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United States v. Cruz

Court: Court of Appeals for the Tenth Circuit
Date filed: 2020-10-09
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                                                                                     FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                            October 9, 2020

                                                                            Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 19-2127

 JOSE JESUS CRUZ,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                            for the District of New Mexico
                           (D.C. No. 1:18-CR-01105-JB-1)
                       _________________________________

Carey C. Bhalla, Albuquerque, New Mexico, appearing for Appellant.

Tiffany L. Waters, Assistant United States Attorney (John C. Anderson, United States
Attorney, with her on the briefs), Office of the United States Attorney for the District of
New Mexico, Albuquerque, New Mexico, appearing for Appellee.
                        _________________________________

Before BRISCOE, MURPHY, and MATHESON, Circuit Judges.
                  _________________________________

BRISCOE, Circuit Judge.
                     _________________________________

       Defendant-Appellant Jose Jesus Cruz entered a conditional guilty plea to

possession of heroin with intent to distribute and to possession of a firearm during a

drug trafficking crime. Mr. Cruz appeals the district court’s denial of his motion to

suppress evidence, arguing that evidence should have been excluded because it was
the result of an unlawful search and seizure. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                           I

      Mr. Cruz was charged in a four-count superseding indictment: Count 1, being

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); Count 2,

possession of fifty grams or more of methamphetamine with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); Count 3, possession of heroin

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);

Count 4, using and carrying a firearm during and in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). ROA, Vol. I at 46–47. Mr. Cruz

moved to suppress evidence police recovered during a search of Mr. Cruz’s residence

and vehicle, arguing that police officers made a warrantless entry into his home

unsupported by probable cause and that no exigent circumstances justified the entry.

Id. at 11–24.

      At the hearing on the motion to suppress, Detective Gerald Koppman of the

Bernalillo County Sheriff’s Department testified to the following: In the fall of 2016,

Detective Koppman learned that a person named “Chino,” who was subsequently

identified as Mr. Cruz, was trafficking narcotics. Id., Vol. III at 13. Mr. Cruz was on

federal probation at the time, and Detective Koppman arranged to meet with him to

obtain information about another drug trafficker who was a target of Detective

Koppman’s investigation. Id. at 13–14. Mr. Cruz admitted to trafficking and selling

drugs. Id. at 14. Detective Koppman concluded any contact with Mr. Cruz after the

                                           2
target was apprehended. Id. at 15. Approximately a year later, in early August 2017,

a confidential informant (CI) told Detective Koppman about a person named “Chino”

who was selling large quantities of narcotics. Id. at 16. Detective Koppman showed

the CI a photograph of Mr. Cruz, whom the CI identified as “Chino.” Id. The CI

stated that he 1 had met Mr. Cruz outside of Mr. Cruz’s residence at Lansing and

Airway to purchase methamphetamine. Id. at 16–17. The CI also provided a phone

number for Mr. Cruz. Id., Vol. I at 28. The CI believed Mr. Cruz was obtaining

narcotics through a trafficker from Arizona who moved hundreds of pounds of

narcotics through Albuquerque monthly. Id., Vol. III at 20.

      On September 5, 2017, Detective Koppman executed a search warrant on

another suspect and found a large quantity of methamphetamine. Id. at 16, 46. The

suspect agreed to cooperate with Detective Koppman as a Confidential Source (CS).

The CS named “Chino” as his supplier, and when shown a photograph of Mr. Cruz,

the CS said that was the person he knew as “Chino.” Id. at 16. The CS stated that he

regularly conducted narcotic transactions with Mr. Cruz at the intersection of Lansing

and Airway. Id. at 16–17. The CS also showed Detective Koppman text messages

on his phone from Mr. Cruz, discussing the amount of methamphetamine that the CS

was ordering from Mr. Cruz and describing the methamphetamine. Id., Vol. I at 29.

The CS provided three different phone numbers used by Mr. Cruz, including one that

matched the number provided by the CI. Id. Both the CS and Detective Koppman


      1
        The record is not clear as to the gender of the CI, and the pronoun “he” is
used throughout the opinion for ease of reference.
                                           3
believed Mr. Cruz did not keep drugs at his home because, given his probation status,

it was subject to search at any time. Id., Vol. III at 17, 27, 37.

       Detective Koppman asked the CS to call Mr. Cruz and request that Mr. Cruz

bring a few ounces of methamphetamine to the CS. Id. at 17, 22, 26. Detective

Koppman listened as the CS ordered several ounces of methamphetamine from Mr.

Cruz. Id. at 17, 26. Mr. Cruz agreed to provide the methamphetamine after he

returned from work and told the CS he would call him later. Id. at 17.

       Detective Koppman, however, did not plan to conduct a controlled buy. His

objective was to conduct an investigative detention with Mr. Cruz and convince Mr.

Cruz to “flip” on a bigger target. Id. at 29–30. Detective Koppman did not want to

arrest Mr. Cruz if he was willing to flip, and he did not intend to search Mr. Cruz’s

home because he did not believe Mr. Cruz would store drugs there. Id. at 30–31, 47.

       Detective Koppman and other officers went to Mr. Cruz’s residence to conduct

surveillance while waiting for the arranged drug deal between Mr. Cruz and the CS.

Id. at 17–18. Shortly after Detective Koppman arrived at the residence, the CS called

Detective Koppman and told him that Mr. Cruz instructed the CS to meet in front of

the residence in fifteen minutes. Id. at 22, 24. Approximately fifteen minutes later,

Detective Koppman observed Mr. Cruz come out of his residence, open his gate, and

walk out onto the street. Id. at 24. According to Detective Koppman, Mr. Cruz

began looking around as if he were waiting for someone, consistent with behavior

expected of someone about to engage in a narcotics transaction. Id. at 24–25.



                                            4
      At this point, Detective Koppman began to walk up to Mr. Cruz to speak with

him. Id. at 25. But when Mr. Cruz saw the law enforcement officers, he ran back

onto his property. Id. Detective Koppman instructed Mr. Cruz to stop and get on the

ground, but Mr. Cruz kept running. Id. at 47.

      Detective Koppman believed, based on his experience, that Mr. Cruz was

going to destroy evidence. Id. at 26. He explained, “If [narcotics traffickers are]

running away from us, it’s usually because they have evidence that they don’t want to

be found with, and they want to try to get rid of it. Usually flushing it. Flushing it or

throwing it over a fence, throwing it on a roof. I’ve seen it all.” Id.

      After Mr. Cruz ran, officers chased him as he ran, and then followed him as he

entered his home. Id. at 32. They saw Mr. Cruz come out of his bathroom and took

him into custody. Id. at 32–33. Mr. Cruz’s arm was wet up to the elbow, and

officers could see what appeared to be a bag of methamphetamine in the toilet. Id.

The officers detained Mr. Cruz, but they did not search anywhere else in the home at

that time. Id. at 33–34, 36.

      After detaining Mr. Cruz, the officers read him his Miranda warnings and sat

him on the couch. Id. at 30, 34. They offered him the option of consenting to a

search, or having the officers obtain a search warrant. Mr. Cruz cooperated and

provided the officers with consent to search “whatever [the officers] want[ed] to

search.” Id. (quotations omitted).

      Pursuant to this consent, officers searched Mr. Cruz’s residence. Id. The bag

recovered from the toilet contained ten grams of methamphetamine. Id., Vol. I at 30.

                                            5
Officers found two firearms in the living room; one firearm in the bedroom;

approximately fifteen ounces of methamphetamine in the trunk of a vehicle; and

twenty grams of methamphetamine, twenty-three grams of heroin, and a firearm in a

purse in his car. Id. at 30–32. On Mr. Cruz’s person, officers found bags in his

pocket containing sixteen grams of methamphetamine and eight grams of heroin. Id.,

at 30.

         The district court denied Mr. Cruz’s motion to suppress, concluding that the

warrantless entry into his home was supported by probable cause and justified by

exigent circumstances—specifically, the destruction of evidence and the hot pursuit

of a suspect. Id. at 140–41, 144. Mr. Cruz subsequently entered a conditional plea to

Counts 3 and 4 of the superseding indictment. Id. at 145–55. The district court

sentenced Mr. Cruz to a total of 360 months’ imprisonment. Id. at 156–63. Mr. Cruz

has timely appealed and only challenges the district court’s denial of his motion to

suppress.

                                            II

         When reviewing a denial of a defendant’s motion to suppress, we view the

evidence in the light most favorable to the government. United States v. Smith, 531

F.3d 1261, 1265 (10th Cir. 2008). We review the court’s factual findings for clear

error. Id. However, we review de novo the ultimate question of reasonableness

under the Fourth Amendment. Id. The existence of exigent circumstances is a mixed

question of law and fact. United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir.

1998). “Although we accept underlying fact findings unless they are clearly

                                            6
erroneous, the determination of whether those facts satisfy the legal test of exigency

is subject to de novo review.” Id. (quotations omitted).

      Under the Fourth Amendment and applicable case law, warrantless searches

and seizures are presumptively unreasonable. Brigham City v. Stuart, 547 U.S. 398,

403 (2006); United States v. Najar, 451 F.3d 710, 713 (10th Cir. 2010). Warrantless

searches inside the home are particularly suspect, and the Supreme Court has

recognized that even with probable cause, police officers may not enter a dwelling to

make an arrest absent consent or exigent circumstances. Brigham City, 547 U.S. at

403. Under the exclusionary rule, the government may not introduce evidence

obtained in violation of the Fourth Amendment. United States v. Esquivel-Rios, 786

F.3d 1299, 1306 (10th Cir. 2015).

      When analyzing warrantless arrests that begin outside the home and end with

police chasing a suspect into his residence, we ask whether police had probable cause

to make the arrest in the first place and then whether there were exigent

circumstances to justify the officers’ intrusion into the home. See United States v.

Martin, 613 F.3d 1295, 1303 (10th Cir. 2010) (“Having determined that officers had

probable cause to effect an arrest . . . the question remains whether exigent

circumstances existed to justify doing so in [defendant’s home.]”). To uphold Mr.

Cruz’s warrantless arrest, we must determine whether the police officers had

probable cause to arrest him and whether there were exigent circumstances to justify

his arrest within his house. The district court concluded that there was probable

cause for Mr. Cruz’s warrantless arrest, and that two exigent circumstances justified

                                           7
the warrantless entry into his residence: (1) the destruction of evidence and (2) the

hot pursuit of a suspect. ROA, Vol. I at 140.

                                          III

A. Probable Cause

      Mr. Cruz argues that the district court erred in finding that there was probable

cause for his arrest. Aplt. Br. at 12. To determine whether there was probable cause

for Mr. Cruz’s arrest, we look to see “whether at that moment the facts and

circumstances within [the officer’s] knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent [officer] in believing

that the [defendant] had committed or was committing an offense.” United States v.

Snow, 82 F.3d 935, 942 (10th Cir. 1996) (last alteration added) (quoting Beck v.

Ohio, 379 U.S. 89, 91 (1964)). “Probable cause must be evaluated in light of

circumstances as they would have appeared to a prudent, cautious, trained police

officer,” United States v. Morgan, 936 F.2d 1561, 1568 (10th Cir. 1991), and

“[p]robable cause determinations are properly made using a totality-of-the-

circumstances analysis,” id. at 1569. “[P]robable cause requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.”

Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983).

      Moreover, where, as here, probable cause is based on information received

from a confidential informant and a confidential source, “the court makes a probable

cause determination based on the totality of the circumstances, including the

informant’s veracity, reliability, and basis of knowledge.” United States v. Hendrix,

                                           8
664 F.3d 1334, 1338 (10th Cir. 2011). Information received from these sources

which provides “highly specific or personal details from which one could reasonably

infer that the informant had firsthand knowledge about the claimed criminal activity”

is more likely to support probable cause. United States v. Quezada-Enriquez, 567

F.3d 1228, 1233 (10th Cir. 2009). Further, information from any source (whether a

mere tipster, a confidential source, or a confidential informant) is more reliable if it is

confirmed, and thereby corroborated, by officers’ independent observations.

Hendrix, 554 F.3d at 1338.

       Here, considering all that the officers knew when they approached Mr. Cruz

outside his home, they had probable cause to arrest him at that time. The officers

knew that Mr. Cruz had trafficked drugs in the past, based on his own admission to

Detective Koppman in 2016. See United States v. Artez, 389 F.3d 1106, 1114 (10th

Cir. 2004) (“[C]riminal history, combined with other factors, can support a finding of

reasonable suspicion or probable cause.”). In addition, Detective Koppman received

highly specific information from both a CI and CS that Mr. Cruz was presently

trafficking narcotics. The CI provided details supporting his claim of firsthand

knowledge of Mr. Cruz’s drug dealing, including a description of the location of Mr.

Cruz’s home; providing a phone number for Mr. Cruz; and identifying him in a

photograph. See United States v. Tuter, 240 F.3d 1292, 1298 (10th Cir. 2001)

(observing that “highly specific or personal details” can support the reasonable

inference that a source has firsthand knowledge). Moreover, the information from

the CI was corroborated by the CS. The CS identified a photograph of Mr. Cruz;

                                            9
provided one of Mr. Cruz’s phone numbers that matched that provided by the CI; and

showed Detective Koppman text message exchanges with Mr. Cruz describing the

methamphetamine and the amount the CS was ordering from Mr. Cruz. See Artez,

389 F.3d at 1114 (noting that information received “from a second informant can also

help corroborate information from a confidential informant”). Officers also

confirmed the information from both the CI and CS through independent observation

by asking the CS to set up a drug buy with Mr. Cruz while officers listened. The CS

called Detective Koppman and told him that Mr. Cruz had asked to meet the CS at

the intersection in front of Mr. Cruz’s house in fifteen minutes. At the agreed-upon

time, Mr. Cruz walked out onto the street and began looking around as if waiting to

meet someone, behavior Detective Koppman believed was consistent with a drug

transaction. It is also relevant that Mr. Cruz fled upon seeing the officers. See

United States v. Polly, 630 F.3d 991, 999 (10th Cir. 2011) (noting flight from police

can be considered, among other factors, in probable cause analysis). In sum,

considering the officers’ knowledge of Mr. Cruz’s criminal history; detailed,

corroborated information from a CI and CS that Mr. Cruz was selling drugs; and Mr.

Cruz’s behavior at the prearranged drug buy, Detective Koppman had probable cause

to arrest Mr. Cruz when he approached Mr. Cruz outside of his home.

      Nevertheless, Mr. Cruz argues that there was no probable cause for his arrest

unless and until a controlled buy was completed, see Aplt. Br. at 12, and that the

information obtained from the CI and CS was not reliable, see id. at 14. These

arguments are unpersuasive. As noted, “probable cause requires only a probability or

                                          10
substantial chance of criminal activity, not an actual showing of such activity.”

Gates, 462 U.S. at 243 n.13 (emphasis added). Mr. Cruz relies on Aquino to support

his argument, but that case does not stand for the proposition that probable cause

arises only if there is a completed controlled buy. United States v. Aquino, 836 F.2d

1268 (10th Cir. 1988). In Aquino, the police did not have evidence linking the

defendant to drug trafficking until a controlled buy was completed. Id. at 1272–73.

Here, however, there was significant evidence linking Mr. Cruz to drug trafficking

even in the absence of a completed controlled buy, including detailed, corroborated

information from a CI and CS; text messages between the CS and Mr. Cruz setting up

drug transactions; a phone call between the CS and Mr. Cruz arranging for the sale of

methamphetamine; and Mr. Cruz appearing for the transaction at the time and place

arranged by the CS. Aquino only underscores the fact that probable cause

determinations are made using a totality of the circumstances approach. Under the

totality of the circumstances presented here, probable cause is more than supported.

      Mr. Cruz’s arguments regarding the reliability of the CI and CS are also

without merit. Mr. Cruz states that the CI only provided “vague references to prior

drug deals.” Aplt. Br. at 15. But the information provided by the CI was quite

specific, including the address of Mr. Cruz’s residence and his phone number. And

contrary to Mr. Cruz’s assertion, the CI’s information was not stale. While it was

provided one month before Mr. Cruz’s arrest, the information provided suggested

that Mr. Cruz’s drug trafficking was ongoing. See ROA, Vol. III at 19 (Detective

Koppman testifying that the CS identified Mr. Cruz as “the subject that sells me

                                          11
narcotics”) (emphasis added, quotations omitted). “When the circumstances suggest

ongoing criminal activity, the passage of time recedes in importance.” See United

States v. Cantu, 405 F.3d 1173, 1177 (10th Cir. 2005).

      Mr. Cruz also points out that the CS had to ask Mr. Cruz for directions to his

home and that Mr. Cruz came outside before the CS had parked as instructed. See

Aplt. Br. at 16. While true, these arguments do not wholly undercut the CS’s

veracity. The officers corroborated what the CS told them as they watched Mr. Cruz

leave his house at the appointed time, head to the street, and look for someone. As

the government points out, “[w]hen there is sufficient independent corroboration of

an informant’s information, there is no need to establish the veracity of the

informant.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000).

Finally, it is irrelevant that the specific amount of methamphetamine in the controlled

buy was not established before the arrest. See Aplt. Br. at 16. Again, probable cause

requires only a probability or substantial chance of criminal activity, not an actual

showing of such activity. 2 Here, there was abundant evidence to support probable

cause for Mr. Cruz’s arrest.


      2
         Mr. Cruz also contends that Detective Koppman admitted to a lack of
probable cause for his arrest. See Aplt. Br. at 14. The record, however, only shows
that Detective Koppman stated that prior to surveilling Mr. Cruz at his residence,
officers lacked probable cause to search his home. See ROA, Vol. III at 37–38.
Whether there was probable cause to arrest Mr. Cruz and whether there was probable
cause to search his home for drugs are two separate inquiries, and here, officers did
not search Mr. Cruz’s home until they obtained his consent to do so. See United
States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998) (“Probable cause to search a
person’s residence does not arise based solely upon probable cause that the person is
guilty of a crime.”). Regardless, in addition to having probable cause to arrest Mr.
                                           12
B. Exigent Circumstances

      Having concluded there was probable cause to support Mr. Cruz’s arrest, we

must next ask whether there were exigent circumstances which would justify the

officers’ entry into Mr. Cruz’s dwelling without a warrant. The district court ruled

that this entry was supported by two exigent circumstances—destruction of evidence

and hot pursuit.

   1. Destruction of Evidence

      We employ a four-part test to determine whether the likelihood of destruction

of evidence justified the officers’ warrantless entry. The test requires that an

officer’s entry be: “(1) pursuant to clear evidence of probable cause, (2) available

only for serious crimes and in circumstances where the destruction of the evidence is

likely, (3) limited in scope to the minimum intrusion necessary to prevent the

destruction of evidence, and (4) supported by clearly defined indicators of exigency

that are not subject to police manipulation or abuse.” Aquino, 836 F.2d at 1272. The

district court found that each of the four prongs were met. ROA, Vol. I at 140. Mr.

Cruz does not dispute that drug trafficking is a serious crime or that the officers’

entry was limited in scope to the minimum intrusion necessary to prevent the

destruction of evidence. See Aplt. Br. at 12–20.

      i. There was clear evidence of probable cause.




Cruz in his home, the officers had probable cause to believe that Mr. Cruz had
transported drugs into his home after witnessing his flight.
                                           13
      As discussed above, officers had ample evidence of probable cause to arrest

Mr. Cruz for drug trafficking when he was still outside of his home. When Mr. Cruz

ran indoors from the location of a planned drug sale, police officers had reason to

believe that he possessed drugs and was fleeing with them.

      ii. Destruction of evidence was likely.

      Because Mr. Cruz’s arrest was supported by clear evidence of probable cause,

we now turn to the second prong of the Aquino test, which has two parts: (1) the

destruction of evidence must be likely and (2) the crime must be serious. Mr. Cruz

only disputes the former.

      In determining whether the destruction of evidence was likely, “we are guided

by the realities of the situation presented by the record” and “evaluate the

circumstances as they would have appeared to prudent, cautious, and trained

officers.” United States v. Wicks, 995 F.2d 964, 970 (10th Cir. 1993) (citing United

States v. Cuaron, 700 F.2d 582, 586 (10th Cir. 1983)); see also United States v.

Creighton, 639 F.3d 1281, 1288 (10th Cir. 2011).

      Mr. Cruz contends that “there was no indication of loss or destruction of

evidence when [Mr.] Cruz exited his home or stood outside.” Aplt. Br. at 20. More

specifically, he argues that officers did not observe a drug buy before following Mr.

Cruz into his home and did not see any other signs consistent with the destruction of

evidence. Id.

      Under the circumstances presented, however, Detective Koppman’s belief that

Mr. Cruz would try to destroy evidence was justified. While a drug buy was not

                                           14
completed, officers reasonably believed that Mr. Cruz went out to the street to

engage in a prearranged drug transaction; he appeared at the agreed-upon time and

place and appeared to be looking for someone. Therefore, although the officers did

not see the controlled substance, it was logical for the officers to believe that Mr.

Cruz had the controlled substance on his person in anticipation of the drug deal. And

it was reasonable for officers to believe that Mr. Cruz was going to destroy that

evidence—a small quantity of drugs—when he fled into his home upon seeing the

officers, where there was ample opportunity for the destruction. See Aquino, 836

F.2d at 1273 (holding that the destruction of evidence was likely even though the

officers did not see or hear the destruction because there was “evidence that the

source of the cocaine was growing suspicious [of police activity]”). As Detective

Koppman explained at the suppression hearing, he believed that Mr. Cruz was going

to destroy evidence when he fled because “[t]hat’s what narcotics traffickers do.”

ROA, Vol. III at 26. Detective Koppman relied on his training and experience,

testifying that “[i]f [narcotics traffickers are] running away from us, it’s usually

because they have evidence that they don’t want to be found with, and they want to

try to get rid of it. Usually flushing it. Flushing it or throwing it over a fence,

throwing it on a roof. I’ve seen it all.” Id. The foregoing reasonably created an

exigency under the totality of circumstances, despite the fact that the officers did not

hear or see the evidence being destroyed. See Aquino, 836 F.2d at 1273.

      iii. Officers’ entry was limited in scope to the minimum intrusion necessary to
           prevent the destruction of evidence.


                                            15
      Mr. Cruz does not dispute that the officers’ entry was limited in scope to the

minimum intrusion necessary to prevent destruction of the evidence. He has

therefore waived this argument. See United States v. Beckstead, 500 F.3d 1154,

1162–63 (10th Cir. 2007) (finding that defendant waived an argument by failing to

include the argument in opening brief).

      Regardless, the officers’ entry here was limited in scope to the minimum

intrusion necessary to prevent the destruction of evidence. Officers went into the

bathroom of the residence—where Mr. Cruz was located—and they did not search

anywhere else in the house until they obtained Mr. Cruz’s consent to do so. See

ROA, Vol. III at 32–36.

      iv. Officers’ warrantless entry was supported by clearly defined indicators of
          exigency not subject to police manipulation or abuse.

      As for the fourth prong, police manipulation is present only when officers

“engag[e] or threaten[ ] to engage in conduct that violates the Fourth Amendment.”

Hendrix, 664 F.3d at 1339–40 (quoting Kentucky v. King, 563 U.S. 452, 462 (2011))

(alterations added).

      Although acknowledging the Supreme Court’s holding in King, Mr. Cruz relies

on pre-King cases to argue that the police created the exigency here by setting up a

controlled buy but failing to obtain a warrant. See Aplt. Br. at 22–23. King

forecloses Mr. Cruz’s argument. King answered the following question: “Under what

circumstances do police impermissibly create an exigency?” 563 U.S. at 471. In

doing so, it rejected the rule that police are prohibited from relying on an exigency


                                          16
where “it was reasonably foreseeable that the investigative tactics employed by the

police would create the exigent circumstances.” Id. at 464–65 (internal quotation

marks omitted) (reasoning that it would create difficulties for law enforcement

officers who must make quick decisions in the field). Rather, King held that the

police only impermissibly create an exigency when they engage or threaten to engage

in conduct that violates the Fourth Amendment. Id. at 462.

      Here, the officers did not create the exigency by engaging or threatening to

engage in conduct that violates the Fourth Amendment. As discussed above, the

officers had probable cause for Mr. Cruz’s arrest before he entered his home, and Mr.

Cruz created the exigency of their having to enter his home when he fled from the

officers. See id. at 470 (explaining that individuals who “elect to attempt to destroy

evidence have only themselves to blame for the warrantless exigent circumstances

search that may ensue”). Moreover, we have concluded that similar investigative

tactics do not violate the Fourth Amendment. For instance, in Hendrix, we concluded

that a warrantless entry into a defendant’s motel room was justified where officers

went “directly to the motel room at night without first seeking a warrant or further

corroboration of the informant’s tip, [gave] a false name, and continually demand[ed]

entry after initially being refused.” 664 F.3d at 1339. As in Hendrix, Mr. Cruz has

not argued that the officers “threatened to enter the [residence] without permission

unless admitted.” Id. at 1340. For these reasons, the fourth prong is satisfied. The

officers’ warrantless entry was therefore justified under the destruction of evidence

exception to the warrant requirement.

                                          17
   2. Hot Pursuit

       The government argues—and the district court found—that the hot pursuit

exception to the warrant requirement also justified the officers’ entry into Mr. Cruz’s

home. Aple. Br. at 27; ROA, Vol. I at 140–42. On appeal, Mr. Cruz contends that

this exception is inapplicable because the “police were not in the process of

conducting a legitimate warrantless arrest [or] in the process of making an arrest at

all.” Aplt. Br. at 21.

       One category of exigent circumstances is “an ongoing hot pursuit of a fleeing

suspect.” United States v. Martin, 613 F.3d 1295, 1299 (10th Cir. 2010). Under this

doctrine, “police who attempt to arrest [a] felon outside [her] home may pursue her if

she takes refuge inside.” Aquino, 836 F.2d at 1271 (citing United States v. Santana,

427 U.S. 38, 42–43 (1976)). In other words, “a suspect may not defeat an arrest

which has been set in motion in a public place.” Santana, 427 U.S. at 43. “[H]ot

pursuit means some sort of a chase, but it need not be an extended hue and cry in and

about (the) public streets.” Id. at 42–43 (internal quotation marks omitted). Hot

pursuit occurs when an officer is in “immediate or continuous pursuit” of a suspect

from the scene of a crime. Welsh v. Wisconsin, 466 U.S. 740, 753 (1984).

       As discussed above, Mr. Cruz’s contention that there was no probable cause

for his arrest is without merit. At issue, then, is Mr. Cruz’s contention that the

officers were not in the process of making an arrest. See Manzanares v. Higdon, 575

F.3d 1135, 1147 (10th Cir. 2009) (noting that both probable cause and either a

warrant or exigent circumstances are required “to seize an individual in his home”).

                                           18
       The record demonstrates that the officers were in “immediately or continuous

pursuit” of Mr. Cruz from a public street into his home after he fled, in an effort to

apprehend him. Welsh, 466 U.S. at 753. Detective Koppman testified that Mr. Cruz

walked “out to the street,” ROA, Vol. III at 24, then ran from the officers into his

home, id. at 47. “When he ran,” the officers tried to apprehend him, “[giving] him

specific instructions to stop running, to get on the ground.” Id.; see United States v.

Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996) (“An order to freeze

communicates that suspects are not free to leave and is sufficient to effect a

seizure.”). Mr. Cruz did not stop, however. Instead, Detective Koppman testified

that Mr. Cruz went “in the door [to his residence],” ROA, Vol. III at 32, and that the

officers chased him immediately, see id. (“[W]e went in the door right after him.”).

See also id. at 36 (Detective Koppman stating that the chase occurred in a “matter of

seconds”). Detective Koppman testified that as soon as the officers “[saw] him

coming out of the bathroom . . . he was ordered to the ground and taken in custody.”

Id. at 32.

       Mr. Cruz is correct that the officers initially did not want to arrest him, but the

record demonstrates that their plans changed after he ran. At that point, officers

attempted to seize him by asking him to stop and get on the ground, then arrested him

immediately after chasing him into his home. Thus, Mr. Cruz’s argument that “an

arrest was not already in motion” when the officers went into the residence is not

supported by the record. Aplt. Br. at 22. Accordingly, the hot pursuit exception, in

addition to the destruction of evidence exception, justified the officers’ warrantless

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entry into Mr. Cruz’s home. There was thus no taint to Mr. Cruz’s consent to

officers’ search of his home, and the evidence should not be suppressed.

                                         IV

      For the foregoing reasons, we AFFIRM the district court’s denial of Mr.

Cruz’s motion to suppress.




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