IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2009
Charles R. Fulbruge III
No. 08-30369 Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GREGORY BRIAN HEARN
Defendant-Appellant
No. 08-30377
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOEL DALLAS HAMMOND
Defendant-Appellant
No. 08-30387
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CASSANDRA WESSON COLLINS
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Defendants Gregory Hearn, Joel Hammond, and Cassandra Collins,
subject to the right to appeal the rulings on their motions to suppress, pleaded
guilty to various counts arising from their possession and distribution of
methamphetamine. In this consolidated appeal, the defendants challenge their
convictions, arguing that the district court erroneously denied their motions to
suppress evidence seized by law enforcement during or shortly after their
arrests. We affirm the district court’s judgment.
I. FACTS
A. Hearn’s arrest
In March 2007, officers of the Caddo Parish Sheriff’s Office received
information from two confidential informants that Hearn and Brad Blanton were
selling methamphetamine from room 1711 of the El Dorado Casino Hotel. The
second informant agreed to wear an audio transmitter and participate in an
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undercover purchase from the two suspects.1 The officers set up peephole
surveillance of the suspects’ room from the room directly across the hall, room
1710.
After furnishing the informant with cash to make the purchase, the
officers waited with the informant in the hotel parking lot while she attempted
to make phone contact with the suspects. While waiting, Blanton entered the
parking garage and the informant identified him to the officers. The observing
officers in room 1710 saw Blanton enter room 1711. The informant eventually
made phone contact with Hearn and proceeded to room 1711, purchasing twelve
grams of methamphetamine from the two suspects. After leaving the room, the
informant told the officers that she saw approximately one pound of
methamphetamine in the room and that, in addition to Hearn, another person,
later identified as Blanton, also remained in the room. Following this
conversation, one of the officers began drafting an application for a search
warrant of room 1711 based on the information learned during the undercover
purchase.
While working on the warrant application, the officers continued their
peephole surveillance of room 1711. At some point, Hearn exited the room and
proceeded down the hall toward the vending machine; three of the observing
officers followed close behind. When Hearn reached the vending machine, the
officers arrested him. There was no evidence that Hearn was attempting to flee
or posed a threat to the observing officers.
Although the officers had yet to obtain a warrant, they feared that Blanton
would become suspicious after Hearn failed to return from the vending machine,
causing him to possibly dispose of the drugs or arm himself for a confrontation.
Accordingly, the officers attempted to enter room 1711 with a key provided to
1
The officers did not make an audio recording.
3
them by hotel management. After the key failed to open the room, the officers
asked for and obtained Hearn’s key. The officers then entered room 1711 and
proceeded to arrest Blanton, who was sitting in a chair. According to the
officers, they seized evidence only in plain view and did not otherwise search the
room until obtaining a warrant.
B. Collins’s arrest
Immediately following their arrests, Hearn and Blanton agreed to
cooperate in the officers’ investigation. Blanton told the officers that he obtained
the methamphetamine found in room 1711 from a woman named “Lora” who
was staying in room 930 at the Diamond Jacks Casino Hotel.
The officers went to the Diamond Jacks Hotel and confirmed that a Lora
Tomlinson had been registered in room 930, but had moved to Room 940 because
of problems with the room’s air conditioner. The agents secured room 941
immediately adjacent to room 940. At approximately 7:50 p.m., a male later
identified to be Joel Hammond knocked on the door to room 940. Two females
in the room began to joke about a “password,” but the officers in room 941 could
not make out any other specific words. After a brief time in the room, Hammond
left.
Shortly after Hammond left, the officers in room 941 overheard three
unidentified females in room 940 engaging in general conversation. The officers
overheard the females counting money and making comments about someone
being a real drug dealer and like the ice cream man.2 One of the officers
testified: “Basically I figured out there were three girls in the room and they
were just talking in general. One of the first things that I had heard was one
girl . . . talking. At the time I had no idea who was who, but I could just tell
there were three different voices. And one girl stated that, you know: ‘Hey, now
2
“Ice” is a street name for methamphetamine of particular purity or appearance.
4
you’re a real dope dealer.’ And then another girl was like: ‘Yeah, I’m just like
the ice cream man selling ice cream everywhere.’” In the magistrate’s findings,
to which we must give deference, he concluded that there were three women
involved in this conversation.
At approximately 8:42 p.m., one of the females in the room, later identified
as Collins, left. Four plain-clothed officers followed her down the hall. The
officers testified that Collins was clutching her purse closely and acting in a
suspicious, nervous manner. They also acknowledged, however, that it would
not be unusual for a female to become somewhat nervous when followed closely
by four unknown males. As Collins entered the garage area, the officers
approached her, identified themselves as police officers, moved her into the
parking garage, and stated that they were investigating methamphetamine
distribution. They administered Miranda warnings and, before asking whether
she waived those rights, asked how much methamphetamine she had with her.
In response, Collins put her purse down on a nearby bench and advised the
officers that the methamphetamine was in her purse. One of the officers opened
the purse and found two envelopes containing a large amount of
methamphetamine.
The officers then transported Collins to the Louisiana State Police office
inside the Diamond Jacks Casino. Collins was asked whether she had any drugs
in her vehicle. She responded that she had a small amount of marijuana, a
marijuana pipe, and a methamphetamine pipe in her vehicle. Collins verbally
consented to a search of her vehicle. The search revealed the items that Collins
had mentioned, plus a set of digital scales.
C. Hammond’s arrest
As mentioned, prior to Collins’s arrest, Hammond met with the females in
room 940 for approximately ten minutes. After Hammond left the room, the
officers overheard the females in the room counting money and making
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comments to the effect that someone was a real drug dealer and like the ice
cream man.
Following Collins’s arrest, the officers returned to room 941 and resumed
their surveillance of room 940. The officers heard two unidentified female
voices. The females were utilizing the walkie talkie feature on a Nextel
telephone to communicate with a male who was traveling to the hotel from
Texas. The officers also periodically heard the sound of a butane lighter, an item
often used by individuals smoking methamphetamine.
At approximately 11:13 pm, the officers observed two females, later
identified as Lora Tomlinson and Selena Nichols, leave room 940. Tomlinson
went into the casino; Nichols went into the lobby, sat, and appeared to be text
messaging over her cell phone. A short time later, Hammond met Nichols in the
lobby. Nichols and Hammond then went into the elevator followed by a number
of undercover officers. When the elevator stopped on the ninth floor, the officers
expected the suspects to proceed to room 940. Instead, the suspects went to
room 923, a room that the officers did not have under surveillance and knew
nothing about. As Hammond was retrieving his card key and attempting to gain
entry into room 923, the officers arrested him, as well as Nichols. The district
court found that an individual from inside room 923, later identified as
Hammond’s wife, then opened the room’s door to investigate the commotion in
the hall. An officer asked Mrs. Hammond for permission to enter the room.
There is a conflict of testimony concerning what happened next. One officer
testified that Mrs. Hammond attempted to close the door in response to the
officer’s request, but the officers pushed the door open and walked in. Another
officer testified that Mrs. Hammond responded to the officer’s request by saying
that she needed to put some clothes on. While the door was still open, the
officers walked into the room.
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In any event, after the officers entered room 923, Mrs. Hammond
consented to a search of the room. The officers found a small amount of
marijuana and a methamphetamine pipe. Hammond, after being advised of his
Miranda rights, told the officers that he had two syringes in his sock, one loaded
with methamphetamine.
D. District court proceedings
Following their indictments for conspiracy to distribute and possession
with intent to distribute fifty grams or more of methamphetamine, the
defendants filed separate motions to suppress, which the district court denied.
As to Hearn, the court found that exigent circumstances justified the officers’
warrantless entry into room 1711. The court also observed that the officers did
not actually search the hotel room until they obtained a valid warrant. The
district court found that the officers had probable cause for Collins’s arrest and
that she knowingly and voluntarily waived her Miranda rights and freely
consented to the officers’ search of her vehicle. Finally, the district court found
that the officers had probable cause for Hammond’s arrest and that exigent
circumstances justified the officers’ warrantless entry into room 923. After these
rulings, the defendants each pleaded guilty to certain charges in the indictment.
Each defendant reserved the right to challenge the district court’s denial of his
or her motion to suppress.
II. DISCUSSION
In this consolidated appeal, the defendants challenge the propriety of the
district court’s suppression rulings. When examining a district court’s ruling on
a motion to suppress, we review questions of law de novo and factual findings for
clear error. United States v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002).
Factual findings are clearly erroneous only if a review of the record leaves this
Court with a “definite and firm conviction that a mistake has been committed.”
Id. (citation omitted).
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A. Defendant Hearn – grounds for entering room 1711
Hearn contends that the district court committed reversible error by
denying his motion to suppress the evidence. He argues that no exigent
circumstances excused the officers’ warrantless entry into room 1711, or,
alternatively, that the officers created the exigent circumstances through their
own actions.
We need not address Hearn’s arguments. Even assuming the
unlawfulness of the officers’ entry into room 1711, the district court’s denial of
Hearn’s motion to suppress must be affirmed based on the untainted portions of
the search warrant obtained by the officers shortly after their entry. See
Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (This court can “affirm
the district court’s judgment on any grounds supported by the record.”).
Under the independent source rule, “information which is received through
an illegal source is considered to be cleanly obtained when it arrives through an
independent source.” Murray v. United States, 487 U.S. 533, 538-39 (1988)
(quoting United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986)). The
Supreme Court has held that when evidence initially unlawfully seized is
subsequently obtained via a search warrant based on independent information,
the independent source rule applies to both evidence seen for the first time
during the lawful search and evidence seen in plain view at the time of the
warrantless search. Id. at 541-42. This circuit undertakes a two-part analysis
to determine whether the independent source rule applies: “(1) does the warrant
affidavit, when purged of tainted information gained through the initial illegal
entry, contain sufficient remaining facts to constitute probable cause (‘probable
cause’); and (2) did the illegal search affect or motivate the officers’ decision to
procure the search warrant (‘effect of the illegal entry’).” United States v.
Hassan, 83 F.3d 693, 697 (5th Cir. 1996).
8
The search warrant obtained by the officers following their entry into room
1711 satisfies both prongs of this two-part analysis. The warrant’s affidavit
contains ten numbered paragraphs. The first nine paragraphs describe, in
detail, the undercover drug purchase that the confidential informant made from
Hearn and Blanton in room 1711. Those paragraphs also describe the reliability
of the informant and the particular drug evidence she saw while in room 1711.
Paragraph ten – the only paragraph that contains information obtained during
the officers’ purported illegal entry – simply lists items that the officers saw in
plain view (more methamphetamine) and notes that the officers did not conduct
an actual search at that point. Thus, it is clear that the affidavit, once purged
of the information obtained through the officers’ allegedly unlawful entry, was
sufficient to give the officers probable cause to search room 1711. Moreover,
because the officers had begun preparing the search warrant application well
before their purported illegal entry – indeed, they began preparing the
application immediately following the undercover purchase – it is clear that
information obtained during the purported illegal entry did not motivate the
officers to seek the warrant. The district court’s denial of Hearn’s motion to
suppress is therefore affirmed.
B. Defendant Collins
Collins raises several challenges to the district court’s denial of her motion
to suppress. She argues that the officers violated her fourth amendment rights
when they opened the interconnecting door of room 941 in the Diamond Jack’s
Hotel and listened to the conversations of the occupants in room 940 by placing
their ears at the crack of the door. She also argues that the officers lacked
probable cause for her arrest and that her Miranda waiver and consent to have
her vehicle searched were not knowingly and voluntarily given.
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1. Probable cause
The existence of probable cause is a mixed question of fact and law.
United States v. Muniz-Melchor, 894 F.2d 1430, 1439 n.9 (5th Cir. 1990). This
Court reviews the factual findings underlying the district court’s probable cause
determination for clear error, but reviews the legal question of whether those
facts establish probable cause de novo. Id. If an arrest is invalid due to a lack
of probable cause, evidence discovered as a result of the arrest is subject to
suppression under the Fourth Amendment as the “fruit” of an illegal arrest. See
United States v. Ramirez-Lujan, 976 F.2d 930, 932 (5th Cir. 1993).
“Probable cause exists when the facts available at the time of the arrest
would support a reasonable person’s belief that an offense has been, or is being,
committed and that the individual arrested is the guilty party.” Hart v. O’Brien,
127 F.3d 424, 444 (5th Cir. 1997) (citation omitted); see also Maryland v. Pringle,
540 U.S. 366, 370 (2003) (Probable cause requires only “a reasonable ground for
belief of guilt.” (citation omitted)). Officers may have probable cause for an
arrest even if they have observed no criminal activity and are unaware of the
defendant’s identity. United States v. Pentado, 463 F.2d 355, 361 (5th Cir. 1972).
“The observation of unusual activity for which there is no legitimate, logical
explanation can be the basis for probable cause.” United States v. Alexander, 559
F.2d 1339, 1343 (5th Cir. 1977). “[A] police officer may draw inferences based
on his own experience in deciding whether probable cause exists,” Ornelas v.
United States, 517 U.S. 690, 700 (1996), including inferences “that might well
elude an untrained person.” United States v. Cortez, 449 U.S. 411, 418 (1981).
“[A] person’s mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable cause to search
that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1968). “Where the standard is
probable cause, a search or seizure of a person must be supported by probable
cause particularized with respect to that person.” Id. However, proximity is not
10
irrelevant; reasonable inferences may be drawn from a person’s connection to the
criminal activity. See Pringle, 540 U.S. at 372; United States v. Raborn, 872
F.2d 589 (5th Cir. 1989).
Following Blanton’s arrest, he told the officers that he received his
methamphetamine from “Lora” who was registered in room 930 (and then room
940) of the Diamond Jacks Hotel. Blanton’s status as a recent arrestee and
coinciding motive to lie made this information at least somewhat suspect, but
the officers were able to confirm that there was indeed a “Lora” registered at the
correct room at the Diamond Jacks Hotel. After setting up surveillance from
room 941, a male later identified as Hammond entered the room for
approximately ten minutes. Shortly after he left, one of the females in room 940
joked about someone being a real drug dealer now. Another female said
something about being like the “ice cream man.” At least one officer heard these
comments in the context of a conversation among three women. These
comments led the magistrate to conclude that there was probable cause to
suspect that all three were involved in the ongoing drug-related activity.
The force of Pringle here is obvious. Drug dealing was openly discussed
in the room, there was even joking about a “password,” and a sale was made to
a male who was admitted on his knock and left soon after. The three women in
the hotel room were not linked to the drug dealing by “mere propinquity.” There
was a reasonable probability that Collins was a player in the enterprise.3 The
district court’s ruling is not error under the facts presented and applicable law.
2. Miranda waiver and consent to search vehicle
After finding probable cause for her arrest, the district court also
concluded that Collins knowingly and voluntarily waived her Miranda rights
3
In Chief Justice Marshall’s words, “‘probable cause,’ according to its usual
acceptation, means less than evidence which would justify condemnation ....” Pringle, 540 U.S.
at 371 (quoting Locke v. U.S., 7 Cranch 339, 348 (1813)).
11
and consented to a search of her vehicle. A valid Miranda waiver requires two
distinct components. “First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception.” United States v. Cardenas,
410 F.3d 287, 293 (5th Cir. 2005) (citation omitted). “Second, the waiver must
have been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.” Id. (citation
omitted).
The facts relevant to this issue are as follows: four undercover officers
approached Collins as she was entering the parking lot of the Diamond Jacks
Casino; they identified themselves as officers; escorted Collins into the parking
garage; told her that they were investigating methamphetamine distribution;
advised Collins of her Miranda rights; and asked her questions which she
voluntarily answered. Nothing about these facts suggests that Collins’s decision
to answer the officers’ questions resulted from intimidation, coercion, or
deception. Collins was fully apprised of her Miranda rights and chose to waive
those rights by answering the officers’ questions. See North Carolina v. Butler,
441 U.S. 369, 374-76 (1979) (rejecting argument that Miranda waivers can never
be implicit); United States v. Cazares, 121 F.3d 1241, 1243 (9th Cir. 1997) (“To
solicit a waiver of Miranda rights, a police officer need neither use a waiver form
nor ask explicitly whether the defendant intends to waive his rights.”). Collins
had extensive experience with law enforcement as evidenced by her criminal
history category, and nothing in the record indicates that she lacked average
intelligence or education.
Thus, by choosing to answer the officers’ questions, Collins demonstrated
her intent to forfeit the Miranda rights she had just been read. The district court
considered the evidence and concluded that the consents were knowingly and
voluntarily given. We find no error in this determination.
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3. Eavesdropping techniques
Collins also contends that listening through the connecting door from the
adjoining hotel room was improper under the Fourth Amendment. We disagree.
The eavesdropping, engaged in from a lawful position in the room next door, was
not an unreasonable search under the Fourth Amendment, particularly as to
Collins, a temporary guest in a hotel room registered to another. See, e.g.,
United States v. Jackson, 588 F.2d 1046 (5th Cir. 1979).
C. Defendant Hammond
Hammond contends that the officers lacked probable cause to arrest him
outside of room 923. He further argues that the officers did not have consent or
valid exigent circumstances to enter room 923, or, alternatively, that the officers
themselves created the exigent circumstances. Finally, he contends that his
prior Texas conviction which resulted in the imposition of deferred adjudication
probation does not support enhancement under 21 U.S.C. § 841(b)(1)(B).
Hammond concedes that this final issue is foreclosed by our precedent, see
United States v. Washington, 480 F.3d 309, 318 (5th Cir. 2007), and thus we do
not address it further. Hammond’s remaining issues are considered in turn
below.
1. Probable cause
The record facts provided the officers with reason to believe that
Hammond had purchased methamphetamine from the occupants of room 940.
They therefore support the district court’s probable cause determination.
The officers observed Hammond enter a room registered to an individual
they suspected of distributing methamphetamine. He stayed in the room for just
a few minutes, then left. The limited duration of Hammond’s visit is consistent
with a drug transaction. Shortly after he left, the officers overheard one of the
females state, “you are a real drug dealer now” (implying that someone had just
sold Hammond drugs) and another female state that she was like the ice cream
13
man (meaning she distributed methamphetamine). The officers also overheard
the females counting money, activity consistent with their belief that the females
had sold Hammond drugs. Later, the officers heard the females using a butane
lighter, a device commonly used by those who smoke methamphetamine. Given
these facts, it was reasonable for the officers to conclude that Hammond was the
individual that the females in room 940 had sold drugs to. Indeed, that is the
most reasonable conclusion given these facts.
2. Exigent circumstances to enter room 923
As mentioned, the testimony concerning whether Mrs. Hammond
consented to the officers’ initial entry into room 923 is conflicting and the district
court did not make a fact finding on this issue. We need not delve into this
conflict, however, because the district court correctly held that Mrs. Hammond’s
decision to open the door to room 923 created exigent circumstances justifying
the officers’ warrantless entry.
A district court’s finding of exigent circumstances constitutes a factual
finding reviewed only for clear error. United States v. Howard, 106 F.3d 70, 74
(5th Cir. 1997). Exigent circumstances are generally found where there is a risk
to the safety of law enforcement or innocent bystanders, or that evidence might
be destroyed. United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997). In
United States v. Rico, this Court identified a non-exhaustive list of factors that
bear on the exigency analysis:
(1) the degree of urgency involved and amount of time necessary to
obtain a warrant;
(2) [the] reasonable belief that contraband is about to be removed;
(3) the possibility of danger to the police officers guarding the site
of contraband while a search warrant is sought;
(4) information indicating the possessors of the contraband are
aware that the police are on their trail; and
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(5) the ready destructibility of the contraband and the knowledge
that efforts to dispose of narcotics and to escape are characteristic
behavior of persons engaged in the narcotics traffic.
51 F.3d 495, 501 (1995) (citation omitted).
When evaluating the existence of exigency, this Court considers “the
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. Rodea, 102 F.3d 1401, 1405 (5th Cir. 1996) (citation omitted).
Our focus is on the totality of the circumstances leading up to the challenged
entry or search rather than on the isolated actions of law enforcement. Howard,
106 F.3d at 74. If reasonable minds could differ, we will “not second-guess the
judgment of experienced law enforcement officers concerning the risks of a
particular situation.” Blount, 123 F.3d at 838.
The district court found that, when the officers arrested Hammond and
Nichols in the hallway outside of room 923, Mrs. Hammond opened the door to
room 923 to see what the commotion was. At this point, the officers already had
evidence linking Hammond and Nichols to Lora (an individual that Blanton had
identified as his methamphetamine source), and to the drug activities that had
transpired in room 940. Because Hammond was attempting to enter room 923,
it was reasonable for the officers to assume that it was Hammond’s room or one
of his accomplice’s. Although the officers had no particular knowledge that
weapons were located in room 923, “fear for officer safety may be reasonable
during drug arrests, even in the absence of any particularized knowledge of the
presence of weapons, because in drug deals it is not uncommon for traffickers to
carry weapons.” United States v. Maldonado, 472 F.3d 388, 394 (5th Cir. 2006)
(citation and internal quotation omitted). Finally, the officers had no idea who
the individual opening the door to room 923 was, or whether that individual
intended the officers harm. Under these circumstances, exigency justifying the
15
officers’ protective sweep of room 923 existed on two grounds: (1) that the
individual opening the door to room 923 might be armed; and (2) that the
individual, upon seeing the officers, might attempt to dispose of any drugs
contained in room 923.
3. Manufactured exigency?
The validity of the district court’s exigency finding, however, does not end
this Court’s inquiry. The government cannot rely on exigent circumstances to
excuse a warrantless entry if it created the exigent circumstances through its
own actions. Rodea, 102 F.3d at 1410. “We distinguish between cases where the
exigent circumstances arise naturally during a delay in obtaining a warrant and
those where officers have deliberately created the exigent circumstances.” Id.
at 1409 (citation omitted). When determining whether the government created
the exigent circumstances, this Court considers not just the motivation of the
officers, but also the reasonableness and propriety of the investigative tactics
that created the exigency. Id.
Hammond contends that the officers created any exigency that may have
existed by knocking on the door to room 923, causing Mrs. Hammond to open it.
But, as mentioned, the district court concluded that Mrs. Hammond opened the
door to room 923 to investigate the commotion created by Hammond’s arrest as
he attempted to enter room 923 with his card key. Testimony from the
suppression hearing supports this fact finding. Thus, Mrs. Hammond’s initial
appearance in the hallway, and the perceived risk to the officers created by that
appearance, resulted from the actions of Hammond, not those of the officers. See
United States v. Newman, 472 F.3d 233, 239 (5th Cir. 2006) (“When the
occupants of the house create the circumstances amounting to the exigency in
response to a reasonable law enforcement tactic, the agents cannot have
manufactured it themselves.”). The reasonableness of the officers’ actions are
further supported by Hammond’s unanticipated decision to attempt to enter
16
room 923 (as opposed to room 940), a room that the officers did not have under
surveillance and knew nothing about. Thus, when the officers approached
Hammond, they had probable cause for his arrest, he was attempting to enter
an unidentified room, and the officers did not know whether the room was
occupied. Under these circumstances, we do not conclude that the officers
manufactured the exigency created by Mrs. Hammond’s sudden appearance in
the hallway. The officers were therefore justified in making warrantless entry
into room 923.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
17