dissenting:
I respectfully dissent. In my view the record does not support the finding that, prior to the agents’ return to the apartment and identification of themselves as police officers, there were exigent circumstances justifying a warrantless entry. There is of course some common ground between my views and those of the majority. Plainly there was probable cause, and I agree that eventually the circumstances became exigent. But probable cause is not the equivalent of exigency, and I cannot endorse what I view as the agents’ deliberate creation of an exigency in order to circumvent the warrant requirement of the Fourth Amendment.
The Lack of Exigency Prior to the Officers’ Return
There is no doubt that there was probable cause to believe that narcotics were being sold in apartment 1-0. The government concedes that it had probable cause at least as of the time, some 30 minutes prior to the forced entry, when the agents interrogated persons who had just been in the apartment; and the observations of Agent Agee during his undercover buy of course added to the probable cause. But, notwithstanding the majority’s apparent view to the contrary, see ante at 771 (“[cjonsistent with well-settled law, the district court found that once the undercover agent had firsthand knowledge of the suspects’ undertakings inside the apartment, exigent circumstances were present”), probable cause is not tantamount to exigent circumstances. I know of no law, settled or otherwise, that mere firsthand knowledge of a crime constitutes exigent circumstances permitting a warrantless entry.
Nor do I agree with the majority’s view that the warrantless entry was justified by exigent circumstances on the ground that Agee could lawfully have arrested the occupants of the apartment when he was there during the undercover buy. Having probable cause for arrest, Agee could indeed have arrested them lawfully at that point, but that power was unrelated to any exigent circumstances; he could have arrested them then because he was lawfully in the apartment by reason of their consent. See Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374, 63 L.Ed.2d 639 (1980); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Consent and exigent circumstances are separate exceptions to the warrant requirement and should not be confused. Further, consent is not boundless, see State v. Douglas, 123 Wis.2d 13, 365 N.W.2d 580, 584 (1985) (implied consent to enter to render emergency assistance did not constitute authorization for second entry two days later); cf. United States v. Dichiarinte, *774445 F.2d 126, 129 (7th Cir.1971) (“a consent search is reasonable only if kept within the bounds of the actual consent”), and there is no basis for inferring that the occupants’ consent to Agee’s first entry extended to his later return. If such consent as was given is an appropriate justification for the entry in this case, it is difficult to see that today’s decision does not give an agent license, whenever he has gained admission to the premises to make an undercover purchase, to leave and return bringing in his troops without need for a warrant.
In concluding that there were exigent circumstances before the agents returned to the apartment and made the suspects aware of their official presence, the majority emphasizes 10 factors that in its view support the district court’s ruling. In my view its analysis is flawed.
“[T]he burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries,” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 2098, 80 L.Ed.2d 732 (1984), and the burden is a heavy one. This Court has repeatedly noted that no single fact is dispositive and that the ultimate question, to be answered in light of the totality of the circumstances, is whether law enforcement agents were confronted by an “urgent need” to make immediate entry. United States v. Crespo, 834 F.2d 267 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988); United States v. Martinez-Gonzalez, 686 F.2d 93 (2d Cir.1982); United States v. Reed, 572 F.2d 412 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978); Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970).
We have not upheld warrantless entries where agents lacked an objective basis— other than their own actions unnecessarily alerting the defendants to their presence — ■ to believe there was an urgent need to enter the premises without waiting to obtain a warrant. Thus, in United States v. Reed, 572 F.2d 412 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978), we ruled that there were no exigent circumstances where the officers had made purchases from the targeted defendants some 2Va months earlier and had had no contact with them since:
[Ijnasmuch as the DEA Agents had no contact whatsoever with Reed or Goldsmith for two and one-half months prior to their arrest, and since there is no suggestion of a change in the status of the investigation during that period, we cannot conclude that exigent circumstances were present.
Id. at 424-25.
In United States v. Agapito, 620 F.2d 324 (2d Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980), we invalidated a warrantless entry into a hotel room, which the government argued had been necessary in order to prevent the destruction of evidence. We noted that the only persons the agents had seen enter or leave the room during two days of surveillance had been arrested in the hotel lobby, 17 floors below the room, and that
even if the agents here thought that accomplices remained in the room, there was no reason for them to believe that the accomplices knew of the arrests so that they might destroy evidence....
Id. at 336. We thus reversed the district court’s denial of defendants’ suppression motion since the circumstances were not exigent.
In United States v. Segura, 663 F.2d 411 (2d Cir.1981), aff'd on other grounds, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), we upheld the district court’s finding that the circumstances were not exigent where the police had been able safely to conduct surveillance of an apartment for three hours, had arrested one of the defendants at the front door of the building which “could not have been observed from [the apartment], and there was no evidence that anyone saw the arrest and reported it to the inhabitants of [the apartment].” Id. at 415. The agents had proceeded to create an exigency by dragging the arrested defendant to the apartment and banging on the door. We declined to “permit[] the agents to ‘create their own exigencies ... and then “secure” the premises on the the*775ory that the occupants would otherwise destroy evidence.’ ” Id. (quoting United States v. Allard, 634 F.2d 1182, 1187 (9th Cir.1980)); see United States v. Rossetti, 506 F.2d 627, 630 (7th Cir.1974).
The principal factor relied on by the majority in the present case to reach the conclusion that there was an urgent need to enter without a warrant is that narcotics trafficking is a grave offense. Indeed it is; but though certain types of crimes, such as attempted murder or arson, create an inherent exigency while in progress, narcotics trafficking is not of that genre. There has never been an exigent circumstances exception permitting a warrantless entry simply because the offense involves narcotics. Nor was an exigency created in the present case by the fact that there were firearms in the apartment. “We often have taken judicial notice that, to substantial dealers in narcotics, firearms are as much tools of the trade as are the commonly recognized articles of narcotics paraphernalia.” United States v. Crespo, 834 F.2d 267, 271 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988). Accord United States v. Torres, 901 F.2d 205, 235 (2d Cir.1990) (“tools of the trade”); United States v. Premises & Property at 4492 South Livonia Rd., 889 F.2d 1258, 1269 (2d Cir.1989) (same); United States v. Rivera, 844 F.2d 916, 926 (2d Cir.1988) (same); United States v. Fernandez, 829 F.2d 363, 367 (2d Cir.1987) (per curiam) (same). Thus, emphasis on the presence of firearms for the view that the circumstances were exigent suggests that whenever there is probable cause to believe that narcotics offenses are being committed, the agents should be allowed to ignore the warrant requirement.
The majority’s concern that the agents and the public were in danger appears to be premised on the presence of firearms in the apartment and the generally violent nature of the narcotics trafficking business. (The suggestion that the suspects themselves had likely been smoking marijuana in the apartment goes beyond the record. Agee testified that he had smelled marijuana smoke but that he did not see any of the suspects smoking.) There is of course an inherent danger when crime is ongoing and the perpetrators wish (a) to continue and (b) to escape capture. This danger is not of emergency proportions, however, when the perpetrators are unaware that they are under suspicion, especially where they have not taken such security precautions as posting lookouts.
The total lack of awareness by the suspects in the present case, prior to the agents’ return to the apartment, is virtually ignored by the majority. Thus, in concluding that there was a likelihood that the suspects would escape and evidence would be destroyed, the majority apparently sees no significance in the fact that this operation had been ongoing in apartment 1-0 since May, i.e., some four months before the agents’ surveillance, and that there was no reason to believe it would be moved. (The fact that the suspects had a second apartment in the building did not suggest that the narcotics seen by Agee would likely be moved out of l-O. The government’s informant said she had seen narcotics stored in both apartments, not that there was a shifting or compartmentalized operation.) There was no basis for believing that the occupants of the apartment had been alerted to the September 8 surveillance prior to the agents’ announcement of their official presence. The agents had received no information and had seen no indication that the suspects had any kind of security devices in the apartment or had posted any lookouts in the area. The surveillance was conducted by a team of agents whose ethnic makeup matched that of the civilians coming and going in the neighborhood. The surveillance was inconspicuous; the building was large, and there was a good deal of traffic in and out with respect to apartments other than l-O; the agents’ vehicles were placed so circumspectly that even Agee did not know where those other than his own were parked. An agent followed Agee into the building when he made his controlled buy, and was so discreet that even Agee could not spot him.
The surveying agents’ questioning of visitors to apartment 1-0 was likewise circumspect. They interrogated the occu*776pants of only one car, which they took care not to intercept until it was several blocks away from the building and could not be seen by the suspects. Nor did anything that occurred during Agee’s subsequent purchase appear to alert the suspects. Agee testified that none of the occupants of the apartment knew who he was. He bad never seen any of them before. There was simply nothing in the record to suggest that the suspects would suddenly, after at least four months of operation, start to destroy their business assets, nor any indication that a suspect who left the apartment (which was apparently used more as a stash pad than as a residence) was somehow “escap[ing],” see, e.g., ante at 770, rather than leaving temporarily.
Finally, though the majority also relies on the difficulty that the agents would have had in obtaining a search warrant speedily because of the lateness of the hour at which they entered, I do not believe the government met its burden of showing that the timing was a permissible justification. Agee testified that there was never any discussion whatever of the possibility of obtaining a warrant. Further, the government concedes that the agents had probable cause to obtain a warrant at least a half-hour before their forced entry, i.e., as of the time they obtained statements from persons who had just come from the apartment, confirming the agents’ existing information from the informant and from their own observations of the stream of 15-20 quick visits to the apartment. I do not believe we should allow law enforcement officers who have probable cause early to tarry and then justify a warrantless entry on the basis of the lateness of the hour.
In sum, though the majority correctly notes that the offenses were grave, firearms were present, and there was ample probable cause for arrest or a search warrant, I do not believe it can be found, considering the totality of the circumstances, that there was any urgency for the agents to enter without obtaining a warrant.
The Eventually Contrived Exigency
When the agents returned to the apartment and announced their official presence, there were sounds of haste within, and some of the occupants of the apartment tried to climb out of the apartment window. At that point there was reason to fear that the suspects would attempt to escape or destroy evidence, and exigent circumstances existed. But I do not believe we should allow law enforcement agents deliberately to create an exigency in order to justify a warrantless entry.
I find it difficult to conceive of the officers’ return to the apartment as anything other than pretext, in an effort to precipitate a crisis that did not then exist. Though Agee stated that he returned in the hope that the occupants would give him consent to search the apartment, that explanation should, in the circumstances, be found not credible as a matter of law. Agee testified that when he made his undercover purchase, he saw two firearms in the apartment, and one of them was held cocked and pointed in his direction while he was in the apartment. It was not objectively reasonable for the officers to hold any belief that suspects who took such precautions during an apparently innocuous buy would voluntarily consent to a search by law enforcement officers. Since the agents’ suggestion that they returned because they thought they could gain entrance to search by consent defies credulity, and since the agents plainly anticipated that the announcement of their identity would precipitate an exigency, for they came armed with a battering ram, I think the agents must be regarded as having deliberately created the exigency precisely to justify their warrantless entry. We should not endorse such contrivances by law enforcement officials in their efforts to circumvent the Fourth Amendment’s warrant requirement.
Conclusion
The majority’s ruling today gives law enforcement officers broad license to enter premises without a warrant. Apparently, they need no more than to have probable cause for belief that there is ongoing narcotics trafficking within and to request en*777try; if they hear any sounds in response other than the purest of verbal refusals, they can justify a warrantless entry by their fear that evidence will be destroyed or that suspects will escape. Indeed, it appears that the majority would allow the agents to enter simply on the basis that one agent had recently been on the premises by consent and witnessed the trafficking. After this decision there appears to be little left of the warrant requirement in narcotics cases.
The totality of the circumstances in this case reveals an entrenched narcotics operation, carried on in apartment 1-0 for at least four months, by persons who, before the agents’ trumpeting of their official presence, were totally unaware of the surveillance, of the interrogation of their customers, and of the undercover nature of Agee’s purchase. I believe that on this record the finding that there was an urgent need to disregard the Fourth Amendment’s warrant requirement is clearly erroneous.
Accordingly, I would vacate MacDonald’s conviction and remand to the district court for a finding as to whether or not he had standing to challenge the warrantless entry.