IN A 2-1 DECISION, THE D.C. CIRCUIT OVERTURNS A LOWER COURTíS RULING THAT WASHINGTON, D.C., POLICE WERE IMMUNE FROM CLAIMS THAT THEY UNCONSTITUTIONALLY CONDUCTED A WARRANTLESS SEARCH BASED UPON CONCERNS THAT A U.S. ARMY VETERANíS MILITARY EXPERIENCE MEANT THAT HIS HOME COULD CONTAIN A DANGEROUS DEVICE
By Jim Chapman, Attorney, Public Agency Training Council
In Corrigan v. District of Columbia, ___ F.3d ___, 2016 WL 6595976 (D.C. Cir. Nov. 8, 2016), the United States Court of Appeals for the District of Columbia Circuit reversed a lower court’s ruling that found that Washington, D.C., police officers were immune from a civil suit filed against them by a U.S. Army veteran who alleged that the D.C. police had violated his Fourth Amendment rights by searching his home twice without a warrant. On appeal, the D.C. Circuit found that there was no reasonable basis for the search and reversed the District Court’s dismissal of the case. The relevant facts are as follows.
Plaintiff Matthew Corrigan is an Army Reservist and an Iraq war veteran. On the night of February 2, 2010, suffering from sleep deprivation, Corrigan inadvertently called the National Suicide Hotline. When he told the Hotline volunteer that he was a veteran diagnosed with PTSD, she asked whether he had been drinking or using drugs and whether he owned guns. Corrigan assured her that he was only using his prescribed medication and was not under the influence of any illicit drugs or alcohol; he also admitted that he owned guns. The volunteer told him to “put [the guns] down,” and Corrigan responded: “That’s crazy, I don’t have them out.” Despite Corrigan’s assurances that his guns were safely stored, the volunteer repeatedly asked him to tell her that “the guns are down.” When asked if he intended to hurt himself or if he intended to “harm others,” he responded “no” to both questions. Frustrated, Corrigan eventually hung up, turned off his phone, took his prescribed medication, and went to sleep. The Hotline volunteer proceeded to notify the D.C. Metropolitan Police Department (“MPD”).
Later that night, officers were dispatched to Corrigan’s home based upon an “attempted suicide.” Certain undisclosed “information” led them “to believe the subject was possibly armed with a shotgun.” Upon arrival, the officers thought they detected a “strong odor” of natural gas and contacted the gas company which turned off the gas. The officers contacted Lieutenant Glover at home, and he gave orders to declare a “barricade situation,” which meant that the emergency response team (“ERT”) also went to Corrigan’s home. The MPD Command Information Center advised that Corrigan, a white male, age 32, had no known criminal record, and there were no outstanding protective orders against him. An ERT investigator learned that Corrigan was a U.S. Army combat veteran who had served recently during the Iraq war and owned a rifle and several handguns. Additionally, Corrigan had recently terminated a romantic relationship and was under psychiatric care for PTSD and depression. Corrigan also had a dog.
At 2:00 a.m., the ERT assumed tactical control of the situation. At 2:10 a.m., the MPD began to secure the perimeter around Corrigan’s home, including evacuating his neighbors. At 2:30 a.m., Lieutenant Glover arrived on the scene and called on the Explosive Ordnance Disposal Unit (“EOD”) to respond. According to Lieutenant Glover’s testimony, Corrigan’s upstairs neighbor, who was his landlady, had told MPD officers that Corrigan occasionally had overnight guests, including an ex-girlfriend. An officer had reached the ex-girlfriend by cell phone, and she said Corrigan was a veteran taking prescribed medication for PTSD, had expertise in IEDs, and trained others in detecting and mitigating IED incidents. She also recalled seeing a green duffel bag containing “military items” in Corrigan’s home that she had been told “not to touch” because “they were his guns and military stuff.”
Around 3:00 a.m., MPD negotiators attempted to speak with Corrigan by dialing his cell phone number, calling his name over a public address system, and knocking or kicking his front door. The MPD had no indication, however, that Corrigan’s failure to answer the door was suspicious. The officers had been told by his landlady and ex-girlfriend that Corrigan was likely sleeping, having taken his prescribed medication; his voicemail message stated “Hi, you’ve reached Matt, if I’m unavailable, I’m probably asleep.” Indeed, his landlady, upon being advised that the reason for the police presence was Corrigan’s attempted suicide, had insisted that was “outrageous” and repeatedly told the MPD officers that there was “a big misunderstanding” because she had known Corrigan for two years and had “never felt more comfortable with a neighbor in [her] life.” She had explained to the officers that Corrigan had guns because he was in the military and that his home had electric, not gas, appliances.
Corrigan testified at his deposition that, around 4:00 a.m., he became aware of someone kicking at his front door and, then, his back door and was “terrified,” feeling he was being “hunted.” When he turned on his cell phone at 4:16 a.m., he received a flood of voicemails. Corrigan returned the call of the detective who was one of the MPD negotiators. Corrigan initially said that he was at another address because he was scared but within minutes admitted that he was at home. Having noticed the flood light and all the police officers at the front and back of his home, he told the negotiator he was coming outside but needed to put on clothes because of the fallen snow. He described the clothes he would be wearing and that his cell phone would be in his left hand when he came out so the police would not shoot him because they thought he had a gun.
Exiting his home within 20 minutes of first speaking to the negotiator, Corrigan closed and locked his front door so his dog would not get out and no one could enter his home. In order to appear as non-threatening as possible, he knelt on the ground and lay on his back. MPD officers immediately secured his hands with a white “zip-tie,” searched his person (on which he had only a military identification card and his cell phone), and took him to a police vehicle where he was told he had not committed any crime and the officers only wanted to talk to him. Eventually, he was taken to a Veterans Hospital where he voluntarily admitted himself for PTSD symptoms triggered by the night’s events.
When Corrigan was questioned prior to being removed from the scene by the MPD, he refused to give his house key to an MPD officer or to consent to the MPD entering his home. The officer who had asked for his key told him: “I don’t have time to play this constitutional bullshit. We’re going to break down your door. You’re going to have to pay for a new door.” Corrigan responded, “It looks like I’m paying for a new door, then. I’m not giving you consent to go into my place.” After Corrigan was in MPD custody, Lieutenant Glover ordered the ERT, led by Sergeant Pope, to break in Corrigan’s home to search for “any human threats that remained or victims.” Glover testified that he thought the “sweep” of Corrigan’s home was necessary because the officer who spoke to Corrigan’s ex-girlfriend had not reported whether he asked her whereabouts or visually confirmed her location; Corrigan’s ex-girlfriend or other persons had stayed overnight in his home, so other persons could have been present; a gas leak had been reported and Corrigan had initially “deceived” the police about his location and had told the Hotline volunteer that he did not intend to harm “others,” potentially implying that someone else might be inside. As a matter of course, Glover explained, if an ERT unit is called to a scene it goes inside 99.9% of the time because “[s]tandard protocol” assumes “if there’s one [person inside] there’s two, if there’s two there’s three, if there’s three there’s four, and exponentially on up.”
Upon breaking in Corrigan’s home, the ERT encountered only Corrigan’s dog; no one was found inside and no dangerous or illegal items were in plain view. Nonetheless, Lieutenant Glover thereafter ordered the EOD, led by Officer Leone, to break in Corrigan’s home again to search for “any hazardous materials that could remain on the scene and be dangerous to the public or anybody else in that block or area.” In Glover’s view, a thorough top-to-bottom warrantless search was necessary because the EOD had not cleared Corrigan’s home of any hazardous materials or devices. Glover said he believed such hazards “to be possibly inside” based on Corrigan’s ex-girlfriend’s reference to a duffel bag containing unspecified “military items.” During the second MPD search, EOD officers cut open every zipped bag, dumped onto the floor the contents of every box and drawer, broke into locked boxes under the bed and in the closet, emptied shelves into piles in each room, and broke into locked boxes containing Corrigan’s three firearms. Inside the locked boxes, the EOD found, and seized, an assault rifle, two handguns, a military smoke grenade, a military “whistler” device, fireworks, and ammunition.
Corrigan was charged that day with three counts of possession of an unregistered firearm and seven counts of unlawful possession of ammunition. Later, when he was released from the Veterans Hospital into police custody, he was arraigned in the D.C. Superior Court after spending three days in the central cell block. Corrigan was held at D.C. jail until he was released on his own recognizance on February 19. Upon returning home, Corrigan found his home in complete disarray; the police had left the contents of his bureau drawers and shelves scattered on the floor, his electric stove had been left on, and the front door of his home was left unlocked. On April 19, 2012, the D.C. Superior Court judge granted Corrigan’s motion to suppress the seized firearms and ammunition, finding that the government could not show facts justifying the warrantless entry and search of his home. The District government, then, dismissed all of the charges.
Meanwhile, on February 1, 2012, Corrigan sued the District of Columbia and individual MPD officers, pursuant to 42 U.S. C. § 1983, alleging that the warrantless entries and searches of his home and the seizure of his property from his home violated the Fourth Amendment. The District Court initially denied the defendants’ motion for summary judgment but, thereafter, reconsidered and granted summary judgment. The District Court ruled that no Fourth Amendment violation had occurred in view of the exigent circumstances, and that if the community caretaking doctrine applied to a home, it would also justify the searches. The District Court ruled there had been no violation of a clearly established right, concluding the officers were entitled to qualified immunity.
On appeal, the D.C. Circuit Court held that even assuming, without deciding, that the initial sweep of Corrigan’s home by the ERT was justified under the exigent circumstances and emergency aid exceptions to the warrant requirement, the second top-to-bottom search by the EOD after the MPD had been on the scene for several hours was not. The MPD had already secured the area and determined that no one else was inside Corrigan’s home and that there were no dangerous or illegal items in plain sight. Corrigan had previously surrendered peacefully to MPD custody. The information the MPD had about Corrigan—a U.S. Army veteran and reservist with no known criminal record—failed to provide an objectively reasonable basis for believing there was an exigent need to break in Corrigan’s home a second time to search for “hazardous materials,” whose presence was based on speculative hunches about vaguely described “military items” in a green duffel bag.
The D.C. Circuit Court further stated that, assuming, without deciding, that the community caretaking exception to the warrant requirement applies to a home, the scope of the second search far exceeded what that exception would allow. The D.C. Circuit summarized its holding as follows: “In the end, what the MPD would have the court hold is that Corrigan’s Army training with improvised explosive devices, and the post-traumatic stress disorder he suffers as a result of his military service—characteristics shared by countless veterans who have risked their lives for this country—could justify an extensive and destructive warrantless search of every drawer and container in his home. Neither the law nor the factual record can reasonably be read to support that sweeping conclusion.” Corrigan, ___ F.3d ___, 2016 WL 6595976, at * 1.
The D.C. Circuit Court opined that, because it was clearly established that law enforcement officers must have an objectively reasonable basis for believing an exigency justifies a warrantless search of a home and because no reasonable officer could have concluded such a basis existed for the second more intrusive search, the officers were not entitled to qualified immunity. Accordingly, the D.C. Circuit Court reversed the District Court’s grant of summary judgment and remanded the case for further proceedings.
One judge on the panel, however, dissented and authored a separate opinion finding that the District Court was correct in concluding that the officers were protected from liability based upon the doctrine of qualified immunity. Circuit Judge Brown believed that, contrary to the other two circuit judge’s conclusion, there was no relevant precedent clearly covering the circumstances of Corrigan’s case, and the other circuit judges’ stance puts an “artificially high burden” on police acting in exigent circumstances, wrongly conflating the “objectively reasonable” requirement with the probable cause normally needed to search a home, and creates a bad precedent.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.