle of a gun wrapped up in what I believed was a towel,” but he was “[n]ot 100 percent” certain that he could identify the object as a gun and that was why he removed the entire thing from the vent. 2 ³²² While another officer secured Apartment J, Sergeant Davis prepared an application for a search and seizure warrant for that apartment. His affidavit in support of the warrant application reads, in pertinent part: As other patrol officers arrived at the scene they were advised by concerned citizens that approximately 2-3 unidentified black males fled from the location of 5925 Radecke Avenue where the Attempted Murder of Mr. Vaughn Johnson occurred and ran into the apartment building of 5933 Radecke Avenue.[ 3 ] Northeast District Patrol officers began to set up a perimeter due to the fact that there were no rear exits from the apartment building. The Baltimore City Police Departments [sic] SWAT Team was contacted and dispatched to the area at which time a command post was assumed.

The Baltimore City Police Department’s SWAT Team began to conduct an orderly and methodical security search of each apartment within the building of 5933 Radecke Avenue for the safety of the residents within.[ 4 ] Upon reaching 5933 Radecke Avenue Apartment J., the Baltimore City Police Department’s SWAT Team accosted three unidentified black males within the apartment. While clearing the apartment, the SWAT Team noticed an open air vent within the bathroom without the cover attached to it. For Officer Safety issues the SWAT Team observed the butt of what they believed to be a handgun.[ 5 ] At that point the Baltimore City Swat [sic] Team secured the unidentified ³²³ males along with the apartment of 5933 Radecke Avenue Apartment J for the purposes of obtaining a Search & Seizure warrant to recover any and all ballistic evidence that may be related to the Attempted Murder of Mr. Vaughn Johnson and the fruits of any other crime. According to Sergeant Davis, at about 8:30 a.m., the police reentered Apartment J to execute the warrant; and they left at around 9:30 a.m.

He acknowledged that the crime lab report shows that the two guns were removed from Apartment J at 8:17 a.m. Sergeant Davis maintained that the guns only were removed after the warrant issued, and pointed out that the return for the warrant shows that it was executed at 10:00 a.m. The circuit court denied Peter’s motion to suppress. It ruled that the warrantless search of Apartment J of building 5933 was justified by exigent circumstances and, even if it was not, the guns and ski mask were admissible under the inevitable discovery doctrine: The police arrived moments after a shooting.

There was ... two bullet holes in the victim, so they knew that it was a gun. Ms. Gross reports that she saw two people run into either 5933, 5931. SWAT is called almost immediately. The building—the two buildings are secured.

There’s a systematic search of the apartments. I’m satisfied that these are exigent circumstances which would permit the entry into Apartment J. Once inside the apartment, Officer Wein testifies that a vent falls open. He sees what appears to him as a black material, which is a small enough place to hide guns. And I am satisfied that he would have had a sufficient exigency at that time to search the vent.

But even if he—when he did not search the vent, eventually it was searched. And even if there was not a sufficient exigency, I find that since the search warrant was obtained soon after that, that the State had ... used proper and predictable investigatory procedures and that those procedures would have inevitably have resulted in the discovery of the evidence in question. ³²⁴ There was no testimony at the suppression hearing about the connection, if any, the two “Tys” and Peters had to Apartment J. At one point the prosecutor attempted to elicit evidence about Peters’s address. The court interrupted, saying that the State had waived its right to challenge standing. 6 The prosecutor did not proffer what the evidence would have shown. The evidence on this point was adduced on the second day of trial (which was the first day testimony was taken) and was not disputed.

We add it for the sake of completeness, and also because it is evidence the court should not have disallowed. Apartment J in building 5933 was leased by Tyreze Braxton, who lived there alone. 7 Tyrell Braxton, his twin brother, was living on St. Regis Avenue. On the evening in question, soon after Tyreze got home from a work event, Tyrell and Peters arrived at his apartment. The Braxton twins had known Peters for many years, as they had mutual relatives.

After awhile, Tyrell asked Tyreze if he would drive them to their aunt’s house. Tyreze agreed, but discovered that the police had surrounded the building and would not let anyone leave. The men remained in Tyreze’s apartment. They fell asleep and later were awoken by the SWAT team.

Tyrell and Peters were charged with crimes arising out of the shooting of Johnson. The charges against Tyrell were nol prossed. Tyreze was not charged with any crime. (B) Peters contends the circuit court erred by denying his motion to suppress because there was no exigency to justify ³²⁵ the police entering Apartment J without a warrant to search for the suspects in the Vaughn Johnson shooting.

The well-established standard of review is as follows: “In reviewing a circuit court’s grant or denial of a motion to suppress evidence, we ordinarily consider only the evidence contained in the record of the suppression hearing. The factual findings of the suppression court and its conclusions regarding the credibility of testimony are accepted unless clearly erroneous. We review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party. We undertake our own constitutional appraisal of the record by reviewing the law and applying it to the facts of the present case.” McFarlin v. State, 409 Md. 391, 403 , 975 A.2d 862 (2009) (quoting Rush v. State, 403 Md. 68, 82-83 , 939 A.2d 689 (2008) (citations and footnote omitted)). “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home -without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980) (citation omitted).

See also Brigham City v. Stuart, 547 U.S. 398, 403 , 126 S.Ct. 1943 , 164 L.Ed.2d 650 (2006). As the Supreme Court has explained: “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton, at 590, 100 S.Ct. 1371 . See also Kentucky v. King, 563 U.S. 452 , 131 S.Ct. 1849, 1856 , 179 L.Ed.2d 865 (2011) (stating that a search of a home without a warrant may be justified when “ ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment’ ” (quoting Mincey v. Arizona, 437 U.S. 385, 394 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978))).

The exigent circumstances exception to the warrant requirement “is a narrow one[,]” Williams v. State, 372 Md. 386, 402 , 813 A.2d 231 (2002) (citations omitted), and the State bears a “ ‘heavy burden,’ ” id. at 407 , 813 A.2d 231 (citation ³²⁶ omitted), of proving “ ‘specific and articulable facts to justify the finding of exigent circumstances.’ ” Id. (quoting United States v. Shephard, 21 F.3d 933, 938 (9th Cir.1994)). Its burden “may not be satisfied ‘by leading a court to speculate about what may or might have been the circumstances.’ ” Id. (quoting United States v. Driver, 776 F.2d 807, 810 (9th Cir.1985)).

The facts are to be considered as they appeared to the police officers at the time of the warrantless entry. Id. at 403, 813 A.2d 231 . The extent of the warrantless entry is “ ‘strictly circumscribed by the exigencies which justify its initiation.’ ” Mincey, 437 U.S. at 393 , 98 S.Ct. 2408 (quoting Terry v. Ohio, 392 U.S. 1, 25-26 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)). The two most common exigent circumstances are hot pursuit of a fleeing felon, see, e.g., United States v. Santana, 427 U.S. 38, 42-43 , 96 S.Ct. 2406 , 49 L.Ed.2d 300 (1976), and Imminent destruction of evidence, see, e.g., Schmerber v. California, 384 U.S. 757, 770-71 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966).

In the case at bar, the circuit court’s exigency finding was based solely upon “hot pursuit.” The parties focus their arguments on that type of exigency, and do not argue that imminent destruction of evidence or any other type of exigency existed or was found. 8 Exigent circumstances, standing alone, will not justify police entry into a home without a warrant. Exigency only has meaning as an exception to the warrant requirement. Therefore, for exigency to justify police entry into a home without a warrant, the police must have probable cause that would support the issuance of a warrant. Kirk v. Louisiana, 536 U.S. 635, 638 , 122 S.Ct. 2458 , 153 L.Ed.2d 599 (2002) (stating that to make a lawful entry into a house, the police “need either a warrant or probable cause plus exigent circumstances[.]”); Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir.1985) (en banc) (“[ejmergency is not enough”; police only ³²⁷ may enter a house without a warrant or consent of the homeowner if they have probable cause to believe that a search of that house will produce evidence fruitful to the criminal investigation); Fisher v. Volz, 496 F.2d 333, 339 (3d Cir.1974) (observing that the Supreme Court “has been quite clear that [exceptions to the warrant requirement], based on ‘exigent circumstances,’ do not dispense with the requirement of probable cause”).

The threshold question in the case at bar is whether the police had probable cause to support their entry into Apartment J in building 5933. Only then would exigent circumstances make their entry lawful. The objective the police were seeking to accomplish in systematically entering and searching all the apartments in buildings 5931 and 5933 was to find and arrest the men responsible for shooting Johnson. “Probable cause [to arrest] exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Longshore v. State, 399 Md. 486, 501 , 924 A.2d 1129 (2007) (quotations and alterations omitted). The facts and circumstances known to Officer Loiero, and communicated to the SWAT team members, were that Johnson was accosted by two men, one known to him and named “Ty.” The other man, who was not known to him except that he was a friend of “Ty,” was carrying two guns and was wearing a dark jacket.

That man shot Johnson. Immediately after the shooting two men dressed in black and wearing black masks were seen running away from Johnson’s apartment building and into either apartment building 5931 or 5933. Johnson and Gross were the sources of these facts, and the facts were based on their very recent firsthand observations. These facts were reasonably reliable and supported a rational inference that the two men that Gross saw run out of Johnson’s apartment building and into building 5931 or 5933 ³²⁸ were “Ty” and the shooter.

See generally 2 Wayne R. La-Fave, Search and Seizure, A Treatise on the Fourth Amendment, § 3.4(a), at 265 (5 ed.2012) (hereinafter “LaFave”) (reliability of victims and eyewitnesses to a crime is presumed, and collecting cases). They thus created probable cause to believe that “Ty” and the man with him were the people who had committed the offenses against Johnson. If the police had been on the scene when “Ty” and the shooter ran out of Johnson’s apartment building, they would have had probable cause to arrest them. In the circumstances here, however, probable cause to arrest was necessary but not sufficient.

See 3 LaFave, § 6.1(a) at 350-51 (if police enter “private premises for the purpose of making an arrest,” they must “at a minimum” have probable cause to believe the suspect has committed a criminal offense). The police also had to have probable cause to search, i.e., knowledge of facts and circumstances giving rise to a reasonable belief that “the legitimate object of a search is located in a particular place.” United States v. Steagald, 451 U.S. 204, 213 , 101 S.Ct. 1642 , 68 L.Ed.2d 38 (1981). In two cases, Maryland appellate courts have examined whether the police had probable cause to make a warrantless entry into a unit in a multi-unit building, in a claimed exigency situation. In Nilson v. State, 272 Md. 179 , 321 A.2d 301 (1974), three armed African-American males, wearing ski masks, robbed a bank of about $3,000, including $200 in “bait” money.

The assistant bank manager gave the police detailed physical descriptions of the robbers. Witnesses saw men matching the robbers’ descriptions use and discard several vehicles in the process of getting away, and then board a bus and take a taxi to an area near Callow Avenue. The police found one of the getaway cars, determined that it had been stolen, and found inside it a one-hour dry cleaning ticket bearing the name “McCoy” and the address “2458 Callow.” Id. at 181 , 321 A.2d 301 . They quickly responded to that address, which was a three-story, 15-unit apartment building, and saw another getaway car parked near the building.

A ³²⁹ records check revealed that that car was registered to apartment 12. The police learned from residents in the building that three African-American men were living in that apartment. The resident of apartment 10 told the police that the three men had left the apartment building at around 8:00 a.m., in the getaway car found nearby, and had returned at around 11:00 to 11:30 a.m. (The robbery was committed at 9:40 a.m.) A fourth man entered the apartment shortly thereafter.

At 12:45 p.m., a police officer knocked on the door to apartment 12. A man named Campbell answered, but refused to let the officer in without a warrant. While the officer was standing at the door, he heard noise coming from the back room. He pushed the door open and entered the apartment.

Nilson and Campbell were arrested in the front area of the apartment. Three other men, including McCoy, were arrested in the rear area. Inside the apartment, in plain view, were weapons similar to those described as being used in the robbery. Some of the bait money was found on one of the men inside the apartment.

The police proceeded to search the apartment. They seized two ski masks and a loaded revolver from underneath a mattress in the rear bedroom, and a boot containing $970 from inside a cupboard in the middle bedroom. After being charged in the robbery, Nilson moved to suppress all the evidence recovered from apartment 12. The trial court ruled that the warrantless entry was justified by exigent circumstances and denied the motion as to the weapons and bait money.

(It granted the motion to suppress as to the ski masks, revolver, and the $970 in currency.) Nilson was convicted, and, ultimately, his case came before the Court of Appeals. The Court rejected Nilson’s argument that exigent circumstances did not exist because the police waited over an hour after they arrived at the apartment complex before attempting to enter apartment 12. The Court observed that “during much of this period the police were conducting an on-the-scene investigation at the apartment building, and were carefully assembling evidence of the probable involvement in the crime ³³⁰ of the persons in apartment 12.” Id. at 191 , 321 A.2d 301 . The Court affirmed, holding there were exigent circumstances that justified the warrantless entry into apartment 12 “upon probable cause.” Id.

In Dent v. State, 33 Md.App. 547, 548 , 365 A.2d 57 (1976), this Court held that the police did not have probable cause to support a warrantless entry into a residence to search for a crime suspect. Two men broke into a couple’s house and robbed them at gunpoint, taking among other things an Admiral television set. From a photograph, the wife identified Dent as one of the robbers. In their haste, the robbers left several items at the couple’s house, including a jacket in which there was a note bearing a woman’s name, address, and telephone number.

The police contacted her and she told them she recently had met a man named Leon (Dent’s first name) who was living at a particular address on Midwood Avenue, in Baltimore City. The police went to that address, which was a house in which there were at least two apartment units. One officer knocked on the door of the second floor apartment. No one answered, but he heard a “scuffling” noise coming from inside.

At that point, other officers told him that Dent had been apprehended and arrested outside, while he was trying to run away from the building. Thinking the second robber might be in the second floor apartment, the officer arranged for other officers to use a ladder from an emergency vehicle to climb in the apartment through an open window and unlock the door from inside. The officer entered and found no one in the apartment. He did find an Admiral television set, however.

The officer applied for and obtained a search and seizure warrant for the second floor apartment, determined that the television set bore the serial number of the television stolen from the couple, and seized it. On appeal after conviction, Dent argued that the original warrantless entry into the second floor apartment was illegal and the television set seized from the apartment pursuant to the later-issued warrant was tainted by the illegal entry and ³³¹ search. The State maintained that the entry was justified by exigent circumstances. We reversed, holding that the facts known to the police at the time of their warrantless entry into the second floor apartment did not constitute probable cause to believe that the second robber was inside that apartment: Only [Dent] had been tentatively identified as a participant in the robberies; the identity of the second robber was unknown; the information from the female informant placed [Dent] in the house on Midwood Avenue, but there was no designation of the second floor apartment as being the apartment of [Dent]. [Dent] was arrested outside the house and there was no information at that time suggesting that he had been in the second floor apartment; there was no evidence that a second person was in the apartment other than a “scuffling noise” allegedly heard by [the police officer] and his own “feeling” that someone was there; there was no information to indicate that a second person, if present, was involved in the robberies committed more than 30 hours previously.

Id. at 555-56 , 365 A.2d 57 . We further agreed with Dent that the fact that the television set was found inside the second floor apartment could not form a basis for the affidavit in support of the search warrant, because the television set was the fruit of the illegal search. Nor was there an independent source showing the presence of the television set in that apartment. Without the information about the television set, “no probable cause was stated which would justify the issuance of the warrant for the second floor apartment at this address.” Id. at 557 , 365 A.2d 57 .

Several federal and out-of-state cases have addressed what constitutes probable cause for the police to search apartments and hotel rooms for a crime suspect. In United States v. Scott, 520 F.2d 697 (9th Cir.1975), cert. denied, 423 U.S. 1056 , 96 S.Ct. 788 , 46 L.Ed.2d 645 (1976), four African-American males robbed a bank at gunpoint. They were seen speeding away from the bank in a car the police soon located. Tire marks nearby led police to conclude that the men had ³³² switched cars.

Witnesses in the area described seeing a car traveling away from the area at a high rate of speed. They provided a description of the car and a partial license plate number. The second car was located in the parking lot of an apartment complex. It still was warm to the touch.

There were 20 apartments in the complex. From information they already knew and additional information they obtained from the apartment manager, the police figured out that seven of the apartments were leased to African-American males. They entered and searched six of those apartments, finding nothing. They knocked on the door of the last apartment of interest—apartment 7—but there was no response.

They obtained the manager’s pass key and gained entry. The defendants were found inside, as was evidence connecting them to the robbery. They were charged and convicted of bank robbery. On appeal, a divided panel of the Ninth Circuit held that the district court properly denied a motion to suppress evidence found in apartment 7.

All three panel members agreed that there were exigent circumstances. Had the officers delayed their entry to apartment 7 to secure a search warrant for that apartment, the suspects might well have escaped or concealed evidence, and the risk of armed confrontation would have been increased. Id. at 700 . They disagreed on the issue of probable cause to believe the suspects were inside apartment 7.

The majority held that by focusing only on the seven apartments leased by African-Americans, and then eliminating six of them, the police came to have probable cause to believe the robbers were inside apartment 7: Accepting that pursuit here had brought the officers to the apartment house, this did not render each apartment in it subject to search. The occupants of each apartment had their independent right to be free from unreasonable search. No apartment was subject to entry in the absence of probable cause to believe that the robbers were present in that particular apartment. ³³³ The question, then, is whether the officers at apartment 7 had, at the time of entry, probable cause to believe that the fugitives they sought were there; whether, with action frozen at that moment, a warrant could properly have been issued for search of the apartment. In our judgment it could.

There was reasonable cause to believe that the fugitives had entered the apartment complex. There was knowledge that they were not present in 6 of the 7 units most likely to be their objectives. Apartment 7 then remained as the most likely choice. There was cause to believe that it was occupied and that the occupant or occupants did not wish to admit their presence.

Id. (footnote omitted). In a footnote, the majority commented that the record did not reveal how the police had entered the other six apartments, but, even assuming impropriety, [the defendants] lack standing to complain of the intrusion. Such would have been the rule had incriminating evidence been seized [from the other apartments].

See Brown v. United States, 411 U.S. 223 , 93 S.Ct. 1565 , 36 L.Ed.2d 208 (1973). In our judgment no broader rule of standing should apply where violations of the rights of third parties merely contribute to the existence of probable cause. Id. The dissenting judge took issue with this, observing that the majority was perhaps acting precipitously in assuming that the criteria used for determining standing to challenge an illegal seizure of goods also govern the standing to challenge a series of general searches without probable cause, the results of which are then used to find probable cause for arresting the one now making the challenge.

Id. at 703. A little over a decade later, the Ninth Circuit decided United States v. Winsor, 846 F.2d 1569 (9th Cir.1988) (en banc), which involved a systematic search of a multiple dwelling building, similar to the search in the case at bar. A bank ³³⁴ robber fled the scene of the crime, with the police in pursuit. Officers saw him enter a two story residential hotel.

They surrounded the hotel and obtained permission from the hotel manager to search for the suspect. One of the officers involved in the search had a surveillance photograph from a prior bank robbery, thought to have been committed by the same man, that showed the robber and an accomplice who was acting as a “look-out.” The police carried out a room-by-room search of the hotel. At each room, with guns drawn, they knocked on the door and announced, “Police. Open the door.” After searching all the rooms on the first floor and some on the second floor (about 15 to 25 total), the police knocked on the door to room 218.

The defendant’s brother opened it. The police officer with the surveillance photo immediately recognized him as the robber and held him at gunpoint while the other officers entered the room and searched it. There, they found the defendant, who was the “look-out” in the surveillance photo, and evidence of the robbery. Before trial, the defendant challenged, without success, the police entry into room 213, on Fourth Amendment grounds.

He was convicted of possessing proceeds from a bank robbery. On appeal, a panel of the Ninth Circuit affirmed. It explained that “hot pursuit” alone could not justify the police entry into room 213 because, while “ ‘[h]ot pursuit may excuse police from the Fourth Amendment’s warrant requirement,’ ” it may not “ ‘excuse the absence of the requisite degree of suspicion before effecting a search.’ ” Id. at 1571 (quoting United States v. Winsor, 816 F.2d 1394, 1396 (1987)). The government conceded that the police did not have probable cause to believe that the bank robbery suspect was inside room 213 when they entered that room.

It argued, however, that the police had “reasonable suspicion ... to believe that the suspect would be in ... one of the rooms that had not yet been searched” and that reasonable suspicion (as opposed to probable cause), coupled with the “important law enforcement interests,” outweighed the “minimal intrusion on [the defendant’s] privacy rights.” Id. ³³⁵ In a rehearing en banc, the Ninth Circuit disagreed. It held that to lawfully conduct a warrantless search of a dwelling based on exigent circumstances the police must have probable cause to believe the suspect is inside that dwelling; reasonable suspicion that the suspect is inside the dwelling is not enough. The en banc court concluded that the suppression motion should have been granted, and reversed the conviction. In Winsor, the defendant lived in the hotel room that was illegally entered and searched.

In Fisher v. Volz, 496 F.2d at 338 , the Third Circuit held that exigency will not justify a warrantless police entry into the home of a third party to search for a crime suspect unless the police have “probable cause to believe that the named suspect is present within [the premises].” Fisher was a civil action for damages brought pursuant to 42 U.S.C. section 1983 by six African-American citizens of Newark, New Jersey. They alleged that the Newark Police Department (“NPD”) had violated their Fourth Amendment rights by searching their homes without a warrant or probable cause in an effort to find suspects in a bank robbery. Bernice Bass was one of the plaintiffs in Fisher . In the aftermath of the bank robbery, the FBI identified suspects and obtained arrest warrants for them.

Five days after the robbery, during an interview at the home of the mother of one of the suspects, an FBI agent noticed a piece of paper with a phone number for another of the suspects. A check of that phone number linked it to an individual by the name of “B. Bass.” Police investigated and determined that Bass previously had paid a bail bond for one of the suspects in an unrelated matter. That afternoon, FBI agents and NPD officers went to an address identified for Bass and discovered that it was a six-story apartment house. The superintendent of the apartment house gave the officers a key to an apartment for “B. Bass.” The police entered the apartment, searched for a few minutes, and, finding no one there, left.

When Bass returned home, ³³⁶ she learned from neighbors that the police had searched her apartment. Bass’s 1983 action against a particular detective in the NPD was tried to a jury, which returned a defense verdict. On appeal, Bass argued that the trial court improperly instructed the jurors that if they found exigent circumstances they could find that the police entry into her apartment was not unreasonable. She also argued that the court erred in instructing the jurors that they could consider eleven factors in deciding exigency, including whether the police had “strong reason to believe that the suspect was in the premises being entered.” Id.

The Third Circuit reversed, holding that the jury instructions were legally incorrect because they permitted the jurors to “return a verdict against plaintiff Bass if [the jurors] found the existence of some of the factors enumerated by the trial court created ‘exigent circumstances’ which justified the entry into her apartment, even though there might not have been probable cause to enter.” Id. The Court explained that “police officers may not constitutionally enter the home of an innocent citizen in search of a suspected offender for whom they have a valid arrest warrant, even under exigent circumstances, unless they also have probable cause to believe that the suspect will be found on the premises.” Id. at 341-42 (emphasis added) (footnotes omitted). In Llaguno v. Mingey, 763 F.2d at 1560 , the Seventh Circuit held that the police must have probable cause to believe a suspect is inside the home of a third party before entering that home without a warrant, even when the exigency involved is a serious and imminent threat to public safety. There, police in Chicago were conducting a massive manhunt for a suspect who, along with an accomplice, had committed two robberies, killed four people, wounded three others (including a police officer), and abducted a young girl. .The police captured the accomplice after he crashed his getaway car.

That car was registered to Vilma Llaguno and had not been reported stolen. With this information, several police officers went ³³⁷ to the Llaguno home armed with a shotgun and a sledgehammer. They did not have a warrant. They banged on the door and ordered the woman who responded, Gloria Llaguno, to open it.

They ran inside with guns drawn and herded the ten occupants of the home into the living room. Gloria’s son, David Llaguno, was arrested and held for more than 40 hours. No charges were filed against him. The person who actually committed the crimes later was shot and killed by the police.

He was another of Gloria’s sons, but did not live with her. Gloria, David, and other residents of the Llaguno house brought a section 1983 action against the police officers who entered their home without a warrant. A jury returned a verdict in favor of the police officers and the plaintiffs appealed. In a rehearing en banc, the Seventh Circuit reversed and remanded on the ground of an improper jury instruction on probable cause.

The court found that the danger to the public was so great as to have constituted exigent circumstances. In addition to exigency, however, the police had to have probable cause, ie., knowledge of facts giving rise to a reasonable belief that “the search of this house [ie., the Llaguno house] would prove fruitful in the criminal investigation.” Id. at 1565 (emphasis in original). “Emergency is not enough.” Id. Even under these extreme circumstances, the police could not have “search[ed] every house in Chicago or even every house on the Llagunos’ block.” Id. The court concluded that the jury instruction on probable cause erroneously permitted the jurors to find that the warrantless entry into the Llaguno home was lawful without any consideration of whether the police reasonably should have “act[ed] so hastily on the basis of their very limited knowledge without investigating further.” Id. at 1568 .

In Vasquez v. Snow, 616 F.2d 217 (5 Cir.1980), also a section 1983 case, an arrest warrant was issued for a robbery suspect the police knew only as “Sotelo.” The police could not find Sotelo because he had “too many friends, and he was staying with all of them.” Id. at 218 . He moved from house to house, staying a night or two, at most, before moving on. During the investigation, a police detective received a tip that “Sotelo ‘had ³³⁸ been seen’ with some frequency” at Vasquez’s house and that he “ ‘maybe ... was staying there part of the time.’ ” Id. A few days later, several police officers conducted warrantless searches of three houses, without success.

They then surrounded Bertha Vasquez’s house, and an officer knocked on the door and identified himself. Vasquez’s sister answered the door. The officer informed her that he had a warrant for Sotelo’s arrest and believed that Sotelo was inside. She refused him entry.

When the officer threatened to enter by force, she “capitulated” and let him inside. Id. at 219 . The police searched the house for Sotelo, but did not find him. Vasquez sued two of the police officers who searched her house, alleging that their warrantless entry into her home violated her Fourth Amendment rights.

The trial court granted summary judgment in favor of the officers, ruling, as pertinent, that the search was lawful. The Fifth Circuit reversed. It explained that a police officer with an arrest warrant for a suspect may search the premises of a third party for the suspect if the police officer has a probable cause that the suspect is inside. Specifically, the officer must have “knowledge and trustworthy information [of the type that] would cause a man of reasonable caution to believe that the suspect” is in the particular place to be searched.

Id. at 220 . The court held that the facts known to the police officer who knocked on Vasquez’s door did not give rise to a reasonable belief that Sotelo was inside Vasquez’s house. The court emphasized that Sotelo was evading arrest; had been moving from place to place; that the tip stated that Sotelo had been seen at the Vasquez house a few days prior to the search; and that there was “a substantial likelihood that [Sotelo] [was] at a location other than the target.” Id. Characterizing the search of Vasquez’s house as “at best a shot in the dark,” id. at 219 , the court pointed out that the conduct of the police on the same day, but before the search, showed that they simply were guessing as to where Sotelo would be found.

Vasquez’s house was the fourth one searched that day “sans search ³³⁹ warrant.” Id. “[The police] obviously thought that Sotelo might just as easily have been hiding in these other places.” Id. “The fourth amendment plainly forbids such wholesale intrusions.” Id. No case better illustrates the perversity of “wholesale intrusions” than Lankford v. Gelston, 364 F.2d 197 (4 Cir.1966). The searches in Lankford were the notorious “Veney raids” in Baltimore City, which stemmed from an armed robbery of a liquor store committed by multiple men on Christmas Eve in 1964. One of the robbers shot and seriously wounded a police lieutenant.

Several suspects immediately were identified and a widespread manhunt commenced. On Christmas Day, a police sergeant aiding in the search for the suspects was shot and killed. Several arrests were made, but the two primary suspects, brothers Samuel and Earl Veney, remained at large. Arrest warrants issued for the Veney brothers charging them with the armed robbery and the shooting of the lieutenant.

The BPD Commissioner authorized the formation of a special police squad to search for the Veney brothers. Over the next 19 days, the BPD received hundreds of unverified anonymous tips and, in reliance upon them, conducted “turn ups” of more than 300 houses. A “turn up” is “an investigation of a location and usually includes a search of the premises.” Id. at 199 . The police did not seek or obtain a search warrant for any of the premises.

The searches proceeded as follows: A police emergency vehicle carrying shotguns, subma-chine guns, tear gas apparatus, and bulletproof vests accompanied the men on every search. Before each turn-up a surveillance team of plainclothesmen would drive past the building to locate exits, alleyways, etc., but there were no inquiries in the neighborhoods about the houses to be searched nor was there any other investigation of the tips, except to observe the character of the neighborhood. Four officers carrying shotguns or submachine guns and wearing bulletproof vests would go to the front door and knock. They would be accompanied or followed by super ³⁴⁰ vising officers, a sergeant or lieutenant.

Other men would surround the house, training their weapons on windows and doors. “As soon as an occupant opened the door, the first man would enter the house to look for any immediate danger, and the supervising officer would then talk to the person who had answered the door.” Id. (quoting Lankford v. Schmidt, 240 F.Supp. 550, 554 (D.Md.1965)). The plaintiffs in Lankford were four African-American families, on behalf of other similarly situated persons, whose homes were subjected to warrantless police searches during the Veney raids. 9 They brought a section 1983 action against the BPD Commissioner, seeking injunctive relief to prevent further warrantless intrusions. The Fourth Circuit held that the plaintiffs’ homes had been searched without probable cause, in violation of the Fourth Amendment.

It opined: This case reveals a series of the most flagrant invasions of privacy ever to come under the scrutiny of a federal court. The undisputed testimony indicates that the police in conducting the wholesale Veney raids were engaging in a practice which on a smaller scale has routinely attended efforts to apprehend persons accused of serious crime..... The parties seeking redress have committed no acts warranting violation of the privacy of their homes; there has ³⁴¹ never been any suspicion concerning them or their associations. Id. at 201-02.

The court held that the plaintiffs were entitled to injunctive relief. It emphasized that every member of the BPD should be “familiar with the principle that if the police intend to conduct a search of a man’s home for a suspect, they must at least have probable cause to believe that he is on the premises.” Id. at 202-03. The court admonished the BPD that wholesale raids on the homes of African-Americans in poor neighborhoods would lead those citizens to believe, justifiably, that they were not entitled to the same protections as the rest of society; and that, in turn, would expose Baltimore City to the “agony and brutality of the riots” experienced in other large cities that Baltimore had “escaped thus far.” Id. at 203. The court opined: The police department is society’s instrumentality to maintain law and order, and to be fully effective it must have public confidence and cooperation.

Confidence can exist only if it is generally recognized that the department uses its enforcement procedures with integrity and zeal, according to law and without resort to oppressive measures. Law observance by the police cannot be divorced from law enforcement. When official conduct feeds a sense of injustice, raises barriers between the department and segments of the community, and breeds disrespect for the law, the difficulties of law enforcement are multiplied. Id. at 204 (footnote omitted).

We return to the case at bar. Under the holdings in the cases just discussed, even in the face of exigent circumstances the police could not enter Apartment J, without a warrant, to search for the suspects in the Vaughn Johnson shooting unless they had probable cause to believe that the suspects were in that apartment. To be sure, the police had knowledge of facts and circumstances that made it reasonable to believe that the ³⁴² suspects were inside an apartment in either building 5931 or 5933. That was not sufficient, however. 10 As the holding and underlying facts in Nilson make clear, probable cause to believe that a suspect is inside a particular apartment unit in a multi-unit building need not be established by direct evidence, that is, evidence that the suspect was seen entering the apartment, either by the police or by a witness.

Circumstantial evidence that eliminates other apartments and points strongly toward a suspect being present in a particular apartment is sufficient to generate probable cause. Here, there was no direct evidence that the two suspects had entered Apartment J, nor was there circumstantial evidence, such as that gathered by the police in Nilson , connecting the suspects to Apartment J so as to make it probable that they were inside that particular apartment. As the holdings and underlying facts in Dent, Winsor, Fisher, Llaguno, Vasquez, and Lankford make clear, an educated guess or reasonable suspicion that a suspect is in one of two or one of several apartments in the same building, or in one of a series of houses in a given location, will not substitute for the probable cause necessary to search a particular apartment without a warrant, notwithstanding exigent circumstances. We also are guided by federal and state cases that make clear that, had Officer Loiero applied for and obtained a search warrant to search for “Ty” and the shooter in buildings 5931 and 5933, the warrant would have been void for lack of particularity.

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be