NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0467n.06
Nos. 08-1220 & 08-1221
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 12, 2011
UNITED STATES OF AMERICA, )
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. )
)
ALEJANDRO SERRANO DOMENECH, )
)
Defendant-Appellant. (08-1220) )
)
__________________________________________ )
) ON APPEAL FROM THE
UNITED STATES OF AMERICA, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
Plaintiff-Appellee, ) DISTRICT OF MICHIGAN
)
v. ) AMENDED
) OPINION
WILLIAM SERRANO DOMENECH, )
)
Defendant-Appellant. )
BEFORE: NORRIS, COOK, and GRIFFIN, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. On November 19, 2010, the United States filed a
Petition for Panel Rehearing. After further consideration of the record we deny the petition as moot,
we vacate our prior opinion, United States v. Domenech, 623 F.3d 325 (6th Cir. 2010), and replace
it with this amended opinion.
Nos. 08-1220 & 08-1221
United States v. Domenech
Brothers Alejandro and William Serrano Domenech stand convicted on multiple criminal
counts related to drug trafficking. On appeal, their primary focus is upon the district court’s denial
of their joint motion to suppress evidence seized during a warrantless search of the motel room
where the pair were arrested. They also challenge the district court’s handling of their representation
by appointed counsel. Finally, they contend that the sentences imposed by the district court were
unreasonable. We conclude that defendants’ assignments of error are without merit and therefore
affirm the judgments of the district court.
I.
The motion to suppress evidence seized from the motel room occupied by defendants was
filed shortly after the return of the original indictment. After a hearing, the district court denied the
motion based upon its conclusion that defendants lacked a reasonable expectation of privacy in the
premises and therefore could not raise a Fourth Amendment challenge to the warrantless search and
seizure. Opinion & Order, April 6, 2007. Although the government raised an alternative argument
that the police officers who conducted the search had probable cause based upon “exigent
circumstances,” the district court did not address that issue.
After a delay of several months, during which a superseding indictment issued and the case
was assigned to a different district court judge,1 defendants renewed their motion to suppress shortly
before trial. Their motion was based upon the intervening deposition testimony of a material
witness. The district court addressed the renewed motion during the final pretrial conference and
1
The Honorable Gordon J. Quist presided over the early phases of this prosecution, including the initial
disposition of the motion to suppress. Thereafter, the case was transferred to the Honorable Janet T. Neff.
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concluded that there remained an insufficient basis as a matter of law to “find that either defendant
had a reasonable expectation of privacy in the motel room on the night that they were arrested.”
Hr’g Tr., Oct. 1, 2007 at 9; Order, Oct. 5, 2007.
The matter proceeded to trial. After the government rested its case, defendants moved to
renew their motion to suppress. Arguments by defense counsel focused upon the legitimate
expectation-of-privacy to which their clients were entitled. Before reaching the expectation of
privacy issue, Judge Neff touched upon the alternative argument raised by the government that the
officers had probable cause to search the room based upon exigent circumstances. She noted that
a Michigan state court judge had rejected this argument in earlier, related proceedings and that her
predecessor, Judge Quist, had not reached the issue when denying the original motion to suppress.
Although Judge Neff observed that probable cause was lacking, she again denied the motion because
“there was never any evidence . . . in any of the testimony or any of the transcripts . . . to suggest or
in any way prove that they were using [the room] with the permission of the person who rented it or
that any one of them was the person who rented it.”
When asked to consider the denial of a motion to suppress evidence, we typically review the
district court’s factual findings for clear error and its legal conclusions de novo. United States v.
Buford, 632 F.3d 264, 268 (6th Cir. 2011), petition for cert. filed, _U.S.L.W._, (Mar. 29, 2011) (No.
10-9855). That two-tiered standard simply reflects that the trial judge had the opportunity to hear
the testimony and assess the credibility of witnesses and therefore substantial deference should be
accorded to his or her factual findings. In this case, however, we are reviewing the joint motion to
suppress raised during trial. Neither Judge Quist’s opinion denying defendants’ initial motion, nor
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United States v. Domenech
Judge Neff’s ruling at the final pretrial conference are before us. In her oral ruling after the
government rested its case, Judge Neff reached legal conclusions but made no factual findings.
Consequently, our review is de novo. With these considerations in mind, we turn to the facts
established at trial.
Towards evening on April 3, 2006, deputies Travis Polash and Chris Crawford of the Clinton
County, Michigan, Sheriff’s Department were traveling in their cruiser south on Business Route 27
when they passed the Green Acres motel. As they went by, Polash testified that he noticed a green
Ford Explorer preparing to pull out of the motel’s parking lot. His suspicions were aroused because
the vehicle did not leave the driveway after the cruiser passed. The officers doubled back and
noticed that the Explorer had backed into a parking spot at the motel. According to Polash, he and
Crawford discussed this odd maneuver.
They continued their evening patrol but returned to the motel around midnight. The Explorer
was still parked in front of the motel. After running its license plate number, the officers determined
that the owner, Marty Hinton, “showed a parole absconder warrant.” Officers Jason Jones of the
Dewitt Township Police Department and Tim Burchell of the Michigan State Police were in the area
and were summoned by Polash. The group decided to “make contact” with the room in front of
which the Explorer was parked. Officers Jones and Crawford went to the motel office to review the
room’s registration. Upon their return, Jones told the others that the registration form had not been
properly completed and that the occupant of the room, which was number 22, had also rented Room
31. The person renting the rooms had registered as “Rogelio” and had indicated that he drove a
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United States v. Domenech
Pontiac, not a Ford Explorer. Armed with this information, they elected to conduct a “knock and
talk” with the occupants of Room 22.
Officer Burchell testified that he volunteered to go to the back of the motel in case someone
“tried to get out and/or dispose of any evidence” during the encounter. He had been to the motel on
previous occasions and, when he went to the back of the motel, he could identify the bathroom
window associated with Room 22. Ultimately, he positioned himself within a foot of the window,
which had a frosted glass pane.
He then heard his colleagues knock, followed by some voices. Shortly thereafter, he
“observed the light in the bathroom come on and saw a subject enter into the bathroom area.”
Although he conceded that the frosted glass prevented him from seeing a “clear image” of the
person, he formed the impression that he was a male. He watched as “the subject ben[t] forward
towards what I believe[d] to be the toilet area. And at that point I thought that this person might be
attempting to destroy something or flush something down the toilet.” In response, Officer Burchell
raised the lower portion of the frosted glass window with his flashlight and saw that the person had
a bag in his hand, which he then placed in his mouth. The officer reached in through the window
with his right arm and attempted to “strike his forearm to get him to drop the object.”
After a brief scuffle, Burchell retreated to the front of the motel and entered Room 22. There
he assisted the other officers who were subduing a male suspect. Eventually, the four individuals
in the room, defendants and two women, were arrested.
For his part, Officer Polash testified that after Officer Burchell went to the back of the motel,
Officer Crawford knocked on the door. Polash heard Crawford questioning a woman about who
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owned the Ford Explorer. The conversation was interrupted by shouting from the back of the room,
which Polash recognized as Officer Burchell. They entered the room and encountered defendant
Alejandro Domenech and eventually subdued him. After securing the room, Officers Crawford and
Polash obtained a search warrant. The subsequent search uncovered contraband, which defendants
sought to suppress as products of an illegal search.
Defendants were charged in a six-count superseding indictment with crimes related to
firearms, drug trafficking, and possession of counterfeit federal reserve notes. The jury returned a
guilty verdict on all counts. The district court sentenced Alejandro Serrano Demenech to 420
months of imprisonment, eight years of supervised release, and a fine of $7,380.00; it sentenced
William Serrano Domenech to 234 months of imprisonment, five years of supervised release, and
a fine of $3,160.00.
II.
A. Suppression of Evidence
As already mentioned, the district court below based its denial of the motion to suppress on
defendants’ failure to establish a reasonable expectation of privacy in the motel room. We need not
reach that issue, however, because the government raised an alternative ground which we conclude
presents a more compelling reason to affirm the judgment of the district court.
Even if we were to assume that defendants had a legitimate expectation of privacy in the
motel room, the contested search was lawful because the totality of the circumstances known to the
officers when they initiated the search of Room 22 gave them probable cause to believe that there
was a “fair probability” that “evidence of a crime” would be found in the room. We recognize, of
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United States v. Domenech
course, that having searched Room 22 without a valid warrant, the government bears the burden of
establishing the legality of the search by a preponderance of the evidence. United States v. Haynes,
301 F.3d 669, 677 (6th Cir. 2002). Officers must show both that there was probable cause to believe
a crime was being committed or evidence of a crime would be found, and that exigent circumstances
justified warrantless entry. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam) (citing
Payton v. New York, 445 U.S. 573, 590 (1980)). Where probable cause exists, officers may enter
without a warrant “when evidence of drug crimes is in danger of destruction.” United States v.
Elkins, 300 F.3d 638, 655 (6th Cir. 2002). The officers must reasonably believe that the occupants
of the structure are likely to destroy evidence. Id. at 656. Probable cause exists when “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983). That determination is a “commonsense, practical question” based
upon the totality of the circumstances Id. at 230-31. Those circumstances, in turn, consist of
“objective facts known to the officers at the time of the search.” Smith v. Thornburg, 136 F.3d 1070,
1075 (6th Cir. 1998).
What, precisely, did the officers know when they entered Room 22? First, Officer Crawford
testified that the Green Acres motel was known for “a lot of drug activity.” Second, the driver of
the Ford Explorer parked in front of Room 22 had behaved evasively earlier that evening. Third, a
check of the license plates of the Explorer revealed that its owner had an outstanding arrest warrant.
Fourth, the registration associated with Room 22 was filled out incompletely by “Rogelio,” who
listed an automobile other than the Ford Explorer parked in front of Room 22. Fifth, Officer
Burchell was familiar with the construction of the motel and knew where the toilet for Room 22
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would be situated. Sixth, shortly after he heard his colleagues make contact with the occupants, he
observed a figure enter the bathroom and bend over the toilet. Based upon his prior experience, he
concluded that “this person might be attempting to destroy something or flush something down the
toilet.” While none of these considerations, when taken individually, would be sufficient to create
a “fair probability” that evidence of a crime would be found in Room 22, they strike us as more than
sufficient to establish probable cause and exigent circumstances when viewed through the “totality
of the circumstances” prism. Officer Burchell observed a figure rush to the bathroom and appear
to bend over the toilet in response to the officers’ appearance at the doorway of Room 22. This gave
Officer Burchell probable cause to open the bathroom window to prevent what he concluded was
an attempt to destroy evidence. For their part, the officers at the door of the motel room had
probable cause to enter as soon as they heard the shouts of their colleague from the back of the room.
In reaching this holding today, we do not intend to downplay the importance of requiring a
warrant. Had Officer Burchell not first seen a figure hurrying into the bathroom, he would have had
no probable cause to open its window to investigate further. Likewise, had they not heard the shouts
of their colleague, Officers Polash and Crawford could not have entered Room 22. However, the
Supreme Court carved out the “exigent circumstances” exception to the warrant requirement to
enable officers to respond in a timely way to evolving events – specifically, to prevent the
destruction of evidence once the officers have determined that there is a “fair probability that
evidence of a crime will be found,” Gates, 462 U.S. 238, and destruction of evidence is imminent.
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United States v. Domenech
For these reasons, we affirm the order of the district court denying defendants’ motion to
suppress evidence seized from Room 22 of the Green Acres motel.
B. Substitute Counsel
Both defendants contend that the district court erred when it denied their request for new
appointed counsel. We review for an abuse of discretion. United States v. Vasquez, 560 F.3d 451,
466 (6th Cir. 2009). A district court abuses its discretion where it “relies on clearly erroneous
findings of fact, improperly applies the law, or uses an erroneous legal standard.” Id. (quoting
United States v. Chambers, 441 F.3d 438, 446 (6th Cir. 2006)). When “granting of the defendant’s
request would almost certainly necessitate a last-minute continuance, the trial judge’s actions are
entitled to extraordinary deference.” Id. at 467 (quoting United States v. Whitfield, 259 F. App’x
830, 834 (6th Cir. 2008)).
This court considers four factors in reviewing a denial of a motion to substitute counsel:
(1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the
matter, (3) the extent of the conflict between the attorney and client and whether it
was so great that it resulted in a total lack of communication preventing an adequate
defense, and (4) the balancing of these factors with the public’s interest in the prompt
and efficient administration of justice.
United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001). The defendants’ requests for substitute
counsel were untimely because they raised them at the final pre-trial conference. The district court
demonstrated full awareness of the conflict between the Domenech brothers and their counsel –
defendants blamed counsel for failing to put them on the stand at the suppression hearing to testify
about their reasonable expectation of privacy in the hotel room. The defendants’ attorneys did not
possess a conflict of interest and demonstrated the ability to put on a reasonable defense. Finally,
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the public interest weighed in favor of denying the request as the court previously delayed the trial
date for nearly a year due to a prior counsel substitution.
C. Challenge to the Sentences
1. Standard of Review
This court reviews a district court’s sentence under a deferential abuse-of-discretion standard
for reasonableness. United Sates v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). When a defendant
fails to object, we review allegations of procedural error for plain error. United States v. Vonner, 516
F.3d 382, 389-90 (6th Cir. 2008) (en banc). This court applies a rebuttable presumption of
reasonableness to sentences imposed within the advisory guidelines range. Id. at 389-90.
2. Joint Issues
The Domenech brothers contest the court’s failure fully to consider their age in setting the
sentence. The court, however, noted both of their ages at sentencing, explicitly discussing
Alejandro’s age in crafting a sentence to ensure that upon release he would be incapable of further
criminality.
Both defendants also contest the fine imposed by the court, claiming an inability to pay. A
defendant’s failure to object to the imposition of a fine forfeits any right to appeal that fine. United
States v. Tosca, 18 F.3d 1352, 1355 (6th Cir. 1994). Neither defendant objected to the fine, thus
forfeiting the issue.
3. Issues Raised by William Domenech
William Domenech challenges his sentence as both procedurally and substantively
unreasonable. However, he offers no persuasive challenge to the length of his sentence or to the
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procedure used to calculate it. Rather, he argues for the first time on appeal that this court should
remand for re-sentencing as a crack disparity case. Specifically, he claims that the district court
unreasonably failed to discuss the new guidelines for crack disparities in calculating his sentence.
To the contrary, the court sentenced defendant using the correct version of the amended guidelines,
which provided for a reduction for certain crack cocaine offenses. While a later amendment changed
the method for calculating the base level offense for crimes involving cocaine base, the district court
applied the current version at the time of sentencing. Under 18 U.S.C § 3553(a)(4)(A)(ii), a district
court applies the guidelines “in effect on the date the defendant is sentenced.” In doing so, the
district court did not commit plain error.
Defendant also argues that the district court erred in applying a two-level sentencing
enhancement for physical restraint of a victim. See U.S.S.G. § 3A1.3. Defendant contends that,
while he may have physically restrained that individual, that restraint was not related to the offense
of conviction and is therefore inappropriate. We disagree. The guidelines define offense broadly
to include all relevant conduct. U.S.S.G. § 1B1.1 cmt. n.1(H). Because defendant’s restraint of this
victim fell within the ambit of relevant conduct, the district court did not err.
Finally, defendant argues that the district court erred in considering uncharged conduct and
quantities of drugs. The district court, however, is permitted to find facts that increase the sentence
above the statutory minimum so long as the sentence remains below the statutory maximum for the
quantity found by the jury. United States v. Solorio, 337 F.3d 580, 597 (6th Cir. 2003); See United
States v. Mayberry, 540 F.3d 506, 516-17 (6th Cir. 2008) (noting that judge may find facts by
preponderance of the evidence so long as it does not raise sentence above statutory maximum).
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Because the district judge did not find facts permitting him to exceed the statutory maximum, this
claim lacks merit.
4. Issues Raised by Alejandro Domenech
Like his brother, Alejandro Domenech challenges the reasonableness of his lengthy prison
term and his $7,380 fine as excessive. In our view, the district judge properly imposed the sentence
after careful consideration of the § 3553(a) sentencing factors, with a specific emphasis upon
defendant’s prior criminal history.
Defendant also contends that the court improperly punished him for indicating he would
challenge the conviction on appeal for ineffective assistance of counsel. Throughout the course of
the trial, defendant repeatedly complained about his counsel. At sentencing, the district judge raised
the issue. Later, defendant stated that he wanted to appeal due to ineffective counsel. In crafting the
sentence, the judge noted that defendant lacked remorse about the nature of his actions and continued
to blame others. While defendant argues on appeal that the judge improperly considered his
statements about ineffective counsel in determining that he failed to take responsibility for his
actions, he did not raise this objection below.
In sum, we find that the district court properly considered the various statutory and guidelines
factors in crafting Alejandro Domenech’s sentence.
III.
The judgments of the district court are affirmed.
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GRIFFIN, Circuit Judge, dissenting.
I would adhere to our original decision, see United States v. Domenech, 623 F.3d 325, 331
(6th Cir. 2010). In my view, the evidence was obtained by the police from a search and seizure not
supported by probable cause as is required by the Fourth Amendment. Pursuant to the exclusionary
rule, the government may not use the fruits of its unreasonable search and seizure. Accordingly, I
respectfully dissent.
The Fourth Amendment guarantees the right of liberty against unreasonable searches and
seizures by providing:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV.
Because “physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed,” United States v. United States District Court, 407 U.S. 297, 313 (1972),
“searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton
v. New York, 445 U.S. 573, 586 (1980). The fact that the search in the present case was conducted
inside a motel room rather than a home does not alter the analysis. As the United States Supreme
Court has stated, “[a] hotel room can clearly be the object of Fourth Amendment protection as much
as a home or an office.” Hoffa v. United States, 385 U.S. 293, 301 (1966).
The Supreme Court reiterated the teachings of Payton in Kirk v. Louisiana, 536 U.S. 635
(2002) (per curiam). There, the Court held that “[a]s Payton makes plain,” the police may not enter
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a private residence without a warrant unless both “probable cause plus exigent circumstances” exist.
Id. at 638. Here, it is undisputed that the police did not have a search warrant before entering the
defendants’ motel room, and therefore they required both probable cause and exigent circumstances
to lawfully conduct their search.
“Probable cause is defined as reasonable grounds for belief, supported by less than prima
facie proof but more than mere suspicion.” United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.
1993) (en banc) (citation and internal quotation marks omitted). “[T]he mere possibility that a crime
could be occurring within a home is not sufficient to justify a warrantless search; the police must
have an objectively reasonable basis for their belief that a crime is being committed.” United States
v. McClain, 444 F.3d 556, 563 (6th Cir. 2005) (citation and internal quotation marks omitted).
Similarly, “mere speculation that a crime could be occurring is insufficient to establish probable
cause.” Id. Regarding evidence of a crime, probable cause arises only when “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983).
In our original decision, we ruled that the “district court correctly held” that “the officers
lacked probable cause for the warrantless entry.” Domenech, 623 F.3d at 331. We reached this
decision primarily because “Trooper Burchell admitted that the frosted glass prevented him from
seeing a sink, shower, or toilet through the bathroom window. He could not see the hand movements
of the individual in the bathroom; he could see only that a person entered the bathroom after officers
knocked on the front door.” Id. Trooper Burchell’s subjective hunch that “this person might be
attempting to destroy something or flush something down the toilet[,]” is not the objective evidence
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required to establish probable cause for a search and seizure of a residence for drugs or weapons.
(Emphasis added.) The majority concludes “[h]ad Officer Burchell not first seen a figure hurrying
into the bathroom, he would have had no probable cause to open its window to investigate further.”
In my view, while the hurried activity may have justified further investigation when considered with
the other general evidence, it did not establish probable cause for a warrantless entry into the motel
room. The text of the Fourth Amendment requires more.
My colleagues now abandon our prior holding based on their new conclusion that, when the
circumstances are considered in their totality, the officers possessed probable cause to believe that
evidence of a drug crime would be found in Room 22. These circumstances are as follows:
First, Officer Crawford testified that the Green Acres motel was known for “a lot of
drug activity.” Second, the driver of the Ford Explorer parked in front of Room 22
had behaved evasively earlier that evening. Third, a check of the license plates of the
Explorer revealed that its owner had an outstanding arrest warrant. Fourth, the
registration associated with Room 22 was filled out incompletely by “Rogelio” who
listed an automobile other than the Ford Explorer parked in front of Room 22. Fifth,
Officer Burchell was familiar with the construction of the motel and knew where the
toilet for Room 22 would be situated. Sixth, shortly after he heard his colleagues
make contact with the occupants, he observed a figure enter the bathroom and bend
over the toilet.
“To establish probable cause, this court has explained that ‘the circumstances must indicate
why evidence of illegal activity will be found in a particular place.’” United States v. Howard, 621
F.3d 433, 455 (6th Cir. 2010) (quoting United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)
(en banc)). The majority appears to believe that probable cause to search a residence exists when
there is a fair probability to conclude that some vague or generalized criminal activity may be afoot
or unspecified evidence of a crime found therein. However, as we stated in Ellison v. Balinski, 625
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F.3d 953 (6th Cir. 2010), “[i]t is difficult, to say the least, to square this contention with the history
of the Fourth Amendment, which was enacted in part to curb the abuses of general warrants, devices
which provided British officers with broad discretion to search the homes of citizens of the Colonies
for evidence of vaguely specified crimes.” Id. at 958; see also Steagald v. United States, 451 U.S.
204, 220 (1981) (discussing the history of the Fourth Amendment). Contrary to the majority’s
premise, probable cause supporting a search requires the government to establish “a nexus between
the place to be searched and things to be seized, such that there is a substantial basis to believe that
the things to be seized will be found in the place searched.” Ellison, 625 F.3d at 958.
In my view, the government has failed to adequately demonstrate “why evidence of [a drug
crime would] be found in [Room 22].” Carpenter, 360 F.3d at 594 (citation and internal quotation
marks omitted). Indeed, only two of the circumstances cited by the majority even arguably relate to
drugs: (1) Officer Burchell’s observations, and (2) Officer’s Crawford’s testimony that the Green
Acres Motel was known for “a lot of drug activity.” Neither circumstance is sufficient to justify a
warrantless entry, whether taken individually, or viewed through the totality-of-the-circumstances
prism. As we noted in our original decision, Burchell “admitted” that he observed very little; “he
could see only that a person entered the bathroom after officers knocked on the front door.”
Domenech, 623 F.3d at 331. “Because the trooper could not see through the frosted window, the
district court correctly held that he lacked probable cause to believe that the defendant would destroy
evidence of a drug crime.” Id.
Officer’s Crawford’s statement that the Green Acres Motel is a high drug-activity area is a
“context-based factor[] that would have pertained to anyone in the [area] at the time and should not
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be given undue weight.” United States v. See, 574 F.3d 309, 314 (6th Cir. 2009); see also Illinois
v. Wardlow, 528 U.S. 119, 124 (2000) (“An individual’s presence in an area of expected criminal
activity, standing alone, is not enough to support a reasonable, particularized suspicion that the
person is committing a crime.”). “This caveat is especially appropriate in this case, because while
[Crawford] testified that the area was known for drug [activity] specifically, [the officers] observed
no conduct from [the defendants] consistent with drug activity.” United States v. Johnson, 620 F.3d
685, 693 (6th Cir. 2010). The Fourth Amendment is not suspended or modified for persons who
live, work, or travel through “high-crime” areas. Id. at 692-93.
The remaining facts cited by the majority do not bridge the gap of necessary objective
evidence to establish probable cause. Neither the allegedly evasive behavior of the driver of the Ford
Explorer nor the registration associated with the motel room provide “reasonable grounds for belief”
that illegal drugs or weapons would be found in Room 22. Ferguson, 8 F.3d at 392. And, while
there was an outstanding arrest warrant for the owner of the Ford Explorer, that warrant was a parole
absconder warrant and not an arrest warrant for a drug-or weapons-related offense. Regardless, it
is “well established” that the “existence of probable cause to arrest will not necessarily establish
probable cause to search.” United States v. Savoca, 761 F.2d 292, 297 (6th Cir. 1985) (citation and
internal quotation marks omitted). “The critical element in a reasonable search is not that the owner
of the property is suspected of crime but that there is reasonable cause to believe that the specific
‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher
v. Stanford Daily, 436 U.S. 547, 556 (1978).
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Here, the evidence does not establish that the police had reasonable grounds for believing that
Room 22 would contain evidence of a drug or weapons crime; thus, they lacked probable cause to
conduct the warrantless search. Simply put, because the vague and general evidence of suspicious
activity would have been insufficient to support a drug or weapons crime search warrant, it is
similarly inadequate to establish the probable cause necessary to justify the warrantless search at
issue.
Finally, because the government must demonstrate both probable cause and exigent
circumstances to justify the warrantless entry, I would not reach the issue of exigent circumstances.
I would hold that the search and seizure in Room 22 was unreasonable in violation of the Fourth
Amendment because it was conducted without probable cause. For this reason, I would adhere to
our original decision and deny the government’s petition for panel rehearing for lack of merit.
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