NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0428n.06
Filed: June 20, 2007
No. 06-3843
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ANDRE A. PONDER ) NORTHERN DISTRICT OF OHIO,
) EASTERN DIVISION
Defendant-Appellant. )
)
)
)
)
)
Before: Moore and Griffin, Circuit Judges; McKinley, District Judge.*
McKinley, District Judge. Defendant-Appellant Andre Ponder was indicted by a federal
grand jury for being a felon in possession of a firearm. Following his indictment, the Defendant-
Appellant filed a motion to suppress the evidence obtained as a result of the warrantless search of
his brother’s home. The district court denied Ponder’s motion to suppress and Ponder entered a
conditional guilty plea. On appeal, Ponder argues that the district court erred in denying his motion
to suppress because the warrantless search of his brother’s home was not justified by exigent
circumstances. The Government argues that the district court erred in finding that Ponder had
*
The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western
District of Kentucky, sitting by designation.
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standing to challenge the warrantless search of his brother’s home since he was an overnight guest
there. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
On September 24, 2004, a caller alerted police that shots had been fired. When police
officers arrived on the scene, they observed a bloodied, vandalized vehicle with smashed windows.
The owner of the car, Willie Hines, told the officers that two brothers had vandalized his vehicle
and threatened him with a gun. Hines told the officers that he could identify the two brothers and
offered to take them to the place where Hines believed they would be. The officers placed Hines in
the back of their patrol vehicle and followed his directions. The police eventually arrived at what
they would learn was one of the brothers’ homes and saw two black males on the porch whom Hines
identified as his assailants. When one of the suspects on the porch saw the police car, he ran inside.
The police approached the other suspect, who remained on the porch, and who was eventually
identified as Andre Ponder, the Defendant-Appellant (“Andre”), and observed that his hand was
wrapped in cloth and bleeding. The officers proceeded to place Andre under arrest for felonious
assault and vandalism to a vehicle. Simultaneously, the officers requested permission to search the
home into which the other brother, Kenya, had fled. Kenya’s girlfriend, a resident of the home,
refused to allow the police to enter without a warrant. She asked, however, that she be allowed to
remove her children, who were asleep in the home, if police were going to enter the house anyway.
The police then proceeded to enter and search the premises for Kenya. During their search, they
found two guns in the clothes dryer. Eventually, the police found Kenya hiding in a neighbor’s
house.
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On November 9, 2004, a federal grand jury indicted Andre for being a felon in possession of
a firearm. Following his indictment, the Defendant-Appellant filed a motion to suppress the
evidence obtained as a result of the warrantless search of his brother’s home, where he claimed to
be an overnight guest. The district court held that the Defendant-Appellant had standing to challenge
the warrantless search of his brother’s residence because he was an overnight guest there. The
district court, however, denied the motion to suppress, holding that the warrantless search was
justified by the existence of “exigent circumstances.”
II. ANALYSIS
A. The Defendant-Appellant has Standing
Initially, the Government argues that the Defendant-Appellant does not have standing to
object to the search of Kenya’s residence since Andre was only a visitor there and, therefore, had
no reasonable expectation of privacy. The Defendant-Appellant argues that this issue cannot be
considered on appeal because the Government did not appeal the district court’s order holding that
the Defendant-Appellant had standing. The Defendant-Appellant’s argument fails in this regard
because a prevailing party need not cross-appeal to be entitled to support the judgment in its favor
on grounds expressly rejected by the district court. See, e.g., Jacobs v. E.I. du Pont de Nemours &
Co., 67 F.3d 1219, 1246 n.43 (6th Cir. 1995) (“...an appellee can propose alternative grounds in
support of trial court judgment so long as those arguments were presented below”); Ball v. Abbott
Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1988) (“A defendant may raise an alternative theory
without cross-appealing.”) Accordingly, we can consider whether the Defendant-Appellant has
standing to challenge the warrantless search since the Government raised the issue before the district
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court.
To have standing, a person must have a subjective expectation of privacy in the premises
searched. Minnesota v. Olson, 495 U.S. 91, 95-97 (1990). The Defendant has the burden of proof
to establish the standing necessary to assert a Fourth Amendment violation. United States v. Smith,
263 F.3d 571, 582 (6th Cir. 2001). Importantly, the Supreme Court has held that an overnight guest,
unlike a guest present at a home without the homeowner’s consent, has a reasonable expectation of
privacy that will support standing. Olson, 495 U.S. at 97; Minnesota v. Carter, 525 U.S. 83, 90
(1998).
In the proceedings below, the district court held that the Defendant-Appellant had met his
burden of establishing standing by presenting the “consistent and unequivocal” testimony of three
witnesses - his mother, his brother, and his brother’s girlfriend. The district court found that the
testimony of these witnesses outweighed the circumstantial evidence introduced by the
Government, that Andre brought no personal overnight items to his brother’s residence and that he
never told the police that he was an overnight guest there. On appeal, the Government argues that
Defendant-Appellant’s witnesses were not credible because their testimony was contradictory and
because they sought to protect the Defendant-Appellant.
However, in reviewing a motion to suppress, the district court’s factual findings are accepted
unless clearly erroneous. United States v. Huffman, 461 F.3d 777, 782 (6th Cir. 2006); United States
v. Ogbuh, 982 F.2d 1000, 1003 (6th Cir. 1993). To put it another way, a district court’s factual
findings are overturned only if the appellate court has “a definite and firm conviction that a mistake
has been committed.” Huffman, 982 F.2d at 782 (quoting United States v. Worley, 193 F.3d 380, 384
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(6th Cir. 1999)). Accordingly, a “district court’s findings based on the credibility of witnesses before
it are entitled to great deference on appeal.” Isabel v. City of Memphis, 404 F.3d 404, 411 (6th Cir.
2005).
Here, based on the evidence, we find reasonable the district court’s conclusion that the
Defendant-Appellant was an overnight guest at his brother’s residence. Thus, the Defendant-
Appellant has standing to challenge the warrantless search that occurred on the night in question.
B. The Warrantless Search was Justified
On appeal, the Defendant-Appellant argues that the warrantless search of the home was not
justified because not one of the exigent emergency exceptions is applicable to the situation that
existed when the police entered Kenya’s home without a warrant. We disagree.
It is a “‘basic principle of Fourth Amendment’ law that searches and seizures inside a home
without a warrant are presumptively unreasonable.” O’Brien v. City of Grand Rapids, 23 F.3d 990,
996 (6th Cir. 1994) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)). Thus, the Fourth
Amendment prohibits the warrantless entry and search of a home absent exigent circumstances.
Payton, 445 U.S. at 589-590. Exigent circumstances are situations where “real, immediate, and
serious consequences” will “certainly occur” if a police officer postpones action to obtain a warrant.
United States v. Williams, 354 F.3d 497, 503 (6th Cir. 2003) (quoting Ewolski v. City of Brunswick,
287 F.3d 492, 501 (6th Cir. 2002)(quoting Welsh v. Wisconsin, 466 U.S. 740, 751 (1984)); see also
Thacker v. City of Columbus, 328 F.3d 244, 253 (6th Cir. 2003). The relevant inquiry is whether the
facts are such that an objectively reasonable officer confronted with the same circumstances could
reasonably believe that exigent circumstances existed. Ewolski, 287 F.3d at 501 (citing Dickerson
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v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996)). Finally, it is the Government who bears the
burden of proving the existence of a legitimate exigency. United States v. Lewis, 231 F.3d 238, 241
(6th Cir. 2000).
We have identified the following situations that may give rise to exigent circumstances: 1)
the hot pursuit of a fleeing felon; 2) the imminent destruction of evidence; 3) the need to prevent a
suspect’s escape; and 4) the risk of danger to police or others. Williams, 354 F.3d at 503; United
States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994). Whether exigent circumstances exist is
determined at “the moment of the warrantless entry by the officers.” United States v. Killebrew, 560
F.2d 729, 733 (6th Cir. 1977). Here, the district court held that the warrantless entry of Kenya’s
home was justified based on the fourth exception - because the situation created “an immediate threat
to the safety of the officers.”
In order to show that the warrantless entry and search of a residence was justified based upon
a “risk of danger,” the Government must show that “there was a risk of serious injury posed to the
officers or others that required swift action.” Huffman, 461 F.3d at 783 (citing United States v.
Whren, 517 U.S. 806, 813 (1996)). More specifically, a “risk of danger” exists where 1) the officers
have a reasonable belief that a suspect in the home has a weapon; and 2) the officers can demonstrate
that the suspect had a willingness to use the weapon. Causey v. City of Bay City, 442 F.3d 524, 529
(6th Cir. 2006). Accordingly, in Causey, our court held that it was reasonable for officers to enter
a residence on New Year’s Eve without a warrant because, after learning that a gun had been fired
on the property six times, it was necessary for the officers to “ascertain whether someone inside the
house was in peril,” despite the fact that 1) a neighbor had informed the officers that shots had also
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been fired from the home on previous holidays; 2) the officers had spoken to the occupants through
a window and the occupants had told the officers that no one was injured; and 3) the officers made
no observations that contradicted the occupants’ assurances. Id. Our court upheld the search because
the facts indicated that there was someone within the residence who had both a weapon and a
willingness to use it and, thus, the officers had a justified, reasonable belief that either they or others
were in imminent peril of bodily harm.
Similarly, we have upheld warrantless searches due to a “risk of danger” in Dickerson v.
McClellan, 101 F.3d 1151 (6th Cir. 1996), and Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1992).
In Dickerson, our court held that a warrantless entry into a home was justified where a neighbor
called 911 to report that nine gunshots had been fired; the occupant of the house was drunk; and the
officer heard the occupant yelling in a threatening tone. 101 F.3d 1151. In Hancock, our court held
that exigent circumstances existed where, in addition to a shots-fired report, the police also knew
from the suspect’s psychologist that the suspect was “suicidal and possibly homicidal” and that he
had threatened to kill any responding officer. Hancock, 958 F.2d at 1375-76. These cases are unlike
United States v. Bates, in which our court held that no exigent circumstance existed, even though
the officers believed that the suspect had a handgun in his residence, since the officers possessed no
specific information suggesting that the suspect was likely to use the weapon or become violent. 84
F.3d.790, 795-796 (6th Cir. 1996).
The police in this case, based on the facts known to them at the time of their warrantless
entry into Kenya’s residence, could reasonably have concluded that the circumstances posed an
immediate risk of harm, either to themselves or others. It was reasonable for the officers to fear that
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Kenya had both a weapon and a willingness to use it since Willie Hines had indicated that Andre and
Kenya were the individuals who had illegally fired shots near his home less than an hour earlier.
Accordingly, the officers were justified in making a warrantless entry into the house to search for
Kenya.
The Defendant-Appellant further argues, however, that even if the police had a reasonable
belief that a “risk of harm” existed, this exigent situation was created by the officers themselves, and
therefore, the warrantless search was not justified.
It is well-established that police officers are not free to create exigent circumstances to justify
their warrantless searches. United States v. Campbell, 261 F.3d 628, 633 (6th Cir. 2001)(citing
United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984)). Indeed, in order “for a warrantless
search to stand, law enforcement officers must be responding to an unanticipated exigency rather
than simply creating the exigency for themselves.” United States v. Chambers, 395 F.3d 563, 566
(6th Cir. 2005). Importantly, however, establishing that police have created an exigent situation
usually requires a showing of “deliberate conduct on the part of the police evincing an effort
intentionally to evade the warrant requirement.” Ewolski v. City of Brunswick, 287 F.3d 492, 504 (6th
Cir. 2002). There is no evidence here to suggest that the police made a deliberate effort to evade the
warrant requirement. Rather, it appears that they were properly conducting an ongoing investigation
that had begun just a few hours earlier. Accordingly, we hold that the officers did not intentionally
create an exigent situation, but rather the exigent situation naturally arose when they observed Kenya
flee into the house.
III. CONCLUSION
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For all of the reasons set forth above, we AFFIRM the judgment of the district court.