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PHILADELPHIA — Police may not “manufacture” an emergency situation to justify the warrantless search of a hotel room, a divided panel of the Third Circuit U.S. Court of Appeals has ruled. The decision in United States v. Coles overturns a conviction for possession of crack cocaine and sharpens a split among the federal circuits in cases where police claim that a warrantless search was justified by “exigent circumstances.” Prosecutors argued that the search of Terrence Coles’ hotel room was valid because police heard rustling sounds and a flushing toilet soon after they announced their presence and therefore feared that evidence was being destroyed. But defense attorney Jeffrey Lindy urged the court to focus on earlier events and argued that the police had no excuse for failing to obtain a warrant prior to approaching the hotel door in the first place. Voting 2-1, the court agreed with Lindy and held that the investigative tactics used by the officers had “impermissibly manufactured the exigency.” Senior Judge Leonard Garth noted that the agents at first used “subterfuge” to gain entry to the hotel room by falsely claiming they were “room service,” and later that they were maintenance workers sent to fix a leak. It was only after those two attempts failed, Garth noted, that the officers identified themselves as police and then heard the toilet flushing. “In identifying themselves as hotel personnel providing ‘room service’ or ‘maintenance,’ the police resorted to subterfuge, clearly manifesting their intention to mislead the occupants into believing that they were not police officers,” Garth wrote in an opinion joined by Third Circuit Judge Julio Fuentes. “At the very least,” Garth wrote, “the actions of the officers at this time demonstrated that the police had no intention of merely investigating matters further or perhaps obtaining consent to search. As the record plainly indicates, the officers decided to enter [the] room … without a warrant. It was that decision to conduct a warrantless entry and search of the room, without any urgent need to do so, that impermissibly created the very exigency relied upon by the government in this case.” Garth noted that the police had Coles’ room under constant surveillance and had no reason to believe that Coles had detected their presence. But in dissent, Judge Jane Roth complained that the majority was misreading a U.S. Supreme Court decision and that its holding “imposes a standard for police behavior that is not derived from the Constitution.” Roth said she would have upheld the search because none of the actions by police had violated the Fourth Amendment prior to their hearing the flushing toilet. According to court papers, Coles checked into the Hawthorne Suites Hotel in Philadelphia in June 2002, initially saying he was staying for a weekend, but later saying he would stay for 10 days. After about a week, a hotel manager sought out Coles to discuss payment and let himself into Coles’ room to determine if it was still occupied. The manager testified that he called the FBI because he suspected he had seen evidence of drug dealing, including plastic bags, vials and a white substance. When agents arrived, the manager unlocked Coles’ room and allowed the agents to enter. Prosecutors conceded that the first entry by the officers was illegal and insisted they were not relying on anything seen during that search. Instead, they said, police set up a surveillance post in a room across the hall and later watched as Coles and another man entered the room, one carrying a backpack. Garth found that the officers then decided to enter the room despite not having a warrant, but that their first attempts at subterfuge failed. When an officer knocked and announced that he was “room service,” Coles told him he had not ordered anything and refused to open the door. The same officer later knocked again and said he was from maintenance and was sent to fix a reported leak. But Coles again refused to open the door, saying there was no leak. Finally, the officer knocked a third time, more forcefully, identifying himself as a police officer and telling the occupants to “open the door, this is the police.” At that point, officers testified that they heard the sounds of rustling and running footsteps. One officer attempted to open the door using an electronic passkey, but was unable to gain access because there was a bar latch over the door. After partially opening the door, officers said they heard the sound of a toilet flushing and the sounds of more running. Coles eventually opened the door, and officers testified that they discovered several containers of crack cocaine and $2,000 in cash. After Coles was indicted, Lindy moved to suppress the search, but Chief U.S. District Judge Harvey Bartle III refused, concluding that police had exigent circumstances — the imminent destruction of the evidence — that justified the warrantless search. Now the Third Circuit has reversed, finding that an exigent circumstances rationale cannot be used where police themselves unreasonably create the emergency. Garth found that since the police already had probable cause — based on the hotel manager’s statements — they could have obtained a search warrant. Prosecutors argued that the police properly used a “knock and talk” investigative tactic and forced their way into the room only when they became aware that Coles and his cohort were destroying evidence. Garth disagreed, saying that since police already had all the probable cause they needed, they had “no legitimate reason to utilize the ‘knock and talk’ procedure.” The evidence, Garth said, showed there was “no urgency or need for the officers to take immediate action.” Instead, Garth said, it was only when the officers knocked on the door the third time and announced their presence that they heard sounds indicating that evidence was being flushed down the toilet. “But that exigency did not arise naturally or from reasonable police investigative tactics,” Garth said. “Quite to the contrary, the officers, after their pretextual announcements had failed to gain entry to [the] room … deliberately created the exigency by knocking on the door … and demanding entry.” But in dissent, Roth complained that “the majority’s decision to focus the exigency analysis on the subjective intent of the investigating officers, and the subsequent, haphazard reaction the investigation generates on the part of the alleged criminal, produces the ‘could’ve, should’ve, would’ve’ analysis that is so anathema to our judicial role.” Roth said the majority had ignored the point that “knocking and attempting to engage a person in conversation are not violations of the Fourth Amendment,” and likewise that entry into a dwelling in the face of exigent circumstances when the police have probable cause is also not a violation of the Fourth Amendment. “The majority feels, however, that these two otherwise constitutional actions performed in sequence are greater than the sum of their parts and, therefore, constitute a violation of the Fourth Amendment because the police could have and, consequently, should have waited to obtain a warrant,” Roth wrote. Roth said she would have taken a different approach, focusing on the legality of each instance in which the police interacted with Coles. “Since none of the three interactions violated the Fourth Amendment, and since entry was made only on hearing the toilet flushing, I would affirm the district court’s denial of Coles’ motion to suppress the physical evidence,” Roth wrote. Shannon P. Duffy is a reporter with , a Recorder affiliate based in Philadelphia.

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