Facts
On January 27, 2021, Officer Brian Bonenberger of the San Antonio Police Department was dispatched to an apartment complex in response to an anonymous caller reporting a gunshot and “a bunch of yelling down the stairs.” He was dispatched at 6:47 p.m. and arrived at 6:52 p.m. Upon arrival, Officer Bonenberger walked the area and did not immediately see anyone needing help. A woman walking her dog told him she lived in apartment #2206 and thought she heard a gunshot from directly above her second-floor apartment or potentially outside. Based on that information, Officer Bonenberger went to #2306, directly above #2206, but no one answered the door, and the officer heard no activity and saw no signs of disturbance. Officer Bonenberger then drove to a parking lot across from the apartment complex, wrote the findings in his incident report, and closed the call.
At 7:18 p.m., another call, by Amanda Zuniga, came through reporting a shooting in progress at the same address noted in the prior anonymous call. The dispatch for that call was sent out as an emergency, making all officers aware the situation was serious. Officer Bonenberger requested that the dispatcher add him to the call since he had just been at the same building. He was assigned at 7:21 p.m. and arrived at 7:23 p.m. Once he arrived, Officer Bonenberger and another officer went to #2202, Zuniga’s apartment, and confirmed Zuniga made the call reporting a gunshot. There, the officers also confirmed with Zuniga that she heard what she believed to be a gunshot. Zuniga also reported she heard “some commotion and heard people leaving the next door apartment,” #2204.
Officer Bonenberger knocked on #2204’s door, but nobody answered, and he didn’t hear anything coming from inside. Shortly before 7:24 p.m., Officer Bonenberger and the other officer returned and entered Zuniga’s apartment, with her consent, to investigate a bullet hole, which Zuniga said was in the wall between her apartment and apartment #2204. One of the officers asked Zuniga if she knew who lived in #2204, and she responded, “There’s a black guy, his girlfriend, and a one- year-old.” Zuniga reiterated that after she heard the gunshot, she heard someone running or some commotion, and people talking and going down the stairs. Shortly after, Zuniga found the bullet hole in her wall, which had not been there previously.
Officer Bonenberger inspected the bullet hole in the wall and the surrounding area of Zuniga’s apartment. He observed there was a long ricochet mark on the carpet and damage where the bullet struck a computer. As a result, he believed the bullet came through the wall from #2204 and into #2202, skipped off the carpet, and struck a computer at a low angle. He added that the mark on the carpet was in line with the path of the bullet, and he found a portion of the bullet lodged in the computer case. At a later suppression hearing, Officer Bonenberger testified he believed the bullet had either come from #2204 or from outside and through #2204. Though he acknowledged that he had no ballistics experience, could only see drywall in the hole, and did not use a pen or flashlight to confirm if the hole went through to the next apartment, he believed the bullet came from #2204, based on his experience as a police officer, reservist, and armor officer. He also testified that Zuniga told him she believed a child lived in #2204. But he admitted that, at 7:35 p.m., he told another officer “a long time” had already passed, and “there’s probably no one there.”
After inspecting the bullet hole, Officer Bonenberger left Zuniga’s apartment and began coordinating with other officers on the scene to determine who was in #2204 and whether someone could be injured in that apartment. Due to the believed path of the bullet, the officers suspected there was a gun in #2204. The officers then positioned an armed police officer outside the front door of #2204. Officers also tried to determine which window belonged to #2204 to try to detect any movement inside the apartment and to make sure no one attempted to escape through the window. Another officer, Officer Chad Bendele, was asked to patrol the back of the property to see if anyone was on the balconies or injured. At 7:29 p.m., while walking the perimeter of the apartment complex, Officer Bendele encountered a male individual on the phone, sitting on a bench, who identified himself as Jonte Turner. Turner stated he lived in #2204 but hadn’t been inside and allowed officers to search him.
Sergeant William Roberts arrived around 7:37 or 7:38 p.m., approximately 20 minutes after Zuniga’s phone call reporting a gunshot. According to protocol, officers at the scene were not permitted to take action until a supervisor (here, Sergeant Roberts) was on the scene. After being briefed, Sergeant Roberts began to clear units adjacent to #2204 at 7:39 p.m. As Zuniga was evacuating, she commented that she hoped everything was okay next door and stated, “They have a baby in there.” At approximately 7:40 p.m., Sergeant Roberts learned Turner had a criminal history and began speaking with Turner one minute later. Turner again stated he lived in #2204, but it was his “Mom’s friend’s apartment.” Turner then stated no one was in the apartment and told Sergeant Roberts that his apartment “was the one with the lights out.” Sergeant Roberts asked if officers could search the apartment to make sure no one had broken in and started firing shots. Turner denied consent to search the apartment. Sergeant Roberts explained officers wanted to make sure no one was in the apartment who was dangerous, and Turner again stated no one was in the apartment.
After Sergeant Roberts indicated the officers would get a warrant to search the apartment, Turner offered to go in the apartment to verify no one was inside, but he would not consent for officers to enter with him. Sergeant Roberts explained why that suggestion would not protect the safety of officers and other residents. Sergeant Roberts then spoke with another sergeant to discuss options, such as a protective sweep and a warrant. They discussed the trajectory of the bullet and reiterated their belief that someone in #2204 had fired through the wall. Sergeant Roberts returned to Turner at 7:47 p.m., who again denied consent to search the apartment. Officers again searched Turner and removed his keys and a stack of money. Sergeant Roberts and Officer Bonenberger then called Detective Mark Corn from 7:50 p.m. to 7:52 p.m. During this call, Sergeant Roberts and Detective Corn determined a protective sweep was necessary for community safety. Sergeant Roberts did not believe they could wait the estimated one hour to get a search warrant before going into #2204.
At 7:54 p.m.—more than one hour after the first anonymous call reporting a gunshot but only just over fifteen minutes after Sergeant Roberts’s arrival on the scene—Sergeant Roberts used Turner’s keys, which had been obtained from the officers’ prior, consensual search of Turner, to enter #2204. Sergeant Roberts unlocked the door, announced police presence, and pushed the door open. Upon entering the apartment, the officers saw two pistols and loaded magazines in plain view on top of the kitchen counter, and the officers called out the presence of other firearms observed in plain view during the sweep. Officers also saw a bullet hole in the wall adjoining #2202. The officers opened closets, but not drawers or shelves, to ensure the apartment was clear. No one was found inside the apartment during the protective sweep. Officers concluded the sweep and left the apartment by 7:55 p.m. The sweep lasted a total of 99 seconds.
After Sergeant Roberts instructed everyone to leave the apartment, Officer Bendele placed Turner under arrest, and Officer Bonenberger called Detective Corn to get a search warrant. After the apartment had been cleared and before the warrant was returned, officers returned to the apartment multiple times, looking in the same closets as before and additional closets, and at 8:24 p.m., the officers continued to inspect the bullet hole through the wall. Detective Ronald Soto obtained the search warrant, based on information from Detective Corn, and stated in the affidavit that items constituting evidence of the commission of the offense of deadly conduct, in violation of § 22.05 of the Texas Penal Code, were suspected to be inside #2204. The affidavit included the following factual summary to establish probable cause for the search warrant:
San Antonio Police Officers responded to the listed location for a Deadly Conduct. When officers arrived at the scene, they discovered someone inside apartment #2204 shot a firearm that went through his wall into the adjacent apartment. The bullet went into apartment #2202, where two people reside. When officers arrived, they were given a key to apartment #2204 by one of the occupants. To secure the scene, officers conducted a protective sweep of apartment #2204 and did not find anybody inside. During the protective sweep, officers discovered several firearms inside the apartment that someone potentially used to commit the crime. Officers were unable to obtain written consent to process the crime scene, and this case is under the San Antonio Police Department case number SAPD21017537.
The warrant was signed at 10:01 p.m., roughly two hours after the initial search, and Detective Soto took the warrant to the apartment complex. During the warranted search, officers found marijuana, which they seized along with five or six firearms and other items. The district court denied Turner’s motion to suppress all items. The 5th affirmed.
Analysis
A. Exigent circumstances
Under the exigent-circumstances exception, officers may enter a person’s home without a warrant if they can show both exigent circumstances and probable cause that contraband is inside or a crime is taking place.
To meet the first prong of the exigent-circumstances exception, the government must show that the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. For example, exigent circumstances may permit officers to enter a home to prevent the imminent destruction of evidence, to pursue a suspect, to protect against immediate safety risks to officers and others, or where firearms are present.
There is no set formula for determining when exigent circumstances will justify a warrantless entry, but we consider five factors: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant (2) the reasonable belief that contraband is about to be removed; (3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought; (4) the information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of it and to escape are characteristics in which those trafficking in contraband generally engage.
The second and fifth factors, contraband about to be removed and ready destructibility of contraband, weigh against the government’s search of Turner’s apartment, as guns are not the type of contraband that one would expect to be removed or destroyed during the time it takes to obtain a warrant with officers stationed outside the apartment. However, the other three factors—urgency and the time to obtain a warrant, possibility of danger, and suspects’ awareness that the police are on their trail—weigh in favor of the search.
Here, officers responded to two shots-fired calls, which, if accurate, necessarily involved a firearm of some sort. Officer Bonenberg interviewed the individual who made the second call and another individual who heard gunshots; learned that three people, including Turner’s girlfriend and a baby, lived in #2204; and inspected the bullet hole and trajectory of the bullet from the wall shared with #2204. The officers found Turner outside the apartment, and Turner had a criminal history and told them it was his mom’s friend’s apartment— not his.
Sergeant Roberts learned at least three facts that heightened the exigency: Turner said he hadn’t been in the apartment (and, if true, Turner couldn’t have known who had been inside or what had occurred to lead to the reported gunshot); Turner didn’t own the apartment; and Turner wanted to check on the apartment without the officers. Accordingly, the officers could reasonably discredit Turner’s assertion that no one was in the apartment.
We do not draw any bright lines or condone all one-hour-later warrantless searches. Whether exigent circumstances exist is a fact-specific inquiry, and here, the specific combination of facts suggests exigent circumstances.
Even under exigent circumstances, law enforcement must also show probable cause that contraband is inside or that an illegal act is taking place before entering without a warrant. The officers here had probable cause. There was ample reason for the officers to believe that there was an unaccounted-for firearm in #2204. Although the officers could not be “certain,” they could reasonably believe that a firearm could still be in the apartment, let alone an accomplice.
Because both exigent circumstances and probable cause existed, the warrantless entry into Turner’s apartment did not run afoul of the Fourth Amendment.
B. Protective sweep
We next turn to whether the officers conducted a permissible protective sweep of Turner’s apartment. The protective sweep doctrine allows government agents, without a warrant, to conduct a quick and limited search of premises for the safety of the agents and others present at the scene.
A protective sweep is justified where: (1) the police have not entered (or remained in) the home illegally and their presence within it is for a legitimate law enforcement purpose; (2) the protective sweep is supported by a reasonable, articulable suspicion . . . that the area to be swept harbors an individual posing a danger to those on the scene; (3) the legitimate protective sweep is not a full search but is no more than a cursory inspection of those spaces where a person may be found; and (4) the duration of the protective sweep, first, lasts no longer than is necessary to dispel the reasonable suspicion of danger, and, second, lasts no longer than the police are justified in remaining on the premises. An arrest is not required, so long as officers are otherwise lawfully in the home.
As discussed above, the officers were lawfully in Turner’s apartment due to exigent circumstances and had probable cause to believe that a firearm and a potential shooter was inside. As to the scope of the sweep, the officers looked only in places where a person could be hidden—such as closets but not cupboards or drawers. The firearms and magazines were in plain view, such as on the kitchen counter or in closets that were swept. Additionally, the sweep was no longer than necessary, lasting approximately one and a half minutes.
As Turner notes, the officers returned to the apartment before getting a warrant. In these subsequent searches, officers shined flashlights into additional closets, such as one housing a washing machine and dryer, and returned to closets and rooms they had previously declared “clear” in the initial search. Even if these subsequent searches—which were no longer exigent or protective—violated the Fourth Amendment, Turner makes no argument that they provided any new evidence that Turner seeks to suppress.
Because exigent circumstances permitted entry and the officers’ initial search was limited to a protective sweep, we affirm the district court’s denial of Turner’s motion to suppress based on a warrantless search of his apartment.
https://www.ca5.uscourts.gov/opinions/pub/23/23-50461-CR0.pdf