United States v. Simmons, No. 10-1526-cr (2d Cir. October 26, 2011) (Winter, Pooler, Parker, CJJ)
New York City police officers accompanied an individual to his apartment in the Bronx to retrieve his belongings. He was moving out because his roommate, defendant Simmons, had pulled a gun on him during an argument a few days earlier.
Inside the apartment, the officers found Simmons in his bedroom; the door was ajar, he was lying in bed and there was a “shiny object” next to him. Simmons got up and the officers pulled him out of the bedroom and into the hall. They asked him about his dispute with the roommate and the gun. Simmons told the officers the gun was in his bedroom and they went in, retrieved it, and arrested him.
The circuit found that the officers’ questions to Simmons about the gun were covered by the “public safety” exception to Miranda, but nevertheless, the majority held that the district court erred in finding that there were exigent circumstances supporting the seizure of the gun itself.
The court began with the “core premise” that a warrantless search of a home presumptively violates the Fourth Amendment particularly where, as here, the search occurs “in the middle of the night.” And the appellate court rejected the district court’s finding of exigent circumstances. “[T]he circumstances facing the officers at the time they searched the bedroom were not sufficiently exigent to fall within [that] narrow exception.”
Simmons had been completely secured by the time the officers searched his bedroom and one of the officers stood in the doorway, guarding the room and ensuring that Simmons could not reenter. Simmons was dressed only in his underwear, was very cooperative and, in any event, there were many other officers present. Thus, before conducting the search, the police had effectively allayed any safety concerns and neutralized any threat that Simmons or the gun might have posed. In doing so, they also eliminated the possibility of the destruction of evidence. And, finally, there was nothing to suggest that the officers feared the possible presence of a third person in Simmons’ bedroom.
Given this, it would not have been impracticable – or dangerous – to continue securing the location while the officers obtained a warrant. The circuit accordingly reversed the order denying suppression.
Judge Winter dissented. He would have found that there were exigent circumstances, since the officers were uncertain as to the gun’s exact location and there was thus a risk that Simmons “or an unknown third party might seek to grab the weapon.” Alternatively, Judge Winter would have found that Simmons consented to the search. His voluntary statement that there was a gun in his bedroom was, to him, “implied consent to the officer’s entering his bedroom and securing” the weapon.