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Media Alerts - USA v. Kamaal Mallory - Third Circuit
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September 8, 2014
  USA v. Kamaal Mallory - Third Circuit
Headline: Third Circuit holds that where an exigency exception exists to justify a warrantless search, that exigency dissipates when the suspect is found and placed into custody and suppression of an illegal firearm found subsequent to the suspect's arrest is therefore warranted.

Area of Law: Criminal Procedure

Issues Presented: Is a search warrant required where a suspect was found and arrested pursuant to the exigency exception, but after the suspect was firmly in custody another search produced an illegal firearm?

Brief Summary: In the middle of the night, Defendant Mallory and friends were outside his stepmother's home when a police officer pulled up to the scene. One of Defendant's friends caused a disturbance and was taken into custody. More officers arrived after a man was observed carrying a firearm. Later identified as Defendant, the man with the firearm ran into his stepmother's house. The officers conducted a search for both Defendant and the firearm. Police found Defendant in the home unarmed, and they arrested and handcuffed him. Before escorting Defendant out of the house, the police conducted a final search of the doorway and located the illegal firearm.

Finding that this case fell just outside the Fourth Amendment's exception to warrantless search and seizure, the Third Circuit held that the exigencies that existed while in pursuit of Defendant dissipated when he was apprehended. As such, the warrant requirement reattached to any further search and seizure. The subsequent search that produced the gun was, therefore, in violation of the Fourth Amendment and properly suppressed. The Court affirmed the district court's decision.

Extended Summary: In the early morning hours of January 15, 2012, Defendant and several family members were at Defendant's stepmother's home. Defendant did not live at his stepmother's home full-time but he and his two daughters often stayed with her. At around 2:00 a.m., Defendant was standing outside when an officer approached in a police cruiser. A minor incident occurred that ended in Defendant's stepbrother being briefly detained. Two other officers, Officers Hough and Lynch, received a dispatch that there was a group of men outside on the same block, one of which had a gun. The officers saw that Defendant matched the description on the dispatch and a chase ensued for Defendant. Defendant ran into his stepmother's house. The officers forced entry into the home with weapons drawn and ordered the other occupants to exit. Two other officers then arrived on the scene, totaling at least five officers. The officers searched the house top to bottom, looking in places where either a person or a firearm could be hidden. The officers found Defendant in a downstairs bathroom, arrested and handcuffed him, and began to take him out the front door. He did not combat or resist arrest. After his arrest but before he was ushered out the front door, the officers realized that the area behind the front door had not been searched. Upon searching the area, the police recovered a revolver located behind the front door.

Defendant was indicted on one count of possession of a firearm by a convicted felon. Defendant moved to suppress the gun. The district court granted the motion to suppress and the Government appealed. The question on appeal was "whether, after police had located and secured Defendant, an exigency remained that justified Officer Hough's search behind the door, which produced the revolver."

Before the Court could make a determination on the merits, the Court was faced with a matter of first impression as to what standard should be used when reviewing the exigent circumstances exception to a warrant for search and seizure. The Third Circuit drew a distinction between when a district court makes factual findings supporting a conclusion that exigent circumstances exist and whether the historical facts of a warrantless search or seizure meet the legal test of exigency. The Court held that the former must be reviewed with a clearly erroneous standard and the latter with a de novo standard. The Court reasoned that "[w]hen a district court makes factual findings supporting a conclusion that exigent circumstances existed, it makes the type of credibility determinations that district courts are best suited to make, and accordingly we will defer to them unless they are clearly erroneous. But whether the historical facts of a warrantless search or seizure meet the legal test of exigency is the type of question that involves the careful consideration of legal precepts and the values that underlie them, questions that favor de novo review." The Court thus reviewed de novo the district court's decision that the previously-existing exigency had dissipated.

It was undisputed that the police officers had probable cause and exigent circumstances that justified the officers' entry into the home and subsequent search for Defendant. Defendant argued that the exigency no longer existed when Defendant was found. The Government asserted that the exigency continued past Defendant's discovery because the search for the gun was necessary first to protect the officers and to prevent escape and second to prevent the weapon from being moved and hidden while the warrant was being procured.

The Court applied several factors to determine whether the search was justified by a reasonable belief that it was necessary to protect officer safety. Although not an exhaustive list, the Third Circuit looked at the following factors: "how soon after the alleged offense the search occurred; whether the alleged offense was violent in nature; whether the search occurred prior to or contemporaneous with Defendant's apprehension; whether the premises as a whole had been secured, or whether it was possible that unknown individuals remained in the house; whether Defendant or any of his family members had acted in an aggressive or threatening manner toward the police; whether other members of the family were free to move about the house unsupervised by an officer; how easily Defendant or a family member could have obtained and used the firearm; and the degree of intrusiveness of the search." The Court found that the exigency had dissipated due to the presence of many officers, the fact that Defendant did not combat or attempt to resist arrest, the house had been thoroughly swept before they found Defendant, and there was no evidence that Defendant's family posed a threat to the officers. The Court explained that those factors demonstrated that any exigent circumstances had dissipated by the time Officer Hough recovered the gun, rendering the warrantless search unjustified. Thus, the Third Circuit affirmed the decision of the district court.

To read the full opinion, please visit

Panel (if known): Fuentes and Fisher, Circuit Judges; Stark, Delaware District Judge (sitting by designation)

Argument Date: January 22, 2014

Date of Issued Opinion: September 3, 2014

Docket Number: No. 12-0379

Decided: Affirmed

Case Alert Author: Antoinette Snodgrass

Counsel: Virgil B. Walker, Esq., and Robert A. Zauzmer, Esq. for the Appellant, Office of United States Attorney; Catherine C. Henry, Esq., Joseph M. Miller, Esq., and Brett G. Sweitzer, Esq. for the Appellee, Federal Community Defender Office for the Eastern District of Pennsylvania

Author of Opinion: Judge Fisher

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/08/2014 12:57 PM     3rd Circuit  

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