United States v. Brodie

975 F. Supp. 851, 1997 U.S. Dist. LEXIS 13336, 1997 WL 550003
CourtDistrict Court, N.D. Texas
DecidedFebruary 18, 1997
DocketCriminal No. 3:96-CR-363-H
StatusPublished
Cited by1 cases

This text of 975 F. Supp. 851 (United States v. Brodie) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brodie, 975 F. Supp. 851, 1997 U.S. Dist. LEXIS 13336, 1997 WL 550003 (N.D. Tex. 1997).

Opinion

MEMORANDUM OPINION AND ORDER

SANDERS, Senior District Judge.

Before the Court is Defendant Brodie’s Motion to Suppress, filed December 19,1996; Government’s Response, filed December 26, 1996; Brodie’s Reply, filed January 6, 1997; Government’s Post-Suppression Hearing [853]*853Brief, filed January 28, 1997; and Brodie’s Supplemental Memorandum of Law in Support of Motion to Suppress, filed January 31, 1997.

I. BACKGROUND

Defendant Robert Curtis Brodie (“Bro-die”) moves to suppress items seized during the execution of a search warrant at his residence. Brodie contends that the affidavit supporting the search warrant contains information obtained from an illegal warrantless search which took place before the search warrant was issued. The Government contends that exigent circumstances, the protective sweep doctrine, and the plain view exception justify the warrantless entry into Brodie’s home.

On January 17, 1997, the Court held a hearing on Brodie’s Motion to Suppress. Based on the testimony and evidence at that hearing, the Court makes the following findings of fact:

On October 10,1996, at approximately 4:00 p.m., an Irving police patrol officer detected the smell of ether emanating from Brodie’s residence at 1219 Elwood Road, Irving, Texas. Testimony of Tim Boren at 10. Because ether is used in the manufacture of methamphetamine, the officer contacted Irving Police Department narcotics investigators Boren and Langoria, who arrived at the scene at approximately 4:20 p.m. Id.

The narcotics investigators drove by the front and side of the duplex and walked a drug detecting dog through a field behind the residence. Id. at 12 Neither the investigators nor the dog detected any odor of ether during the initial investigation. Id. at 12-13. When the investigators drove by the front of the duplex for the second time, they smelled what they suspected was ether emanating from the residence. Id. at 13

After smelling the ether, the plain-clothes investigators approached the residence and attempted to contact Brodie. Id. at 14-15. One of the investigators knocked on the front door of the residence, announced himself as a police officer, and asked Brodie to come to the door. Id. at 15-16. The investigator heard no response other than a barking dog. Id. at 16.

At approximately 4:50 p.m., the investigators requested that a uniformed police officer come to the scene to encourage Brodie to come to the door. Id. The uniformed police officer arrived around 5:00 p.m. and knocked on the door of the residence, announcing himself as a police officer and asking Brodie to come to the door. Id. at 17. Brodie did not respond but the dog continued to bark. Id. The uniformed officer knocked again, this time with his night stick. Id. The officers then heard Brodie tell the dog to be quiet. Id.

The smell of ether and the failure of Bro-die to respond caused the officers to suspect that manufacturing of methamphetamine was going on inside the residence. Id. at 28. The officers viewed this situation as “hazardous.” Id. 18. The officers blocked off the street and evacuated several houses, including the other side of Brodie’s duplex. Id. at 19-20. The officers called the fire department, which sent a battalion chief and a fire engine. Id. at 20.

The officers contacted neighbors to determine who lived at the residence. Id. They learned that only Brodie lived at the residence. Id. at 31. They learned Brodie’s name and phone number. Id. at 21. The police called the phone number but no one answered. Id. The officers' continued to encourage Brodie to come to the door by knocking and by calling him by name. Id. at 22.

Sergeant Hubbard, a sergeant in the narcotics division, arrived during this time. After consulting with the investigators, Hubbard decided they should attempt to obtain a search warrant to enter the residence. Testimony of Sergeant Ron Hubbard at 43-44. The two narcotics investigators left the scene to begin the process of obtaining a search warrant. Testimony of Tim Boren at 22.

At around 6:00 p.m., while the investigators were still attempting to procure a search warrant, Sergeant Hubbard and three tactical officers approached Brodie’s residence with their guns drawn to encourage Brodie to come outside. Testimony of Sergeant Ron [854]*854Hubbard at 4L-46. Sergeant Hubbard knocked loudly, calling Brodie by name and telling him to open the door. Id. at 46. After about twenty seconds, Brodie answered the door. Id. Sergeant Hubbard reached inside the doorway and pulled Brodie outside and down to the bottom of the porch steps. Id.

After Brodie was frisked and handcuffed, Sergeant Hubbard ordered Officer Robinson and at least one other officer to conduct a “protective sweep” of the residence. Id. at 47, 63-64, 69. Officer Robinson walked through the living room, down a hallway and into a back bedroom. Testimony of Chris Robinson at 79-80. In the back bedroom, Officer Robinson observed a jar containing what he believed to be liquid methamphetamine. Id. at 82-83. Based in part on the description of the contents of the jar, a Dallas County Magistrate issued a search warrant at approximately 6:50 p.m.. Testimony of Tim Boren at 37. Approximately two hours later, after the residence had been ventilated, the officers executed the search warrant. Id. at 38.

II. ANALYSIS

Warrantless searches are per se unreasonable under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380-81, 63 L.Ed.2d 639 (1980); Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 513-14, 19 L.Ed.2d 576 (1967). However, certain circumstances can excuse the warrant requirement. The Government argues that exigent circumstances, the protective sweep doctrine and the plain view exception justify the warrantless entry into Brodie’s residence. However, for the reasons that follow, none of the exceptions to the warrant requirement applies.

A. EXIGENT CIRCUMSTANCES EXCEPTION DOES NOT APPLY

For the exigent circumstances exception to the warrant requirement to apply, the officers’ entry must have been supported by probable cause and necessitated by exigent circumstances. United States v. Carrillo-Morales, 27 F.3d 1054, 1060 (5th Cir.1994), cert. denied, 513 U.S. 1178, 115 S.Ct. 1163, 130 L.Ed.2d 1119 (1995). Brodie does not dispute that the officers had probable cause to search the residence. Therefore, the issue is narrowed to whether exigent circumstances existed.

Exigent circumstances include those in which officers reasonably fear for their safety or where there is an imminent danger of destruction of evidence. See Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984); United States v. Rodea,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ramon Rios, III v. the State of Texas
Court of Appeals of Texas, 2021

Cite This Page — Counsel Stack

Bluebook (online)
975 F. Supp. 851, 1997 U.S. Dist. LEXIS 13336, 1997 WL 550003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brodie-txnd-1997.