United States v. Tyrond Brown , 64 F.3d 1083 ( 1995 )

EASTERBROOK, Circuit Judge.

A cocaine buy-and-bust led the Drug Enforcement Administration to Tyrond Brown. An agent bought crack cocaine from Chris Johnson, who was immediately arrested. Johnson agreed to finger his source, “Ty,” who was expecting payment, and a series of calls on portable telephones ensued. The agents drove Johnson to the agreed place, where they found at the curb a man meeting Johnson’s description of his source. Johnson’s enthusiasm for the venture waned; he refused to tell the agents whether this was indeed “Ty.” So the officers debouched and asked the pedestrian to participate in an experiment. Could they press the redial button on the phone he was carrying? He said yes, they did, and Johnson’s telephone rang. The agents arrested the man, who turned out to be Tyrond Brown. He pleaded guilty to a cocaine offense and was sentenced to 76 months’ imprisonment. One reason Brown capitulated is that the prosecutor had more than a phone connection and Johnson’s word to go on. Agents seized crack cocaine and $18,000 from Brown’s apartment. Brown asked the court to suppress this evidence. After the court declined, 861 F.Supp. 1415 (E.D.Wis.1994), Brown entered a conditional plea of guilty, Fed.R.Crim.P. 11(a)(2), reserving the right to contest that ruling on appeal. The validity of the seizure therefore is the only question before us.

When arrested, Johnson had been driving someone else’s car. He disclaimed any knowledge of its ownership, saying that a friend had lent it to him. The glove compartment of this car contained a rental agreement for a different auto; the customer was a Fannie Bonds, who gave her residence as Apartment 203 of an address in Brown Deer, Wisconsin. According to state records, Bonds also owned the ear Johnson was driving. The agents found Brown standing immediately south of that address. When they asked him where he lived, he pointed to the northeast. (So the district judge concluded, and this finding is not clearly erroneous.) He claimed to have been standing on the street only because he was locked out of his own apartment. What was the role of Fannie Bonds? Was she another conspirator? Or was she perhaps a victim of auto theft — or worse? The doorbell for Apartment 203 bore the name of Bonds but not Brown. The agents searched Brown incident to the arrest, see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and found a set of keys. One of the agents knocked on the door of Apartment 203 and, receiving no answer, tried the key; it worked. Agents looked quickly in every room and saw what appeared to be cocaine on a night stand; they also saw two sturdy safes. They left the cocaine there and closed the door. One agent set off to secure a search warrant; two others stayed to guard the apartment. While they were waiting, Bonds appeared. She turned out to be Brown’s mother. According to one agent, Bonds consented to a search of the apartment. The district judge, adopting a magistrate judge’s findings on this issue, concluded that Bonds’s consent was ineffective—but it made no difference, because the agent did not seize anything until the warrant arrived.

Brown acknowledges that the warrant was supported by probable cause, but he argues that the initial warrantless entry spoiled the eventual seizure. (The application for the warrant recited that the agents had seen the cocaine and safes.) The district court concluded that the initial entry violated the Constitution but declined to suppress the evidence. First, the court held, by pointing to the northeast Brown disclaimed any interest in the apartment, so the search violated only Bonds’s rights. Second, the court concluded that the agents had probable cause before the initial entry into Apartment 203, making it likely that they would get a warrant anyway; the inevitable-discovery doctrine of Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), therefore disentitled Brown to the remedy of suppression.

The district court’s principal reason is mistaken and the second is questionable. Let us assume that Brown lied to the agents about his habitation. That does not affect that fact that he did live in Apartment 203. Everyone has a legitimate expectation of privacy in his residence. Ours is not like the case of a courier who disclaims interest in a drug-filled suitcase, or a suspect who throws drugs on the street and flees. People are free to expose their belongings to the public, or to throw them away; seizing abandoned suitcases from baggage carousels does not invade anyone’s privacy interest. The privacy interest in a dwelling is not so easily extinguished, see Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984), and a misleading response to an officer’s question is a far cry from a consent to search. Brown therefore has rights under the fourth amendment enforceable in this prosecution. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

As for inevitable discovery: what makes a discovery “inevitable” is not probable cause alone, as the district judge thought, but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the search. Otherwise the requirement of a warrant for a residential entry will never be enforced by the exclusionary rule. A warrant requirement matters only when the police have probable cause, because otherwise they can’t get one. (Under the second clause of the fourth amendment, “no Warrants shall issue, but upon probable cause”.) To say that a warrant is required for a search is to say that the police must get judicial approval before acting. Yet if probable cause means that discovery is inevitable, then the prior-approval requirement has been nullified. An argument can be made that probable cause is enough to make a daylight search reasonable, that the second clause of the fourth amendment disfavors warrants, and that those “who have viewed the fourth amendment primarily as a requirement that searches be covered by warrants, have stood the amendment on its head.” Telford Taylor, Two Studies in Constitutional Interpretation 46-47 (1969). See also Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv.L.Rev. 757, 762-70, 801-11 (1994). But this is not the Supreme Court’s current understanding. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), overruling United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).

Although some language in United States v. Buchanan, 910 F.2d 1571 (7th Cir.1990), can be read to say that probable cause alone makes discovery under a warrant “inevitable,” that language was a response to the parties’ arguments and does not enlarge the inevitable-discovery doctrine. Buchanan’s principal argument on appeal was that the warrant had not been supported by probable cause; his willingness to let the case turn on the answer to that question does not imply that for all future cases probable cause establishes inevitable discovery. See United States v. Johnson, 22 F.3d 674, 684 (6th Cir.1994). We need not decide whether these agents inevitably would have obtained a warrant without the quick search of the premises — as they well might, had Brown told them that he lived in Apartment 203 and that Bonds is his mother — because we conclude that the agents’ once-over did not violate Brown’s rights given the facts as the agents reasonably supposed them to be.

Special Agent Meliek testified that the officers entered Apartment 203 because they were concerned about Bonds’s safety. The district judge believed Meliek, adding that the discovery of the apartment key in Brown’s possession, coupled with his implicit claim that he lived elsewhere, would lead a reasonable agent to take precautions. 861 F.Supp. at 1420. Nonetheless, the judge concluded, the entry violated the fourth amendment because the agents lacked exigent circumstances — which the judge.understood to be present only if there was a powerful reason to believe that Bonds was in “immediate danger.” We do not think that the police must stand outside an apartment, despite legitimate concerns about the welfare of the occupant, unless they can hear screams. Doubtless outcries would justify entry, Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), but they are not essential. The less intrusive a search, the less justification is required. This is true not only of street stops, see United States v. Chaidez, 919 F.2d 1193 (7th Cir.1990), but also of residential searches. See United States v. Concepcion, 942 F.2d 1170 (7th Cir.1991) (insertion of key in keyhole is a “search” but requires only slight justification). The question posed by the fourth amendment is not whether it would have been reasonable to get a warrant, but whether the search itself was reasonable. United States v. Edwards, 415 U.S. 800, 807, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771 (1974). Entry into a domicile usually requires a search warrant, Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which can be had only on probable cause, but quick inspections may be justified by lower degrees of suspicion. Consider the “protective sweep” cases, of which Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), is a prime example. Buie held that the police may walk through rooms adjacent to the one in which they make an arrest, to ensure that no danger lurks within. Cf. Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). The officers need not demonstrate any danger; they may look simply as a precaution. Just so here; with some (though far from strong) reason to fear for Bonds’s safety, the agents could take some steps to protect her. See Murdock v. Stout, 54 F.3d 1437, 1442 (9th Cir.1995) (“only a mild exigency need be shown where entry can be accomplished ... without physical destruction of property.”).

These agents had legitimate concerns about Bonds’s safety. Had they known then what we know now — that Brown lived in Apartment 203 and that Bonds is his mother (dispelling concerns about her safety) — they would have required a warrant to enter. But at the time objective indicators did not suggest that Apartment 203 was his residence. He had pointed elsewhere, and he did not claim any interest in the place; the doorbell named Bonds as the occupant. The reasonableness of a search depends on what the police know at the time, not on what they learn later. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2798, 111 L.Ed.2d 148 (1990). When the agents entered Apartment 203, they may have doubted Brown’s disclaimer, but Brown himself — the most ardent guardian of his privacy, one might suppose— had supplied no reason to believe that they were invading his abode. If as Brown said he was locked out of his own apartment, then a key that opened the door of Apartment 203 could not have led to Brown’s residence. Our point is not that Brown surrendered his privacy interest in Apartment 203 but that the facts then known to the agents painted a different picture. When planning their actions, they were entitled to concentrate on Bonds’s interests, which included safety as well as seclusion.

An officer on the beat must be allowed latitude to make snap judgments, subject to the requirement of reasonableness. The decision to take a brief look inside Apartment 203 was a reasonable one, carried out reasonably (the agents did not tarry longer than required to fulfil their purpose). Entry indeed was practically invited by Brown. Had he told the agents the truth, that not only would have dispelled concern about Bonds but also would have sent them scampering to court for a warrant, protecting everyone’s entitlements. Brown’s arrest for a cocaine offense would have supplied probable cause to search his residence for drugs, proceeds, and weapons; the officers did not need any extra information to obtain legitimate entry. Having credited Agent Meliek’s statement that he entered in advance of the warrant only out of concern for Bonds’s safety, see 861 F.Supp. at 1420, the district judge should have reached the natural conclusion that the search was reasonable. Only a legal error— the supposition that entry cannot be justified without proof of “immediate danger” — led the judge to do otherwise. When reviewing decisions about searches, we defer to the district judge’s findings of fact and to its ultimate conclusions about the propriety of the search. United States v. Spears, 965 F.2d 262 (7th Cir.1992). We have done both today, adding only the principle that the victorious party may defend its judgment with any properly preserved argument, whether or not the district judge accepted it. United States v. New York Telephone Co., 434 U.S. 159, 166 n. 8, 98 S.Ct. 364, 369 n. 8, 54 L.Ed.2d 376 (1977) (applying this rule to a case under the fourth amendment); Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 439 (7th Cir.1987).

AFFIRMED.