UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 21-cr-089-LM-01 Opinion No. 2021 DNH 165 P James Leonard
ORDER
Currently before the court is defendant James Leonard’s motion to suppress
(doc. no. 12). Leonard seeks to suppress evidence the police located in his
condominium unit on June 12, 2018. The court held an evidentiary hearing on two
days, September 16 and 30, 2021. For the reasons that follow, the motion to
suppress is denied.
BACKGROUND
Having weighed the evidence presented during the evidentiary hearing, the
court makes the following factual findings.
In June 2018, Leonard lived in a condominium unit on Crotched Mountain in
Bennington, New Hampshire. Leonard lived in the downstairs unit, and his
neighbor, Arienne Stearns, lived in the upstairs unit. On the back side of the
building, Stearns’s unit had a deck, and Leonard’s unit opened to ground level with
a patio area underneath Stearns’s deck. Leonard’s unit had a sliding glass door
that opened onto the patio area. Leonard kept a barbeque, some outdoor chairs,
and an area rug on his patio area. In the middle of the day on June 12, 2018, Stearns heard loud noises coming
from Leonard’s unit. She was familiar with these noises because she had heard
them on multiple occasions several weeks before and had previously reported the
noises to her landlord, Roger Luby. On June 12 she again called Luby, who this
time told her to call the police. She did so and shortly thereafter Bret Sullivan,
Chief of Bennington Police, arrived at the condominium.
As Sullivan got out of his cruiser, he could “clearly hear a male voice
screaming.” Sullivan called for backup. He spoke briefly with Stearns but has no
memory of speaking to her and does not recall the content of their conversation.
Stearns showed Sullivan the shared entrance to her and Leonard’s units through
the front of the building. Sullivan knocked at Leonard’s door multiple times and
identified himself as a police officer. He yelled for someone to open the door. The
door was locked; no one responded. Sullivan could not make out any words but
could hear a male voice yelling, moaning, and screaming, and he could hear loud
banging sounds as if someone’s body was being thrown against the wall. He
testified that, based on the nature of the screaming and noises, he “knew somebody
was in trouble” and thought there “was clearly an emergency of some sort.”
Around that time, Luby arrived, and Sullivan asked him to retrieve a key to
access Leonard’s unit. As the screaming and loud noises continued, however,
Sullivan did not wait for Ruby to retrieve a key. Instead, he headed to the patio
area behind the unit, as he was familiar with these condominiums and knew about
the entrance on the back side. While Sullivan could not precisely characterize the
2 noises, he continued to think a person was in distress and needed immediate
assistance. At that time, Officer Matthew Guinard of the Antrim Police
Department arrived. Neither officer called for an EMT.
No path or walkway led around to the back, so the officers walked across the
lawn to get to the back of the condominium. As they began walking to the back,
Sullivan heard what sounded to him like vomiting. Sullivan testified that, at this
point, he thought someone could have been “knocked unconscious” and in grave
danger. He explained that he thought someone needed immediate assistance based
on the nature of the loud noises, including the “screaming, the moaning, the
vomiting, and the banging on the wall . . . .” Once they reached the back of
Leonard’s unit, the officers smelled “freshly burnt marijuana.”
The sliding glass door to Leonard’s apartment was open about six to twelve
inches, but a curtain was drawn shut so the officers could not see inside. Sullivan
yelled, “Bennington police, is everything okay?” When no one answered, he reached
his hand through the sliding glass door and opened the curtain. Immediately inside
the doorway Sullivan saw a knife and a box cutter on a table. Sullivan reached
inside the door and retrieved them, out of a concern for his own safety.1
1 Leonard testified that the knife and the box cutter were not immediately
inside the doorway, but rather were closer to the bottom of a staircase. Thus, he testified that Sullivan would have had to walk approximately three steps into the apartment to retrieve the knife and box cutter. The court finds Sullivan’s testimony on the location of the knife and box cutter credible. In any event, this fact is not material because it is undisputed that, by entering the back patio area, Sullivan entered the curtilage of Leonard’s property. The critical question in this case is whether Sullivan’s initial entry onto the patio area (when he smelled marijuana) was unlawful.
3 Sullivan then saw a man, whom he later learned was Leonard, walk out of
the bathroom and stand inside the unit. Leonard was soaking wet and wearing
nothing but a towel. Sullivan asked Leonard to step outside and speak with him,
and Leonard obliged. Leonard gave the officers his name and date of birth. When
asked about the noises, Leonard said he had been listening to music. Sullivan did
not hear any music playing.
During this conversation, Chief Frederick Douglas from the Francestown
Police Department arrived. The officers asked Leonard if he had been using
marijuana or other drugs. Leonard denied using drugs that day, though he
acknowledged that at a different point in his life, he had used heroin and gone to
rehabilitation for it. Sullivan asked Leonard for consent to a search of his
condominium, and Leonard declined. Sullivan told Leonard that he intended to
apply for a warrant to search the condominium.
Leonard asked the officers if he could go back inside to get dressed. Sullivan
told him he could reenter the condominium only if an officer accompanied him.
Sullivan explained that he needed to prevent the destruction of evidence pending
the execution of the search warrant. Leonard declined to reenter the condominium
with an officer and remained outside in his towel. Sullivan left the scene to apply
for a search warrant. Guinard and Douglas remained with Leonard at the scene.
After confirming he was free to leave, Leonard returned to the front of the building,
got into his truck, and eventually drove away—all still while wearing only a towel.
4 Later that afternoon, Sullivan obtained a search warrant for Leonard’s
apartment. While executing the search warrant, officers uncovered what appeared
to be marijuana and heroin, as well as what appeared to be explosive devices
including a pipe bomb, detonators, gun powder, and other items used for explosives.
More than two months later, on August 30, 2018, Leonard turned himself in
on an arrest warrant. After waiving his Miranda rights, Leonard stated that, on
June 12, he “was not in a very good place mentally, had consumed a large quantity
of alcohol, that he was having conversations with himself.”
The testimony among the witnesses at the suppression hearing was largely
consistent with respect to the nature of the sounds coming from Leonard’s unit on
June 12. In particular, Stearns testified that she had heard similar noises on
multiple occasions several weeks earlier, though she had not called the police at
those times. On one such occasion, she made an audio recording of the noises so she
could consult a friend about them.2 While she considered the noises on June 12 an
annoyance, she stated that she called the police on that date at least partially out of
a concern for Leonard’s safety and well-being. She noted that, based on the noises,
2 The audio recording was played for the court at the suppression hearing. The volume was faint; Stearns testified that it was not an accurate representation of how loud the noises were because the recording was not very good quality. Having listened to the audio, the court finds the quality of the audio makes it difficult to discern any noises with clarity. Ultimately, the court does not find the audio evidence helpful on the critical question of whether Sullivan’s interpretation of the loud noises coming from Leonard’s condominium was reasonable.
5 she “didn’t know if he was hurt or in trouble.” She described the noises as
“disturbing,” and as including “screaming” and “banging on the wall.”
Leonard’s testimony also corroborated Sullivan and Stearns’ testimony about
the nature of the noises. Leonard testified that he was upset on June 12 because
the day before he had been laid off from his job at Crotched Mountain Ski Resort.
Then, on June 12, he woke up late to start a new part-time painting job. Having
lost his full-time job and perhaps a new part-time job, Leonard admitted he was
angry and upset. He conceded that, while he was in the shower, he was “screaming”
about his predicament. He also admitted that it was not unusual for him to “scream
and bounce off walls.”
DISCUSSION
Leonard moves to suppress all evidence obtained by law enforcement in this
matter. He argues that the officers violated his Fourth Amendment rights by
intruding onto the curtilage of his home without a warrant on June 12, 2018.
Leonard contends that once Sullivan’s observations from the initial intrusion are
removed from the search warrant, the warrant lacks sufficient probable cause.
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. Amend. IV. Warrantless searches are “per se unreasonable
under the Fourth Amendment,” unless an exception applies. Minnesota v.
Dickerson, 508 U.S. 366, 372 (1993). The government argues that two exceptions
6 to the warrant requirement apply: first, that Sullivan had an implied license to
enter Leonard’s curtilage and, second, that Sullivan had an objectively reasonable
basis for believing that someone in the home needed immediate aid. The court
discusses each in turn.
I. Implied License to Enter Curtilage
The area “immediately surrounding and associated with the home” is known
as “curtilage.” Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Oliver v. United
States, 466 U.S. 170, 180 (1984)). Curtilage is “intimately linked to the home, both
physically and psychologically,” and thus it is “part of the home itself for Fourth
Amendment purposes.” Id. at 6-7 (citations omitted).
In certain instances, police have an implied license to enter curtilage without
first obtaining a warrant, but “no more than any private citizen might do.” Id. at 8
(citation omitted). Thus, custom and social norms determine whether an implied
license to curtilage exists. See id. at 9. For example, it is customary for all
manners of visitors, solicitors, and mail carriers to step onto one’s porch to reach the
front door. Id. at 8. As Justice Scalia described it in Jardines, an implied license
“typically permits the visitor to approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invitation to linger longer)
leave.” Id. Justice Scalia underscored that “[c]omplying with the terms of that
traditional invitation does not require fine-grained legal knowledge; it is generally
managed without incident by the Nation's Girl Scouts and trick-or-treaters.” Id.
7 The First Circuit has permitted some leeway where the circumstances
suggest a front door is inaccessible to the public. See United States v. Daoust, 916
F.2d 757, 758 (1st Cir. 1990). In Daoust, the defendant’s home was a log house dug
into the side of a hill, and the front door was not accessible because it was five feet
above ground and had no steps. Id. Officers tried knocking at a glass cellar door,
and, after there was no answer, they walked up the slope of the hill to the back of
the house. Id. The First Circuit held that “if [the front] door is inaccessible there is
nothing unlawful or unreasonable about going to the back of the house to look for
another door, all as part of a legitimate attempt to interview a person.” Id.
Jardines makes clear, however, that there are spatial and temporal limits to
an implied license. See 569 U.S. at 9. In his dissenting opinion in Jardines, Justice
Alito—who agreed with the majority on this point—articulated the limit as follows:
“A visitor must stick to the path that is typically used to approach a front door, such
as a paved walkway. A visitor cannot traipse through the garden, meander into the
backyard, or take other circuitous detours that veer from the pathway that a visitor
would customarily use.” Id. at 19 (Alito, J., dissenting).
The government concedes that, in entering Leonard’s back patio area,
Sullivan entered the curtilage. Doc. no. 15 at 6 n.3. The question, then, is whether
Sullivan (and Guinard)3 had an implied license to enter the curtilage. Based on the
3 Guinard was with Sullivan when they entered the curtilage. Sullivan took the lead throughout the encounter, and Guinard took no independent actions material to the analysis. For simplicity, therefore, the court refers solely to Sullivan.
8 principles laid out in Jardines, they did not have an implied license to explore a
back entrance to the condominium. After receiving no response at the front door,
Sullivan walked across the lawn around the side of the condominium to Leonard’s
backyard. There was no path or public walkway leading to the back. Having been
to these condominiums on many occasions, Sullivan knew there was a back
entrance. However, there were no objective facts that would lead a visitor, such as
a girl scout or a trick-or-treater, to venture to the backyard. See Jardines, 569 U.S.
at 8. Moreover, unlike in Daoust, the front door of Leonard’s unit was accessible.
See 916 F.2d at 758. Under these circumstances, no implied license existed.
II. Exigency: Emergency Aid
Next, the government argues that exigent circumstances justified the
warrantless intrusion on Leonard’s property. Specifically, the government contends
that the emergency aid exception justified Sullivan stepping onto Leonard’s
curtilage.
One category of an exigency justifying a warrantless search is known as the
“emergency aid exception.” See Michigan v. Fisher, 558 U.S. 45, 47-48 (2009) (citing
Brigham City v. Stuart, 547 U.S. 398, 406 (2006)). This exception is premised on
the fact that the “role of a peace officer includes preventing violence and restoring
order, not simply rendering first aid to casualties.” Brigham City, 547 U.S. at 403.
Thus, “law enforcement officers may enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an occupant from
9 imminent injury.” Id. Under the emergency aid exception, officers may enter a
home4 without a warrant if there is “‘an objectively reasonable basis for believing’
that ‘a person within [the home] is in need of immediate aid.’” Hill v. Walsh, 884
F.3d 16, 19 (1st Cir. 2018) (quoting Fisher, 558 U.S. at 47).
“Officers do not need ironclad proof of ‘a likely serious, life-threatening’ injury
to invoke the emergency aid exception.” Fisher, 558 U.S. at 49. For example, the
Supreme Court has held entry was justified under this exception where officers saw
the following scene through a window: a juvenile was being restrained by four
adults, he broke free, hit one of them in the face, and the victim suffered a bloody
lip. Id. (citing Brigham City, 547 U.S. at 406). The Supreme Court held that the
bloody lip and potential future injury stemming from the altercation were sufficient
to allow offers to enter to render aid. See Brigham City, 547 U.S. at 406. The Court
noted that the Fourth Amendment did not require officers to “wait until another
blow rendered someone ‘unconscious’ or ‘semi-conscious’ or worse before entering.”
Id. Moreover, officers do not need certainty that aid is needed. Unlike other types
of exigencies justifying warrantless searches, the emergency aid exception does not
require probable cause. Hill, 884 F.3d at 19. It requires only an “objectively
reasonable basis for believing” aid is needed. Fisher, 558 U.S. at 47 (citation
omitted).
4 Because the curtilage is “part of the home itself for Fourth Amendment
purposes,” Jardines, 569 U.S. at 6, the emergency aid exception applies with equal force to the curtilage as to a dwelling itself.
10 Although the Supreme Court recently made clear that a different exception to
the warrant requirement—the community caretaking exception—does not apply to
searches of homes, the Court reiterated that the emergency aid exception from
Brigham City is still good law. See Caniglia v. Strom, 141 S. Ct. 1596, 1599 (2021)
(citing Kentucky v. King, 563 U.S. 452, 460 (2011) and Brigham City, 547 U.S. at
403-04); see also id. at 1600 (Roberts, C.J., concurring). Justice Kavanaugh
concurred separately to discuss the application of the emergency aid exception. Id.
at 1602-05 (Kavanaugh, J., concurring). He wrote that, for example, officers may
enter a home without a warrant “where they are reasonably trying to prevent a
potential suicide or to help an elderly person who has been out of contact and may
have fallen and suffered a serious injury.” Id. at 1603 (Kavanaugh, J., concurring).
Here, Sullivan testified that as soon as he pulled into the condominium’s
parking lot, he could clearly hear a male voice screaming. As he walked towards
the building, he started to hear loud thuds; it sounded like someone banging on the
walls and things being thrown. When he knocked on the front door to Leonard’s
unit, no one answered. Based on these facts, Sullivan had an objectively reasonable
basis for believing that a person inside the unit was in need of immediate aid. See
Fisher, 558 U.S. at 47. Sullivan did not need “ironclad proof” that the emergency
was real, just an objectively reasonable belief under the circumstances. See id.
Stearns’s testimony about her own concern for Leonard based on the noises
supports the reasonable basis for Sullivan’s belief that aid was needed. Stearns
testified that she thought the noises were “disturbing” and might have indicated
11 Leonard could have been hurt. She stated she was “concerned that he might be in
trouble.”
To be sure, Stearns testified that she considered the noises—which she had
heard several times before—a mere annoyance. She admitted that she had not
called the police or an ambulance on those prior occasions. But it is not surprising
that Leonard’s loud noises caused Stearns to react with annoyance in addition to
concern for Leonard. The fact that she waited until June 12 to call the police
supports an argument that the noises may not have prompted the same degree of
concern in Stearns as they did in Sullivan. Nonetheless, Stearns testified that her
call on June 12 was motivated at least in part by concern for Leonard and that she
found the noises to be disturbing and potentially indicative of a need for emergency
aid.
Leonard’s strongest argument that the emergency aid exception does not
apply is that Stearns told Sullivan that she had heard Leonard making similar
noises before, and thus Sullivan should have approached the situation like a noise
complaint instead of an emergency.5 However, this fact is outweighed by the other
evidence. Considering the circumstances and his experience as a police officer,
Sullivan reasonably thought the noises could indicate a person in the midst of a
drug overdose or a person experiencing a drug-induced emergency medical need.
5 Although Sullivan testified that he had no memory of talking to Stearns,
Stearns testified that she told Sullivan the noises had occurred before, and the dispatch records reveal Stearns reported the same to the 911 operator. Further, Sullivan included the fact that Stearns had heard the noises before in his application for the search warrant.
12 See Fisher, 558 U.S. at 49 (holding that a medical concern does not need to be life-
threatening for the emergency aid exception to apply). Based on the totality of
evidence, the court finds that it was objectively reasonable for Sullivan to conclude
that a person was potentially in danger and in need of immediate aid.
Leonard also argues that any suggestion that Sullivan was sincerely
concerned about Leonard’s health is belied by the fact that the Sullivan did not call
emergency medical services, and that he prevented Leonard from going back inside
his unit to gather some clothing without a police escort. An officer’s subjective
belief, however, is irrelevant. Brigham City, 547 U.S. at 404 (citing Whren v.
United States, 517 U.S. 806, 813 (1996)). Indeed, the Supreme Court addressed a
similar argument in Michigan v. Fisher, and stated that “even if the failure to
summon medical personnel conclusively established that [the officer] did not
subjectively believe, when he entered the house, that [the defendant] or someone
else was seriously injured (which is doubtful), the test, as we have said, is not what
[the officer] believed, but whether there was ‘an objectively reasonable basis for
believing’ that medical assistance was needed, or persons were in danger.” 558 U.S.
at 49 (citing Brigham City, 457 U.S. at 406).
In summary, Leonard’s Fourth Amendment rights were not violated here.
The emergency aid exception to the warrant requirement applies, and Leonard’s
motion to suppress is denied.
13 CONCLUSION
For the foregoing reasons, Leonard’s motion to suppress (doc. no. 12) is
denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
October 18, 2021
cc: Counsel of Record