IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-3697
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES N. RILEY,
Defendant-Appellant,
______________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_______________________
July 29, 1992
Before HIGGINBOTHAM, DUHE, Circuit Judges, and HUNTER1, District
Judge
EDWIN F. HUNTER, JR., District Judge:
Defendant was indicted on one count of possession of cocaine,
in violation of Title 21, United States Code, § 844(a), and one
count of possession of a firearm by a convicted felon, in violation
of Title 18, United States Code, § 922(g)(1). He was found "not
guilty" as to Count I (possession of cocaine) and "guilty" as to
Count II (possession of a firearm by a convicted felon).2 He
1
Senior District Judge of the Western District of Louisiana
sitting by designation.
2
Presently, Riley has completed his 10 month incarceration
sentence and is now on 3 years supervised release.
challenges the district court's denial of his motion to suppress
the evidence obtained by the warrantless entry of his residence and
the subsequent search. Finding no error, we affirm.
I.
FACTS
The police officers were aware that a drug deal had been set
for Sunday night at 9:00 o'clock p.m. They knew that deal had been
arranged from a house at 8233 Curran Boulevard in New Orleans.3
The house was placed under surveillance.
After twenty to thirty minutes, officers observed Terry Moore
leave the house. He was carrying a white bag. Two officers
previously assigned to watch the house followed as he drove to the
LaQuinta Motor Inn where the drug deal was to be consummated.
Moore was arrested on a drug charge. The white bag contained
cocaine. He informed the officers that there was a large sum of
money, a gun, and another person in the house at 8233 Curran
Boulevard. Defendant was the lessee of the residence at that site.
Armed with the fact that Moore possessed cocaine, the gun and
money information furnished by Moore, and the cellular phone which
Moore possessed, the commanding officer dispatched anywhere from
six to nine police officers to 8233 Curran Boulevard to "secure the
residence." The officers forced opened the front door. Appellant
3
At oral argument, the government stated that the officers
listened in on the conversation when informant made the call to the
house on Curran Boulevard. The officers heard the informant and
someone named Terry discuss an imminent drug transaction. It is
noteworthy that the record does not support such particulars. The
record does support that the officers knew the deal had been set up
from that residence.
2
was in the bedroom. A protective sweep of the house was conducted.
Riley was detained pending investigation and advised of his Miranda
rights.
The officers prepared to procure a search warrant. Riley
informed that a search warrant was not necessary; that there was
nothing inside the residence, and that the officers were free to
search. The officers assured his voluntary consent to the
warrantless search of his house by having Riley sign a "Permission
for Search and Seizure" form.4 This form was witnessed by two NOPD
officers. After consent was given, the officers found, in Riley's
residence, $14,000 and a gun hidden under a waterbed mattress, and
a small amount of cocaine in a bathrobe.
Resolution of defendant's motion to suppress requires us to
address two separate issues: first, whether the entry and internal
securing of the premises constituted an impermissible seizure;
second, whether the subsequent written consent to search was
voluntary.
4
The form reads in pertinent part:
". . . PERMISSION FOR SEARCH AND SEIZURE
. . . . IN ORDER TO COOPERATE WITH . . . .
I AM GIVING THIS WRITTEN PERMISSION To these police
officers freely and voluntarily without threats or
promises having been made to me and after having been
informed by these officers that I have the right to
refuse to permit this search and seizure. It is my
desire to assist them the extra time it would take to
obtain a search warrant, and for this reason I have given
my consent.
/s/ Charles N. Riley"
3
II.
The Warrantless Entry
Defendant insists that the officers' initial entry into the
residence without a warrant was violative of his Fourth Amendment
rights, and that, any evidence discovered during the subsequent
search should have been suppressed as "fruit" of this illegal
entry. Riley also argues that the Permission for Search and
Seizure was not freely and voluntarily given. The district judge
concluded that there was probable cause to secure the home and
valid consent to conduct the search.
In reviewing the ruling on the motion to suppress, this Court
must accept the district court's factual findings unless they are
clearly erroneous or are influenced by an incorrect view of the
law. United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th
Cir.1990), cert. denied, U.S. , 110 S.Ct. 1957 (1990);
See also United States v. Reed, 882 F.2d 147, 149 (5th
Cir.1989)(Evidence viewed in light most favorable to the party
prevailing below).
A warrantless entry into a home to effectuate a search or
seizure is presumptively unreasonable. See Payton v. New York, 445
U.S. 573, 586-87, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). The
"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, 92 S.Ct. 2125,
2134, 32 L.Ed.2d 752 (1972); U. S. v. Capote-Capote, 946 F.2d 1100
(5th Cir.1991). We recognize that individual interests outrank
4
government convenience in Fourth Amendment balancing. But, we
hasten to add that exigent circumstances may justify a warrantless
entry. See Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 1690,
109 L.Ed.2d 85 (1990). Because a warrantless search is presumed to
be unreasonable, the Government has the burden of proving that the
warrantless search was conducted pursuant to an exception. Coolidge
v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564
(1971).
Here, the police had abundant probable cause to believe that
there was a criminal drug operation being carried out from Riley's
house. The only issue is whether exigent circumstances existed to
justify the warrantless entry.5 Courts have catalogued numerous
situations in which exigent circumstances exist. But the final
answer must be applied carefully to the individual factual
scenario. Relevant factors for a determination of exigent
circumstances include: (1) the degree of urgency involved and
amount of time necessary to obtain a warrant; (2) a reasonable
belief that contraband is about to be removed; (3) the possibility
of danger to police officers guarding the site of contraband while
a search warrant is sought; (4) information indicating the
contraband's possessors know police are on their trail; and (5)
the ready destructibility of the contraband. See United States v.
5
Arguably, the wiser course might have been to secure the
premises from the outside while waiting for the warrant. But, the
entry made here does not require a different result under the
Fourth Amendment. The "heightened protection we accorded privacy
interests is simply not implicated where a seizure of premises, not
a search, is at issue." Sequra v. United States, 468 U.S. 796, 104
S.Ct. 3380, 3388, 82 L.Ed.2d 599 (1984).
5
Vasquez, 953 F.2d 176, 180 (5th Cir.1992); United States v. Capote-
Capote, 946 F.2d 1100, 1103 (5th Cir.1991)(listing examples of
exigent circumstances that may justify warrantless entry); United
States v. Thompson, 700 F.2d 944, 948 (5th Cir.1983), affirmed on
appeal after remand, 720 F.2d 385 (5th Cir.1983); United States v.
Reed, 935 F.2d 641, 642 (4th Cir.1991).6
Officers were aware of the impending deal which Moore
finalized. They knew that he had set up the "deal" from 8233
Curran Boulevard. They observed Moore leave 8233 Curran Boulevard.
He was carrying a plastic bag; he was arrested. Moore advised the
officers that there was a large sum of money, a handgun and another
individual at the residence he had just left. Sergeant Cimino,
with 13 years experience with the NOPD narcotics, concluded that
there was a good probability that the fruits, instrumentalities and
evidence of a narcotic trafficking crime would be found in the
house. He realized that Moore possessed a cellular phone. He
believed that, since the house had not been secured, the appellant
could arm himself and/or destroy or remove contraband in the time
that it would take to procure a warrant. It was a Sunday night.
The warrant would not be fast coming.
The presence of a cellular phone indicated to the officers
that Moore was going to report back and failure to call back or
return would alert the other occupant that something had gone
wrong. See United States v. Espinoza-Seanez, 862 F.2d 526, 538
6
The need to invoke the exigent circumstances exception is
particularly compelling in narcotic cases because of the ease, with
which they may be destroyed.
6
(5th Cir.1988)(Court noted that jury could have decided that the
presence of cellular phone are the "tools of the trade" of a drug
dealer); See United States v. Wulferdinger, 782 F.2d 1473, 1476
(9th Cir.1986)(Fact that one's failure to return might cause those
inside to dispose of any evidence can be considered when
determining exigent circumstances). Sergeant Cimino was influenced
by the fact that Moore had cocaine in his possession. Surely he
was justified in his belief that there was a great probability that
drugs would be found. The need to preserve evidence that may be
lost or destroyed if a search is delayed is and has long been a
consideration in determining the existence of exigent circumstance.
United States v. Johnson, 802 F.2d 1459, 1462 (D.C. Cir.1986);
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d
908 (1966)(The destruction of evidence presents the requisite
exigency). Courts should consider "[t]he appearance of the scene
of the search in the circumstances presented as it would appear to
reasonable and prudent men standing in the shoes of the officers."
United States v. Wysocki, 457 F.2d 1155, 1160 (5th Cir.), cert.
denied 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972); United
States v. Socey, 846 F.2d 1439, 1446 (D.C. Cir.), cert. denied, 488
U.S. 858, 109 S.Ct. 152, 102 L.Ed.2d 123 (1988).
The gun is a factor. See United States v. Reed, 935 F.2d 641
(4th Cir.1991)(lists an array of cases which substantiate that
presence of a gun can justify warrantless entry). Sergeant Cimino
feared that in the time incurred to obtain a warrant the occupant
could arm himself with the gun. A man with a gun could endanger
7
the police in setting up a perimeter surveillance.
Two other factors that are noteworthy. The drug deal was on
Terry Moore's terms. Prior to Sunday, the investigation did not
entail the house at 8233 Curran Boulevard. It had only been under
surveillance for twenty to thirty minutes when Moore exited the
residence. The officers left the house unattended. Time was of
the essence. The mandible delay incident to obtaining a warrant
sometimes must yield to the need for immediate action. They had no
idea of what might develop. The officers certainly had a
reasonable belief that: 1) a person occupied the private dwelling
in question; 2) the occupant would become aware of the
investigation because of the implications of the cellular phone;
3) the occupant could thus arm himself with the gun; and 4) drugs
could be found and/or destroyed. This was all weighed against the
time delay necessitated to procure a warrant. Such delay in
securing a warrant in a large metropolitan center on a Sunday night
unfortunately is not uncommon.
We are not prepared to say under the limited circumstances of
this case that the seizure was unreasonable under the Fourth
Amendment.
III.
Was the Consent to Search Voluntarily
Appellant insists that the consent to search was not given
freely and voluntarily. Counsel suggests that it was only an
acquiescence to an inevitable situation by virtue of the
8
overwhelming presence of the police in appellant's home.7
The voluntariness of consent must be determined by an
examination of the totality of the circumstances. United States v.
Davis, 749 F.2d 292, 294 (5th Cir.1985). "Where the validity of a
search rests on consent, the State has the burden of proving that
the necessary consent was obtained and that it was freely and
voluntarily given, a burden that is not satisfied by showing a mere
submission to a claim of lawful authority." Florida v. Royer, 103
S.Ct. 1319, 1324 (1983); See United States v. Lopez, 911 F.2d
1006, 1010 (5th Cir.1990), citing to Schneckloth v. Bustamonte, 412
U.S. 218, 248, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973)(It must
be shown that the consent was not given "simply in acquiescence to
a claim of lawful authority"). Proof of a voluntary and effective
consent must be proven by a preponderance of the evidence. United
States v. Hurtado, 905 F.2d 74, 75 (5th Cir.1990). There are many
factors to be considered. This Court has previously announced
certain ones:
(1) the voluntariness of the defendant's custodial
status; (2) the presence of coercive police procedures;
(3) the extent and level of the defendant's cooperation;
(4) the defendant's awareness of his right to refuse
consent; (5) the defendant's education and intelligence,
and (6) the defendant's belief that no incriminating
evidence will be found. United States v. Galberth, 846
F.2d 983, 987 (5th Cir.1988), cert. denied, 488 U.S. 865.
The record reveals that an officer informed Riley that the
7
Appellant makes two arguments with respect to the consent
issue. The aforementioned and also that the illegality of the
initial entry was not so attenuated to dissipate the taint. We
need not address this issue because of our finding that the initial
entry was not a violation of his constitutional rights.
9
police were going to seek a search warrant. The record reveals
that Riley voluntarily consented to the search. The consent was
the intervening factor which detoured the procurement of a warrant.
The officers advised Riley of his Miranda rights. The consent was
given in surroundings familiar to Riley, as opposed to the police
station house. Riley demonstrated at the suppression hearing that
he had sufficient intelligence to read and understand the search
and seizure form.8
Conclusion
We are persuaded that sufficient exigency existed to justify
the warrantless entry by the police, and that the subsequent
consent to search was valid.
The conviction and sentence are affirmed.
8
The district court concluded that Appellant signed the form
and that it had been signed before the search was conducted and
that he did so voluntarily. The district court was entitled to make
these conclusions based on his perception as to witness
credibility. Absent clear error, we accept the district court's
findings.
10