United States v. Rhiger

F I L E D
United States Court of Appeals
Tenth Circuit

JAN 14 2003
PUBLISH PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 01-2246

JOEL DEAN RHIGER,

Defendant-Appellant,

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-99-782-BB)

Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for
Plaintiff-Appellee.

Before SEYMOUR, BALDOCK and BRISCOE, Circuit Judges.

SEYMOUR, Circuit Judge.
 Joel Rhiger appeals his conviction for conspiring to manufacture

methamphetamine in violation of 21 U.S.C. § 846 and for possessing

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

We affirm.

I

Prior to Mr. Rhiger’s arrest, federal drug agents observed him driving Carl

Baker and another companion to several locations where Mr. Baker and the

companion bought materials used to manufacture methamphetamine. Agents also

learned that less than a week earlier, Mr. Rhiger had purchased ingredients used

to make methamphetamine. The agents then tracked Mr. Rhiger and Mr. Baker to

the home of Randy Brown, where they observed the two men entering the

residence with the purchased materials. After watching the home for an hour, the

federal agents detected the smell of cooking methamphetamine. Fearing an active

methamphetamine lab was in the residence and could explode, the agents entered

the home without a warrant. They found an active lab in the garage, immediately

arrested Mr. Baker, and arrested Mr. Rhiger after finding him hiding in the

shower in the master bathroom. The agents shut down the lab, secured the

residence, and took steps to obtain a warrant so they could conduct a further

search of the building.

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 Mr. Rhiger, Mr. Baker, and Mr. Brown were indicted for the

methamphetamine crimes arising out of the evidence obtained in the search of the

home. Mr. Rhiger’s two co-defendants pled guilty, and a jury convicted Mr.

Rhiger on all counts.

On appeal, Mr. Rhiger challenges the district court’s denial of his motion to

suppress evidence obtained by agents during the warrantless search of Mr.

Brown’s home. He asserts the district court erred in finding that exigent

circumstances justified the agents’ entry of the Brown residence. Mr. Rhiger also

contends the district court erred in permitting a government agent to testify

regarding the agent’s detection of methamphetamine odors on Mr. Rhiger’s

clothing.

II

As an initial matter, the government contends that Mr. Rhiger has no

standing to object to the search of Mr. Brown’s house. We must therefore decide

whether Mr. Rhiger’s individual constitutional rights were affected by the agents’

actions. See United States v. Rubio-Rivera, 917 F.2d 1271, 1274 (10th Cir. 1990).

“To so demonstrate in the context of a search, the defendant must show that he

had a subjective expectation of privacy in the premises searched and that society

is prepared to recognize that expectation as reasonable.” United States v.

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Higgins, 282 F.3d. 1261, 1270 (10th Cir. 2002) (internal quotation omitted). We

review de novo whether Mr. Rhiger’s expectation of privacy in the searched

premises was one society would consider reasonable. Id.

While Mr. Rhiger did not permanently reside with Mr. Brown, he testified

he had known Mr. Brown for about two weeks and stayed overnight at Mr.

Brown’s residence “a couple, three times,” rec., vol. V at 240, “four tops,” id. at

253, when he was too intoxicated to drive home, and that he and Mr. Brown “hit

it off” because of their common interest in maintenance work, id. at 239. Mr.

Brown’s neighbor, Paul Dressendorfer, testified that for several days he “never

saw [Mr. Rhiger’s car] leave” Mr. Brown’s house. Id., vol. IV at 74. Receipts

left by Mr. Rhiger were found in the Brown residence. Moreover, Mr. Rhiger

testified that on the day the federal agents searched the Brown home, he had

entered the house in Mr. Brown’s absence and retired to Mr. Brown’s bedroom to

take a nap. The question is thus whether Mr. Rhiger has standing as a social

guest to challenge the government’s search of Mr. Brown’s home.

Our decision is guided by the Supreme Court’s reasoning in Minnesota v.

Carter, 525 U.S. 83 (1998). Although the Court did not specifically decide the

issue we face, a close reading of the opinion persuades us that a social guest’s

expectation of privacy is constitutionally protected.

The majority in Carter ruled that an individual does not possess an

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expectation of privacy to challenge the search of another’s property when he or

she is present solely for commercial or business reasons. But the Court drew a

clear distinction between the status of individuals present at a residence for social

purposes and those present for business or commercial matters. Id. at 90-91.

Referring to Minnesota v. Olson, 495 U.S. 91, 96-97 (1990) (overnight guests

possess an expectation of privacy in searched premises), the Court pointedly

contrasted the status of a guest who has a “degree of acceptance into the

household” from a guest present for “purely commercial” reasons, noting the

former possessed a far greater expectation of privacy in the premises than the

latter. Carter, 525 U.S. at 90.

Our reading of the majority’s distinction between social and commercial

guests is buttressed by the concurring opinions of Justices Kennedy and Breyer

and themes in Justice Ginsburg’s dissent. Justice Kennedy joined the majority’s

opinion because its reasoning was “consistent with [his] view that almost all

social guests have a legitimate expectation of privacy, and hence protection

against unreasonable searches, in their host’s home.” Id. at 99 (Kennedy, J.,

concurring). Describing which social guests could benefit from such protection,

Justice Kennedy noted guests must establish they have a “meaningful connection”

to the residence. Id. at 101. He further urged in partial support of Justice

Ginsburg’s dissent “that reasonable expectations of the owner . . . [should be] . . .

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shared, to some extent, by the guest. This analysis suggests that, as a general

rule, social guests will have an expectation of privacy in their host’s home.” Id.

at 102. Justice Ginsburg’s assertion that any type of guest should be able to

“share his host’s shelter against unreasonable searches and seizures,” id. at 106

(Ginsburg, J., dissenting), received additional support from Justice Breyer. While

he joined the majority’s opinion on other grounds, he nonetheless stated, “I agree

with Justice Ginsburg that respondents can claim the Fourth Amendment’s

protection.” Id. at 103 (Breyer, J., concurring).

Our determination that a social guest has a sufficient expectation of privacy

to challenge unreasonable searches of his host’s home is further bolstered by the

Court’s reference in Carter to Jones v. United States, 362 U.S. 257 (1960). The

Court acknowledged Jones’ specific ruling “that ‘anyone legitimately on the

premises where a search occurs may challenge its legality’ was expressly

repudiated in Rakas v. Illinois, 439 U.S. 128 (1978).” Carter, 525 U.S. at 89-90

(citing Jones, 362 U.S. at 267). Nonetheless, the Court agreed with Jones’

ultimate conclusion that the search of an apartment belonging to the defendant’s

friend, where the defendant slept there “maybe a night,” Jones, 362 U.S. at 259,

kept some clothing there, and entered at his own will, violated the defendant’s

Fourth Amendment rights. Carter, 525 U.S. at 89-90. See also Rakas, 439 U.S.

at 142 (“We think that Jones on its facts merely stands for the unremarkable

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proposition that a person can have a legally sufficient interest in a place other

than his own home so that the Fourth Amendment protects him from unreasonable

government intrusion into that place.”); Olson, 495 U.S. at 97-98 (noting and

approving Court’s reaffirmation in Rakas of Jones’ factual holding).

While the Court did not specifically decide in Carter that a social guest can

challenge a warrantless search of his host’s home, the majority decision, coupled

with the concurrences of Justices Kennedy and Breyer, and the dissent of Justice

Ginsburg, persuade us that Mr. Rhiger had a legitimate expectation of privacy as a

social guest in Mr. Brown’s home. See also United States v. Pollard, 215 F.3d

643, 647-48 (6th Cir. 2000) (defendant had reasonable expectation of privacy in

premises where he had friendship with homeowner, occasionally spent night at

residence, kept some personal belongings there, and was permitted to be in home

while owners were absent). Mr. Rhiger’s regular presence at the home, his

overnight stays, the discovery of his receipts in the house, and his comfort in

entering the residence unannounced and taking a nap, all support our

determination that Mr. Rhiger had an ongoing and meaningful connection to Mr.

Brown’s home as a social guest. Therefore, Mr. Rhiger has standing to challenge

the government’s search and seizure of evidence from the Brown residence.

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 III

Given Mr. Rhiger’s legitimate expectation of privacy in the Brown

residence, we address whether the district court properly denied Mr. Rhiger’s

motion to suppress evidence based on its determination that exigent circumstances

justified the agents’ warrantless entry into the Brown home. In reviewing the

district court’s ruling, we examine the “court’s factual findings under the clearly

erroneous standard and view the evidence in the light most favorable to the

district court’s findings. The ultimate question regarding the reasonableness of

the search is a question of law which we review de novo.” United States v. Parra,

2 F.3d 1058, 1063 (10th Cir. 1993) (internal citation omitted). Based on this

standard, we conclude the district court properly denied Mr. Rhiger’s motion to

suppress.

“It is a basic ‘principle of Fourth Amendment law’ that searches and

seizures inside a home without a warrant are presumptively unreasonable.”

Payton v. New York, 445 U.S. 573, 586 (1980) (citing Coolidge v. New

Hampshire, 403 U.S. 433, 477-78 (1971)). “In terms that apply equally to

seizures of property and to seizures of persons, the Fourth Amendment has drawn

a firm line at the entrance to the house. Absent exigent circumstances, that

threshold may not reasonably be crossed without a warrant.” Id. at 590. See also

United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir. 1992); United States v.

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Aquino, 836 F.2d 1268, 1271 (10th Cir. 1988).

The government maintains exigent circumstances existed because the

federal agents reasonably believed an active methamphetamine lab in the Brown

home posed a threat of explosion to its inhabitants, to the agents present at the

scene, and to the other residents in Mr. Brown’s immediate neighborhood.

Threats to public safety are widely accepted as one of the exigent circumstances

exceptions to the Fourth Amendment’s warrant requirement. See Warden v.

Hayden, 387 U.S. 294, 298-99 (1967) (“The Fourth Amendment does not require

police officers to delay in the course of an investigation if to do so would gravely

endanger their lives or the lives of others.”); United States v. Walsh, 299 F.3d

729, 734 (8th Cir. 2002) (danger associated with suspected methamphetamine lab

sanctioned warrantless search by police officers); United States v. Wicks, 955

F.2d 964, 970 (10th Cir. 1993) (agents may conduct warrantless searches “if they

believe that their own lives or the lives of others are at risk”); United States v.

Wilson, 865 F.2d 215, 216-17 (9th Cir. 1989) (officer’s fear methamphetamine lab

would explode justified warrantless entry into home); cf. United States v. Spinelli,

848 F.2d 26, 29-30 (2nd Cir. 1988) (officer’s concern regarding volatile nature of

methamphetamine justified failure to comply with knock-and-announce statute).

The government bears the burden of establishing exigency. In our

assessment of whether the burden is satisfied, “we are guided by the realities of

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the situation presented by the record.” Wicks, 995 F.2d at 970 (internal

quotations omitted). “We should ‘evaluate the circumstances as they would have

appeared to prudent, cautious and trained officers.’” United States v. Cuaron,

700 F.2d 582, 586 (10th Cir. 1983) (quoting United States v. Erb, 596 F.2d 412,

419 (10th Cir. 1979)). We have determined the

basic aspects of the “exigent circumstances” exception are that (1)
the law enforcement officers must have reasonable grounds to
believe that there is immediate need to protect their lives or others or
their property or that of others, (2) the search must not be motivated
by an intent to arrest and seize evidence, and (3) there must be some
reasonable basis, approaching probable cause, to associate an
emergency with the area or place to be searched.

Wicks, 995 F.2d at 970 (quoting United States v. Smith, 797 F.2d 836, 840 (10th

Cir. 1986)); Anderson, 981 F.2d at 1567. Nevertheless, “there is no absolute test

for the presence of exigent circumstances, because such a determination

ultimately depends upon the unique facts of each controversy.” Wicks, 995 F.2d

at 970 (internal quotation and citations omitted).

In a very short ruling from the bench after an evidentiary hearing, the

district court found the officers’ knowledge that iodine, phosphorus, ice and

cotton balls had been purchased by defendants, coupled with the strong odor of

methamphetamine cooking, justified the officers’ belief that there was a danger to

the public amounting to exigent circumstances. Reviewing the record in light of

the factors cited in Wicks, we agree exigent circumstances existed justifying the

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agents’ warrantless entry into the residence.

The government presented evidence indicating the federal agents had

reasonable grounds to believe there was an immediate need to protect themselves

and the public from the potential explosion of the methamphetamine lab in Mr.

Brown’s home. 1 Agent Mallory, 2 who oversaw the operation resulting in Mr.

Rhiger’s arrest, testified the heat generated from methamphetamine production

“can be very intense [and] can cause fires,” rec., vol. III at 27, and that vapors

from the manufacture of methamphetamine “are very, very flammable . . . [and] in

large quantities can produce a large explosion, causing a danger for the

surrounding public.” Id. at 38.

Agent Mallory and his colleagues reasonably believed methamphetamine

was being produced in the Brown residence based on their surveillance of Mr.

1
We disagree with the dissent’s assertion that the government’s reliance on
the public safety exception is unconvincing. This exception arises when “law
enforcement officers . . . have reasonable grounds to believe that there is an
immediate need to protect their lives or others . . . .” Wicks, 995 F.2d at 970
(emphasis added). That Mr. Brown’s home was relatively isolated from the other
homes in his neighborhood is of little consequence. The investigating officers,
along with Mr. Rhiger and Mr. Baker, could have been injured if the lab
exploded.
2
Agent Mallory worked for the local sheriff’s department and was assigned
to the United States Drug Enforcement Task Force, where he worked primarily for
the Clandestine Laboratory Team. He had received over 200 hours of instruction
regarding the manufacture of methamphetamine, and the investigation and
dismantling of methamphetamine labs. Agent Mallory also had been directly
involved in the investigation and cleanup of at least 125 methamphetamine labs.

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Rhiger and their observation of Mr. Brown’s home. Prior to their entry of the

Brown residence, the federal agents had spent several hours tracking the activities

of Mr. Rhiger. During that time, Mr. Rhiger was observed with two companions,

Christopher Dunlap and Mr. Baker, who purchased chemicals and other materials

used in the production of methamphetamine. In addition, the agents confirmed

that six days earlier, Mr. Rhiger had purchased iodine, an ingredient also used to

produce methamphetamine. After leaving Mr. Dunlap at another location, Mr.

Rhiger and Mr. Baker drove to Mr. Brown’s home and then entered the building.

The agents established surveillance of the home and watched for evidence of the

manufacture of methamphetamine. After about an hour, agents stationed to the

south of the home became aware of “a very strong odor of methamphetamine

being manufactured,” which they believed was coming from the Brown residence.

Id. at 32, 59, 61, 64. When the agents radioed to Agent Mallory that they had

detected the smell, he joined them at their location where he “was overcome by

the odor of methamphetamine being manufactured, emitting from the northwest,”

the direction of Mr. Brown’s home in relation to agents’ surveillance position.

Id. at 33. During the next half-hour, Agent Mallory took steps to establish the

odor was not coming from the mobile home immediately next to where the agents

were stationed. After questioning the resident of the mobile home, performing a

consensual search of its interior, and determining no illegal drug activity was

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occurring there, Agent Mallory believed he “had exigent circumstances that the

manufacturing process [of methamphetamine] was occurring” in the Brown

residence, id. at 34, and that for the purposes of public safety, it was necessary to

enter the building, and shut the lab down, id. at 71.

Evaluating these facts under the objective standard of a “prudent, cautious

and trained” officer, Cuaron, 700 F.2d at 586, we hold the government’s evidence

regarding Mr. Rhiger and Mr. Brown’s purchase and possession of materials used

to manufacture methamphetamine, the strong odor of cooking methamphetamine

emitting from the Brown residence, and Agent Mallory’s knowledge of the

inherent dangerousness of an active methamphetamine lab, establishes that

reasonable grounds existed for the agents to believe there was an immediate need

to protect the public by entering the home and discontinuing the lab’s production. 3

3
The half-hour gap between Agent Mallory’s detection of the
methamphetamine smell and entry of the home does not dissuade us from our
conclusion that a “prudent, cautious and trained” officer, Cuaron, 700 F.2d at
586, would have determined a threat to public safety existed and warrantless entry
into the home was justified. Viewed objectively, the record provides ample
evidence regarding the inherent volatility of a methamphetamine lab, and of the
agent’s reasonable belief of its existence in the Brown residence. That Agent
Mallory waited half an hour to enter the residence does not undermine the
objective evidence that cooking methamphetamine is an exceptionally dangerous
process.
Similarly, we reject the dissent’s contention that the officers had “sufficient
information and adequate opportunity to seek a search warrant prior to entering
the residence.” The time required to obtain the search warrant may have exposed
the officers, Mr. Rhiger and Mr. Baker, to the danger of the lab’s potential
(continued...)

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 There is also no evidence the agents entered the home with an intent to

arrest and seize evidence. Rather, as discussed above, they were motivated out of

a concern for public safety. Agent Mallory testified “it’s a very hazardous

environment. It’s explosive. There are poisonous gases coming off.” Id., vol. IV

at 215. Therefore, “we needed to get in, and we needed to shut this thing down

for public safety.” Id., vol. III at 35. Agent Mallory further testified that upon

entering the Brown residence and discovering an active lab in production, “[t]he

first thing we did . . . was we removed the heat . . . . That was very necessary.

We did not want that reaction to cause any volatile reactions. So we wanted to

remove the heat and get [the lab] shut off and cooled down.” Id., vol. IV at 134.

Only after the agents detained defendants, turned off the heat, and obtained a

search warrant, did they re-enter the premises and conduct a full and thorough

search.

Finally, the agents had a “reasonable basis, approaching probable cause, to

associate an emergency with the area or place to be searched.” Smith, 797 F.2d at

840. The agents’ observations of Mr. Rhiger and his colleagues purchasing

materials used to produce methamphetamine, their detection of the strong odor of

3
(...continued)
explosion for a period even longer than the half-hour between the agents’
detection of the smell of cooking methamphetamine and their entry into the home.

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cooking methamphetamine, 4 and their awareness of the potential explosiveness of

an active methamphetamine lab, establish that more than enough evidence exists

for us to conclude the agents had a reasonable basis, if not probable cause, to

associate an emergency with the place to be searched. Consequently, their

warrantless entry of the residence was justified. See Walsh, 299 F.3d at 734

(strong smell of ether, evidence of laboratory equipment used to produce

methamphetamine, residue suggesting on-going production of the drug, and police

concerns that active heat source might be present, established exigent

circumstances permitting officer to enter structure without a warrant); Wilson,

865 F.2d at 216-17 (strong smell of chemical fumes, activity in suspected

methamphetamine lab, and liquid ether spilling out of same space substantiated

officer’s fears regarding public safety and warranted his entry into garage);

4
Mr. Rhiger contends the “district court erred in finding that the odor
associated with the manufacture of methamphetamine satisfied the government’s
burden of proving that sufficient exigency existed to justify the warrantless entry
of Mr. Brown’s home.” Aplt. brief at 18. While the district court did note “a
plain view rule for odors” or a “plain smell rule” was developing in the law, rec.,
vol. III at 88, it did not conclude exigent circumstances existed solely because the
agents detected the smell of cooking methamphetamine. Rather, the district court
listed several factors (only one of which was the smell of cooking drugs) whose
collective force established exigency. Id. Case law establishes that odor, coupled
with other relevant facts, can support an exigency argument. See United States v.
Scroger, 98 F.3d 1256, 1259 (10th Cir. 1996); United States v. Erb, 596 F.2d 412,
415 (10th Cir. 1979). See also United States v. Walsh, 299 F.3d 729, 734 (8th
Cir. 2002); United States v. Wilson, 865 F.2d 215, 216-17 (9th Cir. 1989); United
States v. Brock, 667 F.2d 1311, 1318 (9th Cir. 1982).

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Spinelli, 848 F.2d at 29-30 (police knowledge of volatile nature of

methamphetamine, and fear that defendant would try to destroy evidence by

causing explosion in lab, established exigent circumstances); Brock, 667 F.2d at

1314-15 (smell of cooking methamphetamine and officer’s observation of

defendant choking on fumes supported officer’s fears of potential explosion and

justified warrantless entry into mobile home); Erb, 596 F.2d at 417-18 (strong

smell of ether emitting from house for over six hours, reliable tips from

informant, and officer’s fear that defendant might try to destroy evidence and that

methamphetamine lab could cause danger to public, established exigent

circumstances allowing warrantless entry of dwelling). But see United States v.

Warner, 843 F.2d 401, 404 (9th Cir. 1988) (officer’s knowledge of potential

explosive nature of stored chemicals, but lack of perception of an immediate

emergency, did not justify warrantless entry of unoccupied garage); United States

v. Bonitz, 826 F.2d 954, 957 (10th Cir. 1987) (officer’s alleged fears regarding

explosive nature of undisturbed gun powder and ammunition was not sufficiently

supported by record to establish exigent circumstances); United States v. Jackson,

199 F.Supp.2d 1081, 1090 (D. Kan. 2002) (despite officer’s detection of strong

chemical odor and suspicion that methamphetamine was being produced in

residence, government failed to prove existence of exigent circumstances because

no testimony was offered regarding danger of explosion or volatility of

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methamphetamine).

Based on the preceding analysis, we conclude the federal agents had

“reasonable grounds to believe that there [was] immediate need to protect” the

public, their search was not “motivated by an intent to arrest and seize evidence,”

and there was a “reasonable basis, approaching probable cause, to associate an

emergency with” the Brown residence. Smith, 797 F.2d at 840. The district court

correctly determined that exigent circumstances justified the agents’ warrantless

entry into Mr. Brown’s home, and properly denied Mr. Rhiger’s motion to

suppress evidence.

IV

Finally, Mr. Rhiger maintains the district court erred in permitting Agent

Mallory to testify he detected the odor of methamphetamine on Mr. Rhiger’s

clothing when arresting him. Because Mr. Rhiger failed to object at trial to Agent

Mallory’s testimony, we review this issue under the plain error standard. See

Johnson v. United States, 520 U.S. 461 (1997).

In Johnson, the Supreme Court outlined the elements required under the

plain error test.

[B]efore an appellate court can correct an error not raised at trial,
there must be (1) error, (2) that is plain, and (3) that affect[s]
substantial rights. If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if

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 (4) the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.

Johnson, 520 U.S. at 466-67 (alterations in original) (internal quotations and

citations omitted). Even if Mr. Rhiger were to satisfy the first three prongs of the

test, he fails to establish that any such error “seriously affect[ed] the fairness,

integrity, or public reputation of [his] judicial proceedings.” 5 Id. at 467. The

government presented more than enough evidence for a jury to determine Mr.

Rhiger was guilty of the charges against him, and the absence of Agent Mallory’s

testimony regarding the smell of Mr. Rhiger’s clothes would not have altered that

result. The evidence showed that Mr. Rhiger purchased materials used to produce

methamphetamine. He aided his companions in purchasing materials for the

manufacture of the drug. He entered a home in which there was an active

methamphetamine lab. Finally, he was found hiding in a shower in a back

5
The district court accepted Agent Mallory as an expert witness in the field
of methamphetamine production and the investigation of illegal laboratories.
Rec., vol. IV at 114. It appears Mr. Rhiger believes that if Agent Mallory were
offering expert testimony regarding the smell on Mr. Rhiger’s clothing, the
district court should have vetted Agent Mallory’s opinion in a hearing pursuant to
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95 (1993).
Conversely, if Agent Mallory were offering lay testimony regarding the smell on
Mr. Rhiger’s clothing, Mr. Rhiger asserts the district court should have informed
the jury as such. Without such information, Mr. Rhiger contends, the jury may
have inappropriately attributed heightened credibility to Agent Mallory’s
statement and used his testimony as its sole basis for finding Mr. Rhiger was
present in the garage of Mr. Brown’s home, thus establishing his guilt. We need
not reach the merits of Mr. Rhiger’s claims. Even if his assertions showed the
district court plainly erred, he cannot prove the requisite prejudice.

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bedroom of the home when the agents entered the building to shut down the lab.

“On this record there is no basis for concluding that the error seriously affect[ed]

the fairness, integrity, or public reputation of [Mr. Rhiger’s] judicial

proceedings.” Id. at 470 (internal quotation omitted). The district court did not

commit plain error.

The judgment of the district court is AFFIRMED.

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No. 01-2246, United States v. Rhiger,

BRISCOE, Circuit Judge, concurring and dissenting:

I agree with the majority's conclusion that Rhiger has standing to contest

the officers’ entry into the residence. However, I disagree that exigent

circumstances excused the officers’ warrantless entry. Since entry into the

residence was not supported by either a warrant or exigent circumstances, I would

conclude the district court erred in denying the motion to suppress and, as a

result, I would reverse the conviction and remand for new trial.

As accurately noted by the majority, a warrantless entry into a residence is

presumptively unreasonable under the Fourth Amendment. Payton v. New York,

445 U.S. 573, 586 (1980). A warrantless entry may be justified, however, where

officers believe their own lives or the lives of others are at risk. United States v.

Wicks, 995 F.2d 964, 970 (10th Cir. 1993). Where the exigent circumstance

claimed is protection of the public, the requirements are that (1) law enforcement

officers must have reasonable grounds to believe there is an immediate need to

protect the public or the public’s property; (2) the search must not be motivated

by an intent to arrest and seize evidence; and (3) there must be some reasonable

basis, approaching probable cause, to associate an emergency with the area or

place to be searched. United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986).

The burden is on the government to show exigency. Wicks, 995 F.2d at
970. In assessing whether this burden has been met, the court evaluates the

circumstances as they would have appeared to prudent, cautious, and trained

officers. United States v. Scroger, 98 F.3d 1256, 1259 (10th Cir. 1996). In

reviewing the denial of a motion to suppress, this court accepts as true the trial

court’s findings of fact unless they are clearly erroneous, but the ultimate

determination of reasonableness is a question of law that is reviewed de novo.

Wicks, 995 F.2d at 968-69.

Here, the district court found exigent circumstances based on two factors:

(1) the danger to the public posed by the manufacturing of methamphetamine; and

(2) the need to prevent destruction of the evidence. However, the government did

not advance the need to prevent destruction of the evidence as an exigent

circumstance and presented no evidence regarding that issue. Instead, the

government only advanced the danger to the public as the reason for entry.

Therefore, although the need to prevent destruction of the evidence might have

given the officers a reason to enter, it was not the reason for entry in this case.

Did the government establish a danger to the public that would justify the

warrantless entry? I would conclude it did not. In deciding the officers’ public

safety concerns provided an exigent circumstance sufficient to justify entry, the

district court cited United States v. Brock, 667 F.2d 1311 (9th Cir. 1982). In

Brock, agents surrounded a motor home at a state park, suspecting the

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manufacture of methamphetamine. An agent smelled chemicals cooking, and

another agent saw the defendant dash out of the motor home “gasping for air, as if

choking on fumes.” Id. at 1314. The agents entered the motor home and found

an operating methamphetamine lab. The district court found exigent

circumstances (the smell of methamphetamine, the defendant fleeing the motor

home while choking on fumes, the officers’ knowledge of the explosiveness of

chemicals used in making methamphetamine, and uncertainty as to whether other

occupants might still be in the motor home) supported entry for the safety of the

occupants and to prevent an explosion. The Ninth Circuit affirmed the district

court’s findings and conclusions.

Brock is typical of cases which have upheld warrantless entry into a

residence where methamphetamine manufacturing is suspected in order to protect

the public. See United States v. Cervantes, 219 F.3d 882, 891 (9th Cir. 2000)

(finding risk of explosion in apartment building constituted emergency justifying

entry and there was no need for exigent circumstance analysis); United States v.

Wilson, 865 F.2d 215, 216-17 (9th Cir. 1989) (finding exigent circumstances

existed because of danger of explosion of methamphetamine lab in residential

area); United States v. Echegoyen, 799 F. 2d 1271, 1278-79 (9th Cir. 1986)

(finding danger of methamphetamine explosion in remote area with limited

firefighting resources justified entry); United States v. Erb, 596 F.2d 412, 417-18

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(10th Cir. 1979) (finding danger of methamphetamine manufacture combined with

danger of destruction of evidence presented exigent circumstances). These cases

rely in part upon the explosive nature of the manufacturing process. However, in

the majority of these cases, there was some actual evidence of an existing danger

to the public and that officers acted promptly in entering the residence to assess

the danger and prevent harm. See Wilson, 865 F.2d at 216-17 (lab located in

residential area and firefighters called to scene advised entry); Brock, 667 F.2d at

1318 (resident leaving house choking on fumes, combined with concern for other

residents inside).

In the present case, the government’s reliance upon public safety to support

exigency is much less convincing. Although Officer Mallory contended entry was

necessary to protect the “public,” it is unclear whom he was seeking to protect.

Mallory admitted that the residence was bounded on two sides by open mesa, on

one side by an unoccupied garage, and on the other side by a trailer with its

occupant known to be absent. Even if there was some evidence that the public

would be endangered by an explosion, the officers’ conduct belies the claim of

exigency. Upon deciding a warrantless entry was necessary to protect the public,

Mallory and the other officers did not immediately enter the residence, but rather

searched for a key so they could enter without damaging the front door.

Evidently, protection of the front door took precedence over protection of the

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public. The entry itself was not effected until approximately thirty minutes after

the decision to enter was made.

While warrantless entry into a residence where methamphetamine

manufacturing is occurring has been upheld in other cases on public safety

grounds, in this case the danger to the public was known to be minimal and the

actions of the officers in attempting to find a key prior to entry belied any notion

there was an emergency requiring immediate entry. By our concluding this entry

was justified by exigent circumstances, we are effectively establishing a rule that

a warrantless entry into a residence is always justified where methamphetamine is

being manufactured. Or, stated another way, we are creating a methamphetamine

lab exception to the warrant requirement.

The officers here had sufficient information and adequate opportunity to

seek a search warrant prior to entering the residence. Officer Mallory had

checked Rhiger’s criminal record after the purchase of the 500 grams of iodine,

but before the purchase of 500 grams of red phosphorous, and learned that Rhiger

had been or was associated with the manufacture of methamphetamine. This

information, along with the smell of methamphetamine and the earlier purchase of

chemicals and related supplies, provided the officers with sufficient information

to seek a warrant. The officers had surrounded the residence and there was no

indication they feared the residents might try to escape. They were not concerned

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that evidence might be destroyed -- in fact, it appears that more evidence was

being manufactured. It was the middle of the day so obtaining a warrant would

not be as difficult as a late-night request.

The government argues that even if the entry was unlawful, the evidence

need not be suppressed. According to the government, the evidence was obtained

pursuant to a valid search warrant, although the warrant was issued after the

initial entry. “Although a search may violate the Fourth Amendment, the

exclusionary rule is inapplicable if the evidence inevitably would have been

discovered by lawful means.” United States v. Souza, 223 F.3d 1197, 1202 (10th

Cir. 2000). However, the inevitable discovery exception does not apply to all

situations where police have probable cause for a warrant and fail to get one.

Rather, the question is the likelihood that a warrant would have been issued and

the evidence would have been found independent of the search. Id. at 1204. In

determining whether a warrant would have been issued independent of the search,

the following factors are helpful: (1) the extent to which the warrant process has

been completed at the time those seeking the warrant learn of the search; (2) the

strength of the showing of probable cause at the time the search occurred; (3)

whether a warrant was ultimately obtained, albeit after the illegal entry; and (4)

evidence that law enforcement lacked confidence in their showing of probable

cause and wanted to force the issue. Id.

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 In this case, the search warrant was not issued independently of entry into

the residence. Rather, the affidavit in support of the application for the search

warrant was based in part on information obtained as a result of the warrantless

entry. The inevitable discovery doctrine should not apply if the “agents' decision

to seek the warrant was prompted by what they had seen during the initial entry,

or if information obtained during that entry was presented to the Magistrate and

affected his decision to issue the warrant.” Murray v. United States, 487 U.S.

533, 542 (1988).

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