United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-10185
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELBERT ALAN HALE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-65-ALL-A
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Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Elbert Alan Hale pleaded guilty pursuant to a written plea
agreement to unlawful possession of a destructive device. In his
plea agreement, Hale reserved the right to challenge the district
court’s denials of his motion to suppress and his motion to
dismiss the indictment. He was sentenced to 63 months of
imprisonment, three years of supervised release, and a $100
special assessment.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-10185
-2-
Hale argues at length on appeal that the district court
erred in denying his motion to suppress evidence obtained during
a warrantless search of his residence. He contends that the
search violated the Fourth Amendment because his landlord did not
have authority to consent to police officers’ entry into his
residence. However, in denying Hale’s motion to suppress, the
district court assumed that the landlord had not been able to
give consent and did not base its ruling on this issue.
Hale also makes a brief, vague argument that the Government
did not provide evidence at the suppression hearing supporting
its contention that the “community caretaking” and “exigent
circumstances” doctrines applied. However, officers’ knowledge
that Hale’s residence contained items that might be explosive
devices constituted sufficient exigent circumstances because the
devices presented a possible danger to officers guarding the
residence and to others in the community. See United States v.
Richard, 994 F.2d 244, 247-48 (5th Cir. 1993); cf. United States
v. Shannon, 21 F.3d 77, 81-82 (5th Cir. 1994) (arrestee’s yelling
of location of gun in motel room outside of which he had been
arrested constituted exigent circumstances to search the room
because any other possible suspects inside the room would be
alerted to the location of the gun, thus endangering the lives of
officers and other motel guests).
Hale also argues that the district court erred in adjusting
his offense level by two points for obstruction of justice. He
No. 04-10185
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asserts that his choice not to self-surrender in spite of his
indication in negotiations with police that he would do so once
an arrest warrant was issued and his subsequent move to another
state did not warrant such an adjustment. He contends that the
commentary to U.S.S.G. § 3C1.1 lists “avoiding or fleeing from
arrest” as an example of conduct not warranting the adjustment.
However, this court has identified two factors distinguishing
obstructive and non-obstructive conduct: “(1) whether the
conduct ‘presents an inherently high risk that justice will be
obstructed’; and (2) whether the conduct ‘requires a significant
amount of planning,’ as opposed to being ‘the result of a spur of
the moment decision’ or ‘stem[ming] from merely panic, confusion,
or mistake.’” United States v. Philips, 210 F.3d 345, 348 (5th
Cir. 2000) (quoting United States v. Greer, 158 F.3d 228, 235
(5th Cir. 1998)). Under these factors, Hale’s planned flight
from police, which resulted in a five-month delay in proceedings
against him, obstructed justice.
Hale also argues that the statutes under which he was
convicted, 26 U.S.C. §§ 5845, 5861(d), and 5871, are overbroad
and impermissibly vague in violation of the Fifth Amendment
because they do not define “explosive bomb.” However, the
statutes are not unconstitutionally vague or overbroad as applied
to Hale. See United States v. Daniels, 247 F.3d 598, 600 (5th
Cir. 2001); United States v. Thomas, 567 F.2d 299, 300 (5th Cir.
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1978) (“words of a statute are to be given their ordinary meaning
in the absence of persuasive reasons to the contrary”).
AFFIRMED.