dissenting.
I respectfully dissent. The majority has taken a rather simple but important case and converted it into a complex one. The sole issue to be decided is whether the defendant's motion to suppress methamphetamine seized from his premises should have been granted. Whether the law enforcement officers who conducted the search saw a methamphetamine lab when they entered the premises is irrelevant, because the sole charge to which Lloyd pled guilty was possession with intent to distribute methamphetamine, and the record evidence -establishes that the officers did not see any methamphetamine or other contraband during their initial entry and search of Lloyd’s apartment.
The government initially sought to justify the search and seizure of the methamphetamine on the basis of the search warrant they obtained from a magistrate. The district court rejected this approach, but held that because the officers acted in good faith in preparing and serving the warrant, which led to discovery of the methamphetamine, the methamphetamine should not be suppressed. The majority holds that the search warrant was defective, and also rejects the good-faith analysis employed by the district court. I agree with' the majority on both counts. Thus, the search and seizure of the methamphetamine can only be justified if the government established that an exception to the warrant requirement permitted its otherwise unconstitutional -intrusion. The majority relies on Kleinholz to support its view that exigent circumstances justified the search and seizure of the methamphet*956amine. In my view, that reliance is clearly misplaced. In Kleinholz, this court, relying on Collins, stated that
[Ojnce law enforcement had entered the house legally, pursuant to probable cause and exigent circumstances, they were not required to ignore the illegal drug operation; rather, they were free to take note of and even seize anything in “plain view. ” .... “Under the plain view doctrine, police may seize an object without a warrant if (1) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, (2) the object’s incriminating character is immediately apparent, and (3) the officer has a lawful right of access to the object itself.”
Kleinholz, 339 F.3d at 677 (quoting United States v. Collins, 321 F.3d 691, 694 (8th Cir.2003)) (citation omitted) (emphasis added).
Here, the government has not met its burden of showing that the methamphetamine seized, and the basis of the charge of conviction, was in plain view. On the contrary, the only evidence adduced on this point at the suppression hearing came from Lloyd’s attorney; the government did not even broach the topic in its presentation. Nick Hamilton, an officer with the Linn County Sheriffs Department, testified that he was present during the initial entry into Lloyd’s dwelling and actually took part in the initial, cursory search. He stated that he entered Lloyd’s residence and made certain that no one was present inside before exiting. Under questioning from Lloyd’s attorney, Hamilton asserted unequivocally that none of the contraband that supports charges against Lloyd was found during this entry and search:
Q. Okay. So at no time in your initial entry did you find the methamphetamine?
A. No.
Q. Okay. Did you find the marijuana during your initial entry?
A. No.
Q. Okay. What about the shotgun shells?
A. No.
(Suppression Hr’g. Tr. at 69.)
To accept the majority’s position, one must first accept that there actually were exigent circumstances (that is, an emergency situation) which would have justified a more thorough search of Lloyd’s residence. Still, since the methamphetamine was admittedly not in plain view, just a search of the residence would not suffice to sustain the district court’s judgment. Rather, one must go even further, and accept the speculative and unsupported proposition that such a search-purportedly designed to extinguish any exigeney-would be so extensive that it would have necessarily resulted in the discovery of the methamphetamine. This we should not do. I therefore respectfully dissent.