United States v. Stafford

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30134
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00169-RSL
MATTHEW STAFFORD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief U.S. District Judge, Presiding

Submitted April 6, 2005*
Seattle, Washington

Filed August 3, 2005

Before: William C. Canby, Jr., Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge Canby

*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

9037
9040 UNITED STATES v. STAFFORD

COUNSEL

David B. Koch, Nielsen, Broman & Koch, PLLC, Seattle,
Washington, for the defendant-appellant.

Michael J. Lang, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
 UNITED STATES v. STAFFORD 9041
OPINION

TALLMAN, Circuit Judge:

On the afternoon of January 22, 2003, Snohomish County,
Washington, Sheriff’s officers responded to a report of a pos-
sible dead body inside what witnesses described as a blood-
spattered apartment in a state of disarray. In the course of
looking for a possibly injured or deceased person, the deputies
saw two assault rifles, a suspected grenade launcher, ammuni-
tion, and photographs of a man apparently injecting drugs
intravenously while sitting in the bathroom of what appeared
to be the same apartment.

As a result of this entry, observation, and subsequent sei-
zure of the weapons, Matthew Stafford was charged with and
convicted of two counts of unlawful possession of a firearm.
He was sentenced to 72 months of imprisonment. On appeal,
he challenges the district court’s denial of his motion to sup-
press evidence obtained during the warrantless search. He
also argues that, in light of United States v. Booker, 125 S. Ct.
738 (2005), his sentence constitutes plain error. We hold that
the warrantless entry was reasonably justified by the emer-
gency doctrine, and that the rifles and ammunition seized
were properly admitted into evidence under the plain view
exception to the Fourth Amendment’s warrant requirement.
We remand the case to permit the district court to consider
whether it would have sentenced Stafford differently under
the advisory, rather than the mandatory, United States Sen-
tencing Guidelines. See United States v. Ameline, 409 F.3d
1073, 1084 (9th Cir. 2005) (en banc). Accordingly, we affirm
the district court’s denial of Stafford’s motion to suppress and
remand pursuant to Ameline.

I

On January 22, 2003, fire alarm technician Day was per-
forming a pre-scheduled annual fire alarm check in every unit
9042 UNITED STATES v. STAFFORD
at an apartment complex. The checks were uneventful until he
reached unit F-202, where he noticed a strong odor, “like a
dog, or organic,” emanating from behind the front door. He
entered the unit. After testing the fire alarm in the living
room, he entered the master bedroom to test the second fire
alarm. He encountered some difficulty entering because the
door to the bedroom appeared to have been kicked in and was
blocked on the other side by a container. When he was able
to get through, he noticed that the strange odor intensified and
that the room was splattered and smeared with large quantities
of blood and feces — on the wall, on the floor, on a bunch
of bloody rags — and that it looked as though “there had been
a brawl.” He peeked into the unlit bathroom, in a similar con-
dition, whereupon the smell became overpowering. He also
noticed what appeared to be a bunsen burner as well as hun-
dreds of needles.1 Upon seeing this, he became worried that
there might be a dead body in the unit and felt that he had to
leave the apartment and call maintenance because this was an
issue “of grave concern.”

Day immediately told the maintenance person, Atkinson,
that they should call the police because there could be a dead
body or a methamphetamine laboratory in the unit, and that
he had not had a chance to view much of the bathroom before
exiting. Atkinson peeked in and agreed with Day that there
could be a dead body inside. Atkinson then contacted the
property manager, who called 911 and relayed their concerns
and a description of the unit’s interior to the sheriff’s dis-
patcher.

Snohomish County Deputy Sheriff Bond was the first offi-
cer to arrive at around 2:32 p.m. He spoke with the manager
and confirmed the witness reports of blood, feces, needles, a
strong odor, and a possible dead body in unit F-202. Shortly
thereafter, Deputy Haley arrived and was briefed by Bond and
1
He also testified that he saw a rifle clip in the closet on his way to the
bathroom.
 UNITED STATES v. STAFFORD 9043
the others. Following department policy for calls involving a
possible dead body, Deputy Bond called for a supervising ser-
geant because he thought that the situation might require a
“forced entry.” While waiting for the sergeant to arrive, Dep-
uties Bond and Haley performed checks of license plates
associated with the unit to determine more information about
what they might be facing and to try to identify the resident
or victim in the apartment.

All three officers entered unit F-202 when the sergeant
arrived, less than thirty minutes after Deputy Bond first
responded to the call. All of the officers entered with their
weapons drawn because they did not know what to expect
inside. At the suppression hearing, the officers testified that
their primary concern was the possibility of locating a victim
inside unit F-202.

The officers first cleared the kitchen, alcove, and living
room. Before entering the master bedroom, Deputy Haley
noticed a single, green-tipped bullet which he knew to be con-
sistent with armor-piercing ammunition. The master bedroom
contained two closed doors. Deputy Haley opened one of the
doors to a closet, and saw the barrels of two military AR-15
assault rifles behind a storage container. On top of the storage
container was a military-style camouflage bulletproof vest
and a magazine of 9 mm handgun ammunition; all of this
ammunition was also green-tipped. The officers then pro-
ceeded to the second door, which led to the bathroom. Blood
and feces were smeared on every surface in the bathroom and
there was a trash bag full of bloody bandages and hypodermic
needles in the corner. The counter and floor were littered with
needles and other drug paraphernalia. Additionally, the offi-
cers found photographs of a white male sitting on a chair in
what appeared to be the bathroom in unit F-202, portrayed in
a similar state of disarray. The man had a belt around his arm
and was injecting what appeared to be intravenous drugs;
there was blood streaming down his arm from the needle site,
and a handgun rested on the countertop.
9044 UNITED STATES v. STAFFORD
After securing the area and satisfying themselves that,
despite the odor, no one remained inside the unit, the officers
removed the weapons from the closet. While removing the
magazines from each of the rifles for safety purposes, they
noticed that this ammunition was green-tipped as well. They
also discovered that one of the rifles had what looked like a
grenade launcher mounted on it with the serial number oblit-
erated. They took custody of the weapons because they
believed that they were contraband and because they were
concerned that the man depicted as using drugs in the photo-
graphs would return.

Stafford was later identified as the man in the photographs
and a co-inhabitant of the unit. He was charged with two
counts of unlawful possession of a firearm in violation of 18
U.S.C. §§ 922(g)(3), 922(g)(9), and 924(a)(2). He moved to
suppress the evidence obtained from unit F-202, arguing that
it was the product of an unreasonable search. The district
court denied the motion after an evidentiary hearing. Stafford
subsequently entered a conditional guilty plea and was sen-
tenced to 72 months of imprisonment. This appeal followed.

II

A

We review the lawfulness of a search and seizure de novo,
and we review the findings of fact underlying the district
court’s determination of lawfulness for clear error. United
States v. Deemer, 354 F.3d 1130, 1132 (9th Cir. 2004).

1

[1] Generally, the Fourth Amendment prohibits officers
from entering and searching a residence without first obtain-
ing a warrant. United States v. Cervantes, 219 F.3d 882, 887
(9th Cir. 2000); see also United States v. Carbajal, 956 F.2d
924, 930 (9th Cir. 1992) (“The Fourth Amendment incorpo-
 UNITED STATES v. STAFFORD 9045
rates a strong preference for search warrants.”) (citation omit-
ted). There exists, however, a narrow set of rigorously
guarded exceptions to this warrant requirement. One such
exception is the emergency doctrine, which we recently rec-
ognized and adopted in Cervantes. 219 F.3d at 887-89.

[2] The emergency doctrine allows law enforcement offi-
cers to enter and secure premises without a warrant when they
are responding to a perceived emergency. Id. at 888; see also
Mincey v. Arizona, 437 U.S. 385, 392 (1978) (noting that
“[nu]merous state and federal cases” have recognized that
police may respond to emergency situations without a war-
rant) (internal citations omitted). The emergency doctrine is
based on and justified by the fact that, in addition to their role
as criminal investigators and law enforcers, the police also
function as community caretakers. Cervantes, 219 F.3d at
889; see also Mincey, 437 U.S. at 392 (noting that the Court
did “not question the right of the police to respond to emer-
gency situations”); Cady v. Dombrowski, 413 U.S. 433, 441
(1973) (discussing the community caretaking function of
police officers).2

[3] The following three requirements must be satisfied in
order to justify a warrantless search under the emergency doc-
trine:

(1) The police must have reasonable grounds to
believe that there is an emergency at hand and an
immediate need for their assistance for the protection
of life or property.
2
Additionally, just because “protection of the public might, in the
abstract, have been accomplished by ‘less intrusive’ means does not, by
itself, render the search unreasonable.” Dombrowski, 413 U.S. at 447
(citation omitted) (finding search reasonable where the officers seized a
weapon, rather than posting a guard, to ensure that it was not removed
from the scene).
9046 UNITED STATES v. STAFFORD
(2) The search must not be primarily motivated by
intent to arrest and seize evidence.

(3) There must be some reasonable basis, approxi-
mating probable cause, to associate the emergency
with the area or place to be searched.

Cervantes, 219 F.3d at 888 (quoting People v. Mitchell, 347
N.E.2d 607, 609 (N.Y. 1976)). We judge whether or not the
emergency exception applies in any given situation based on
the totality of the circumstances, and, as with other exceptions
to the warrant requirement, the Government bears the burden
of demonstrating that the search at issue meets these parame-
ters. See Carbajal, 956 F.2d at 930. We recognize that this
doctrine could be abused to serve as a guise for warrantless,
otherwise unreasonable entries, but hold that the requirements
established in Cervantes are sufficient to ensure that, despite
dispensing with the otherwise preferred warrant, these entries
comport with the Fourth Amendment.

a

[4] We must first examine whether the report of a possible
dead body in an apartment unit covered in blood and feces
with needles littering the floor gave the officers a reasonable
belief that an emergency was at hand and that assistance was
necessary. The district court found that it did. We agree. Our
holding is supported by our sister circuits who have also
found that reports of possibly injured victims or dead bodies
constitute an emergency.3 Additionally, the logic behind the
3
See United States v. Holloway, 290 F.3d 1331, 1336 (11th Cir. 2002)
(noting that warrantless searches and entries are reasonable when the offi-
cers “reasonably believe that a person within is in need of immediate
aid”); United States v. Richardson, 208 F.3d 626, 627-31 (7th Cir. 2000)
(finding that a report of a raped and murdered woman constituted an emer-
gency situation because the person could still be alive and in need of assis-
tance); United States v. Salava, 978 F.2d 320, 324-25 (7th Cir. 1992)
(finding that a report of a dead body justified warrantless search of a resi-
dence); see also United States v. Hogue, 283 F. Supp. 846, 848-49 (N.D.
Ga. 1968) (finding an emergency situation where there was a specific
report of a recently wounded victim, and a report of a possible dead body).
 UNITED STATES v. STAFFORD 9047
exception supports our holding because a report of a dead
body can easily lead officers to believe that someone might be
in need of immediate aid. See Wayne v. United States, 318
F.2d 205, 212 (D.C. Cir. 1963).

[5] The officers here relied on a 911 call from two people
who reported that: there might be a dead body; there were
large quantities of blood and feces; the master bedroom
looked like there had been a “brawl”; there were copious
quantities of hypodermic needles; and there was an intense,
putrid smell that seemed to be coming from the bathroom.
Before entering, the officers confirmed those details with the
witnesses. These facts provided the officers with sufficient
grounds to suspect that there was a dead body or that someone
might be in need of assistance in unit F-202. The mere fact
that no dead body or injured person was actually found in this
case does not nullify application of the emergency doctrine.
See Holloway, 290 F.3d at 1340 (“The fact that no victims are
found, or that the information ultimately proves to be false or
inaccurate, does not render the police action any less lawful.”)
(citation omitted). Accordingly, we hold that the first prong is
satisfied.

b

[6] The second prong requires us to divine the officers’
subjective motivation at the time of making the warrantless
entry. Cervantes, 219 F.3d at 889-90. All of the officers testi-
fied at trial that they entered unit F-202 with the sole purpose
of determining whether there was a dead body or an injured
person in need of assistance, and the district court credited
this testimony. Upon examining the record and finding no evi-
dence to the contrary, the district court’s factual determination
was not clearly erroneous. Id. at 891 (reviewing the trial
court’s credibility determinations for clear error). In perform-
ing their duty as community caretakers, the officers were not
primarily motivated by the desire to collect evidence.4 We
conclude that the second prong is satisfied as well.
4
The fact that the officers thought that there might be evidence of drug
use in F-202 does not bar application of the emergency doctrine. See, e.g.,
9048 UNITED STATES v. STAFFORD
c

[7] The third and final prong of the emergency doctrine
requires that “an officer’s search must be limited to only those
areas necessary to respond to the perceived emergency.” Id.
at 890. We find that this prong is satisfied from the limited
scope of the search. Day and Atkinson both entered unit F-
202, told the manager that this was the unit at issue, and then
confirmed for the officers their observations and the reasons
for their concerns. The search was conducted in a manner and
scope appropriately tailored to the basis for the emergency
entry.

[8] We conclude that the district court properly applied the
emergency doctrine in this case, and correctly found that the
available facts justified the officers’ warrantless entry into and
search of unit F-202. The officers reasonably believed, based
on statements obtained from Day and Atkinson, that there was
possibly a dead body inside the unit, and they could reason-
ably fear that someone was possibly injured inside, as well.
Additionally, the officers’ testimony (combined with the
information that they had from Day and Atkinson) shows that
their primary purpose for entering the unit was to determine
whether there was a dead or injured person, not to obtain evi-
dence. Accordingly, the search was reasonable and the offi-
cers were lawfully searching unit F-202 because of the
emergency at hand.

Stafford argues that the Government failed to show that a
telephonic warrant was either unavailable or impracticable
under the circumstances, relying on United States v. Alvarez,
810 F.2d 879 (9th Cir. 1987), a case involving exigent cir-
cumstances rather than the emergency doctrine (which was

Cervantes, 219 F.3d at 886-87, 891 (applying the emergency doctrine
where the officers also suspected methamphetamine production, so long
as their primary motivation was not to obtain evidence).
 UNITED STATES v. STAFFORD 9049
not recognized by our court until 13 years later in Cervantes).
This burden, however, is not part of the emergency doctrine
as enunciated in Cervantes, nor has this showing been
required in our precedent applying the doctrine. See Cervan-
tes, 219 F.3d at 888; United States v. Bradley, 321 F.3d 1212,
1214 (9th Cir. 2003); Deemer, 354 F.3d at 1132; United
States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005).5

2

[9] Having determined that the warrantless entry was justi-
fied by the emergency doctrine, we must next resolve the
issue of whether the evidence seized from unit F-202 was
properly admissible at trial. “[T]he police may seize any evi-
dence that is in plain view during the course of their legiti-
mate emergency activities.” Mincey, 437 U.S. at 393
(citations and emphasis omitted); see also Cervantes, 219
F.3d at 888. “To fall within the plain view exception, two
requirements must be met: the officers must be lawfully
searching the area where the evidence is found and the
5
Even if we were to import this telephonic warrant unavailability or
impracticability requirement to the emergency doctrine’s requirements
from the exigent circumstance context, the burden would be satisfied in
this case. Less than thirty minutes passed between when the first officer
arrived on the scene and when the officer, the sergeant, and a back-up offi-
cer entered the premises. During that time, Deputy Bond followed depart-
ment protocol for cases involving a possible unattended death and called
for a supervisor. Even Alvarez expressly noted that officers were permitted
to delay, without trying to obtain a telephonic warrant, in order to “assem-
ble a team [. . .] and to brief the agents involved.” Id. at 881-82; see also
Salava, 978 F.2d at 324-25 (noting that, in the context of exigent circum-
stances, an emergency “did not evaporate simply because the police
deferred their entry while they took reasonable precautions to reduce the
risk of serious injury to themselves or others”; officers there waited
approximately seventy-five minutes); United States v. Jones, 635 F.2d
1357, 1362 (8th Cir. 1980) (finding that the “waiting period does not
defeat the applicable exception to the warrant rule”) (citation omitted).
This assertion does not alter our conclusion that the warrantless entry was
justified in this case.
9050 UNITED STATES v. STAFFORD
incriminatory nature of the evidence must be immediately
apparent.” Roe v. Sherry, 91 F.3d 1270, 1272 (9th Cir. 1996)
(citations omitted); see also Horton v. California, 496 U.S.
128, 135-37 (1990); Arizona v. Hicks, 480 U.S. 321, 326-27
(1987).

[10] The first requirement is satisfied here because, as we
conclude above, the warrantless entry was justified by the
emergency doctrine, thereby permitting the officers to law-
fully enter unit F-202. See Cervantes, 219 F.3d at 888-89. The
second requirement of the plain view exception, that the
incriminating nature of the evidence be “immediately appar-
ent,” focuses on whether the officers had “probable cause to
believe they were associated with criminal activity.” Horton,
496 U.S. at 131 n.1; see also Hicks, 480 U.S. at 326-27; Texas
v. Brown, 460 U.S. 730, 742 (1983) (“A ‘practical, nontechni-
cal’ probability that incriminating evidence is involved is all
that is required.”) (citation omitted); Sherry, 91 F.3d at 1272-
73.

The determination of whether the officers had probable
cause to believe that the items seized were illegal, unlawful,
or associated with criminal activity is objective, but we apply
it to the “actual and/or perceived belief of the law enforce-
ment officer as he . . . engages in search and seizure.” United
States v. Prim, 698 F.2d 972, 975 (9th Cir. 1983). This stan-
dard does not require the officers to know that the item seized
is illegal. See United States v. Cecil, 457 F.2d 1178, 1180 (8th
Cir. 1972) (noting that, in a case involving plain view seizure
of a sawed-off shotgun, “[t]he observation of the gun gave
probable cause for the reasonable belief that a crime, the pos-
session of a contraband firearm, was being committed[,]” and
that there is “no rule which requires an officer to have knowl-
edge of all the elements of the crime when he views an article
which reasonably appears to be contraband”) (citation omit-
ted); see also Horton, 496 U.S. at 130-33 (applying the plain
view exception where the officers noticed weapons while exe-
cuting a search warrant for the proceeds of a robbery; the offi-
 UNITED STATES v. STAFFORD 9051
cers knew that weapons had been used in the armed robbery
and seized them accordingly).

[11] We find that the “immediately apparent” prong is sat-
isfied in this case; the officers had probable cause to believe
that the rifles and ammunition were illegal. While checking
for a body or an injured person, the officers first saw what
they reasonably believed to be an armor-piercing bullet in the
living room. Then, when the officers opened the closet, they
saw a magazine of 9 mm armor-piercing ammunition on top
of a small storage container and the barrels of two AR-15
assault rifles protruding from behind the container. When the
weapons were placed on the bed, the officers noted that one
of the guns had a grenade launcher with an obliterated serial
number.6

[12] The officers reasonably believed that these items,
found amidst the trappings of severe drug abuse, were illegal.
It is illegal to possess armor-piercing ammunition (18 U.S.C.
§ 929), to possess an unregistered grenade launcher (26
U.S.C. § 5861), and to possess a firearm with a ground-off
serial number (26 U.S.C. § 5842). Moreover, given the photo-
graphs that the officers found depicting a man in the bath-
room, bleeding and injecting intravenous drugs into his arm,
with a handgun resting on the counter, the officers had reason
to believe that there was a possible violation of 18 U.S.C.
§ 922(g)(3), being a drug user or addict in possession of a
firearm. Accordingly, we conclude that the “immediately
apparent” prong is satisfied and, moreover, that the evidence
was lawfully seized under the plain view exception and fully
admissible in the prosecution of Stafford.
6
The fact that the launcher was actually used to propel flares is legally
irrelevant: it looked like a grenade launcher affixed to an assault weapon.
9052 UNITED STATES v. STAFFORD
B

Finally, we address the defendant’s sentencing challenge.
When, as here, a defendant raises an issue on appeal that was
not raised before the district court, we may review only for
plain error. See FED. R. CRIM. P. 52(b); see also United States
v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004). This standard
requires that there be: 1) an error; 2) that is plain; and 3) that
affects substantial rights. Jones v. United States, 527 U.S.
373, 389 (1999). Moreover, in order to warrant relief, we
must find that the error “seriously affect[s] the fairness, integ-
rity[,] or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 736 (1993) (internal citations
and quotation marks omitted).

During Stafford’s sentencing, the district court took into
account the circumstances of Stafford’s failure to appear at
his original sentencing hearing. Specifically, after appearing
at the suppression hearing and entering a conditional guilty
plea, Stafford unhooked his monitoring device, cut off the
bracelet, and fled. He remained at large for five months until
law enforcement caught up with him on February 22, 2004.
After being stopped for a vehicular violation, Stafford pre-
sented a false Texas driver’s license in the name of “David
Thorn,” which he later admitted to having used to evade
police during his time at-large. He then led police on a foot-
pursuit, engaged in a struggle, and threatened the officers with
a firearm that he claimed to have before ultimately being sub-
dued.

The district court found his offense level to be 22, based on
admissions that Stafford made in his conditional plea agree-
ment. The district court also imposed a two-level enhance-
ment for obstruction of justice based on Stafford’s absconding
from his pretrial release and his failure to appear for sentenc-
ing, and upwardly departed from criminal history category III
to category IV because: 1) Stafford’s criminal history did not
adequately reflect the seriousness of his past criminal con-
 UNITED STATES v. STAFFORD 9053
duct; and 2) there was a strong likelihood of recidivism. The
district court then imposed a sentence of 72 months’ impris-
onment.

[13] While it appears that the facts upon which the obstruc-
tion of justice enhancement was based were admitted by the
defendant, we nonetheless follow Ameline’s “limited remand”
approach. 409 F.3d at 1084; see also United States v. Moreno-
Hernandez, No. 03-30387, 2005 WL 1560269, at *9 (9th Cir.
June 5, 2005) (“a limited remand is proper in all pending
direct criminal appeals involving unpreserved Booker error”)
(amending 397 F.3d 1248 (9th Cir. 2005)) (emphasis in origi-
nal). However, because we “do not assume that every defen-
dant will want to pursue resentencing,” the district court must
give Stafford the opportunity to promptly notify it that he
wishes to “opt out” of the Ameline procedure. 409 U.S. at
1084.

III

We determine that the warrantless entry into unit F-202
was justified under the emergency doctrine and that the evi-
dence observed therein was properly seized and admissible
under the plain view exception. Pursuant to Ameline, we fur-
ther determine that a limited remand is required. Accordingly,
we affirm Stafford’s conviction and remand his sentence if
Stafford wishes for the district court to reconsider whether it
would have sentenced him differently under the now-advisory
Guidelines.

CONVICTION AFFIRMED and SENTENCE
REMANDED.
9054 UNITED STATES v. STAFFORD
CANBY, Circuit Judge, dissenting in part:

I respectfully dissent from the affirmance of Stafford’s con-
viction because I conclude that the warrantless search of the
apartment was not justified by the emergency doctrine.1

As the majority opinion recognizes, a warrantless search of
a residence is presumptively unreasonable. See, e.g., United
States v. Karo, 468 U.S. 705, 714-15 (1984). We have, how-
ever, permitted a narrow exception to that rule when the con-
ditions of an emergency are present. United States v.
Cervantes, 219 F.3d 882 (9th Cir. 2000). The first required
condition for an emergency search is that the “police officers
have ‘reasonable grounds to believe that there is an emer-
gency at hand and an immediate need for their assistance’ ”
to preserve life or protect against serious bodily injury. Id. at
889 (quoting People v. Mitchell, 347 N.E.2d 607, 609 (N.Y.
1976)).2 I conclude that this requirement has not been met
here.

The fire alarm inspector and maintenance man who serially
first entered the apartment were confronted with a strong
smell that was strongest in the bathroom, and saw blood and
feces strewn about. They were justifiably appalled by the
mess and opined that there could be a dead body in the apart-
ment and they would never know. Neither in the living room,
the bedroom or the bathroom did either of these men see a
1
If my view that the search was unconstitutional had prevailed, it would
have been unnecessary to deal with Stafford’s challenge to his sentence.
My view did not prevail, however, and I therefore concur in the majority’s
treatment of the sentencing issue and in the limited remand.
2
In Cervantes, we adopted the three conditions for an emergency set
forth in Mitchell, 347 N.E.2d at 609, with one modification. Mitchell’s
first condition referred to the immediate need for “protection of life or
property.” Id. In Cervantes we ruled that preservation of life or protection
against serious bodily injury would qualify for the emergency exception,
but we left open the “more difficult question” whether protection of prop-
erty would suffice. Cervantes, 219 F.3d at 889 n.7.
 UNITED STATES v. STAFFORD 9055
body, and they did not tell the police that they had seen a
body. Indeed, the maintenance man said that the statement
that there could be a body in the apartment was just an indica-
tion of what a mess there was. The fire alarm inspector was
concerned about the possible presence of a body because of
a smell that he thought could be decaying meat or flesh. Both
men conveyed their concerns to the officers before the search.

On this highly speculative evidence, it was not objectively
reasonable to believe that there was a body in the apartment.
Even if that point is open to argument, however, there was
certainly no objectively reasonable ground for believing that
emergency assistance of the officers was required. The cases
holding that the report of a body suffices to create an emer-
gency are grounded in the proposition either that the “body”
might not be quite dead, see United States v. Richardson, 208
F.3d 626, 631 (7th Cir. 2000), or that other injured persons or
a murderer might be present, see Mincey v. Arizona, 437 U.S.
385, 392 (1978). Here, there was no objective support for
either possibility. There was blood, but it was dried and
explainable by the presence of syringes. There was a smell,
but bodies that are not quite dead do not smell like rotting
meat. See Richardson, 208 F.3d at 631 (upholding search
based 911 upon report of a rape and murder and the location
of the body, and noting that “[t]his is not a case where the
report indicated that the body had been languishing in the
house for several days.”). In fact, the smell was more readily
explained by the maintenance man’s observation, communi-
cated to the police, that the toilet in the bathroom was stopped
and there were feces about. There was no reason to believe
that anyone was alive in the apartment and in need of assis-
tance; the fire inspector had loudly knocked or announced his
entrance before entering any of the rooms, and had seen no
evidence that anyone was in the apartment.

Indeed, the officers did not act as if their emergency assis-
tance was required. It was over half an hour after the arrival
of the first officer on the scene that the police entered the
9056 UNITED STATES v. STAFFORD
apartment. In the meantime, they ran license plate checks on
vehicles believed possibly to be connected with the apart-
ment, and they conferred with the management of the apart-
ment. It is true, as the majority opinion here says, that some
delay does not necessarily negate the existence of an emer-
gency, but in the present circumstances, when others had
already entered the apartment and found no live (or dead) per-
sons home, the delay suggests the lack of an emergency.
Although the officers’ subjective belief may not enter into the
determination whether the first, objective requirements of an
emergency are met, see Richardson, 208 F.3d at 630, the offi-
cers’ conduct does go to the second requirement of an emer-
gency, to which I now turn.

The second requirement for a permissible emergency
search is that “ ‘[a] search must not be primarily motivated by
intent to arrest and seize evidence.’ ” Cervantes, 219 F.3d at
890 (quoting Mitchell, 347 N.E.2d at 609). Although there
was no direct evidence of a body or another possible victim
or injured person in the apartment, there was a good deal of
evidence of crime known to the officers before they con-
ducted their search. The fire alarm inspector and the mainte-
nance man reported to the officers that, in the bathroom of the
apartment, they had seen hundreds or even thousands of
syringes, along with what the fire alarm inspector described
as a bunsen burner.3 The fire alarm inspector and maintenance
man had also seen blood, which was consistent with intrave-
nous drug use. The condition of the apartment itself was
highly consistent with heavy drug use. The fire alarm inspec-
tor also told the police that he had seen a gun clip or magazine
in the apartment.
3
The fire alarm inspector testified that he believed that there had been
drug activity and he suspected a methamphetamine lab, but the officers
testified that by the time of the search they did not believe they were deal-
ing with a methamphetamine lab. There is no suggestion that the officers
had reasonable grounds for believing that there was a danger of explosion,
which methamphetamine labs often present. See Cervantes, 219 F.3d at
891.
 UNITED STATES v. STAFFORD 9057
The assistant apartment manager also told the officers
before the search that the apartment in question was rented to
a woman but that a man had also been living there. The man-
ager told the woman that she could either identify the male
occupant and put him on the lease or could pay an extra $100
per month if she wished him to remain anonymous. The
woman had chosen to pay the extra $100!

In short, there was clearly probable cause to believe that
evidence of crime was to be found in the apartment, but very
little reason to believe that an emergency entrance was
required. Although I recognize the deference owed to the
findings of the district court regarding the underlying facts, on
the totality of circumstances I cannot accept a conclusion that
this was a true emergency search and not a search for evi-
dence of crime. To my mind, this is exactly the kind of a situ-
ation that requires the decision of a neutral magistrate to
determine the propriety of a search.

There is no question that the procedures for a telephonic
search warrant were in place. The officers were on the scene
and the situation in the apartment was not changing. In my
view, they were required to secure a warrant before entering
the apartment. See United States v. Alvarez, 810 F.2d 879,
882-84 (9th Cir. 1987). Not to require a warrant in the cir-
cumstances of this case is to dilute impermissibly the protec-
tions of the Fourth Amendment. I would therefore reverse the
district court’s denial of the motion to suppress, and would
remand to permit Stafford to withdraw his plea of guilty.