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United States v. Zarate

United States District Court, N.D. Iowa, Eastern Division

July 3, 2019



          Mark A. Roberts, United States Magistrate Judge.



         I. INTRODUCTION ........................................................................... 4

         II. FINDINGS OF FACT ...................................................................... 4

         III. ANALYSIS ................................................................................... 9

         A. The Parties' Arguments........................................................... 9

         B. The Warrantless Entry of the Hotel Room and Seizure of Defendant ………………………………………………………………………11

         1. The Search ................................................................. 12

         2. The Seizure ................................................................. 13

         a. Public Place ........................................................ 15

         b. Probable Cause .................................................... 16

         c. Exceptions to the Warrant Requirement ...................... 16

         i. Exigent Circumstances .................................. 17

         A. Officer Safety .................................... 18

         B. Destruction of Evidence ......................... 21

         C. Protective Sweep ................................. 22

         ii. Conclusion ................................................. 24

         d. The Seizure of Defendant was Unconstitutional ............ 24

         C. Suppression of Evidence ......................................................... 25

         1. Defendant's Statements .................................................. 26

         a. Defendant did not Waive his Miranda rights ................ 26

         b. Statements Made in the Hallway ............................... 31

         c. Statements Made at the Waterloo Police Station ............ 35

         2. Ms. Patterson's Statements .............................................. 41

         3. The Search of Defendant's Person .................................... 46

         D. The Search Warrants for the Hotel Room and Defendant's Urine ...... 46

         1. Warrant for Hotel Room ................................................. 47

         2. Warrant for Defendant's Urine ......................................... 54

         3. Leon Good Faith Exception ............................................. 58

         4. Conclusion on Warrants as Written ................................... 60

         5. Independent Source Doctrine ........................................... 61

         a. Warrant for Hotel Room ........................................ 62

         b. Warrant for Defendant's Urine ................................ 65

         IV. CONCLUSION ......................................................................... 67


         The matter now before me is Defendant's Motion to Suppress Evidence. (Doc. 47.) On December 19, 2018, the Grand Jury charged Defendant with Possession of a Firearm by a Drug User, in violation of 18 U.S.C. Sections 922(g)(3) and 924(a)(2), and Possession of a National Firearms Act Device Not Registered to Possessor, in violation of 26 U.S.C. Sections 5841, 5861(d), and 5871. (Doc. 3.) The charges arose from statements Defendant made during custodial interviews on October 11, 2018 and searches of a hotel room, vehicle, and urine specimen conducted on October 11, 2018 pursuant to search warrants issued by the Honorable David F. Staudt, Iowa District Court Judge.

         The Honorable Charles J. Williams, United States District Court Judge, referred this motion to me for a Report and Recommendation. On March 22, 2019, I held an evidentiary hearing on Defendant's motion. The Government called as witnesses Waterloo, Iowa Police Officer Jordan Ehlers and Waterloo, Iowa Police Sergeant Robert Duncan. Defendant called Waterloo, Iowa Police Department Investigator Diana Del Valle.

         For the following reasons, I respectfully recommend that the Court GRANT in part and DENY in part Defendant's Motion to Suppress.


         On October 10, 2018, Waterloo Police Department Investigator Diana Del Valle received a tip from a confidential informant (“CI”) that Defendant possessed a sawed-off shotgun; various bladed weapons; and methamphetamine, likely a personal-use amount. (Gov. Ex. 1 at 1; Diana Del Valle Hr'g Test.[1]; Jordan Ehlers Hr'g Test.) The CI also informed Investigator Del Valle that Defendant and a woman were staying at the Isle of Capri Casino Hotel in Waterloo, Iowa. (Gov. Ex. 1 at 1, 4.) Investigator Del Valle personally observed Defendant in the passenger seat of a maroon Hyundai Santa Fe on October 10, 2018, at around 5:00 p.m. (Id. at 1.) After losing sight of the vehicle, Investigator Del Valle telephoned Officer Jordan Ehlers later that evening to inform him of the tip. Officer Ehlers then informed the other officers working the same shift. (Id. at 1; Del Valle Hr'g Test.) Investigator Del Valle reported that the CI said Defendant was “heavily under the influence of methamphetamine and acting crazy.” (Ehlers Hr'g Test.)

         Sergeant Robert Duncan located a maroon Hyundai Santa Fe with license plates matching those of the vehicle registered to Sierra Patterson in the parking lot of the Isle of Capri Casino Hotel around 12:47 a.m. on October 11, 2018. (Gov. Ex. 1 at 1, 4.) Sergeant Duncan peered through both the driver's side and passenger's side windows and saw what he believed to be the barrel of a sawed-off shotgun between the driver's seat and driver's door. (Id. at 4; Del Valle Hr'g Test.) Sergeant Duncan testified that based on his training and experience, the gun barrel appeared too short to be legal under both Iowa and federal law. (Robert Duncan Hr'g Test.) Sergeant Duncan notified Officer Ehlers of the location of the vehicle and that there appeared to be a weapon inside. (Gov. Ex. 1 at 4.)

         When Officer Ehlers and Sergeant Steven Bose arrived at the vehicle, Officer Ehlers also looked into the vehicle and noticed what he believed to be a sawed-off shotgun on the floor between the driver's seat and front driver's side door. (Id. at 1; Ehlers Hr'g Test.) Officer Ehlers could tell by looking at the shotgun that it was illegal under state and federal law. (Ehlers Hr'g Test.)

         After other officers arrived to secure the vehicle, Officer Ehlers, Sergeant Duncan, and Sergeant Bose entered the casino hotel, spoke with staff, and learned that Defendant was staying in room 808. (Gov. Ex. 1 at 1, 4.) Officer Ehlers called room 808, pretending to be a hotel employee, and discovered Defendant and a woman were in the room. (Ehlers Hr'g Test.) The officers directed a hotel staff member to knock on the door to room 808 while the officers stood out of view of the door's peephole to maintain their ruse. (Id.) The hotel staff made three successive attempts to induce Defendant to open the door, knocking while announcing, “Hotel front desk.” (Gov. Ex. 8 at:40-2:18.) As they were waiting for someone to answer, Officer Ehlers could hear people moving around inside the room, but heard no noises that made him believe that evidence was being destroyed. (Ehlers. Hr'g Test.) After the third attempt, Defendant opened the door. (Gov. Ex. 8 at 2:32.)

         Sergeant Duncan entered the room with his handgun drawn and told Defendant and the female occupant, Sierra Patterson, to put their hands up.[2] (Gov. Ex. 11 at 2:28-2:32; Gov. Ex. 1 at 4.) As Defendant stood in the room near the doorway with his hands raised, Officer Ehlers grabbed Defendant's right arm and pulled Defendant out of the room and onto the floor of the hallway. (Gov. Ex. 8 at 2:33-2:40; Gov. Ex. 11 at 2:30.) Officer Ehlers handcuffed Defendant, told him he was being detained, and patted him down for weapons, but found no weapon or contraband. (Gov. Ex. 8 at 2:40-3:32; Gov. Ex. 1 at 1.) From memory, Officer Ehlers recited Defendant his Miranda rights as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to talk to an attorney and have one present with you when you're being questioned. If you cannot afford to hire an attorney, one will be appointed to represent you, if you wish. Do you understand these rights I have read to you?

(Gov. Ex. 8 at 3:44-3:55.) Defendant made no audible response and Defendant's face is not visible on the body camera video. (Id. at 3:56.) Officer Ehlers wrote in his police report that Defendant “stated he understood.” (Gov. Ex. 1 at 1.) Officer Ehlers testified, however, that Defendant had “nodded his head.” (Ehlers Hr'g Test.) On the video, after reciting the Miranda warning, there is a pause before Officer Ehlers began questioning Defendant. Officer Ehlers then told Defendant that they knew “illegal activities were going on.” (Gov. Ex. 8 at 4:54.) Officer Ehlers asked if officers could search the hotel room. Defendant denied permission for the search. (Id. at 6:19; Gov. Ex. 1 at 1.) When Officer Ehlers mentioned obtaining a search warrant, Defendant admitted that a .380 handgun he had purchased was in the hotel room. (Gov. Ex. 8 at 7:06; Gov. Ex. 1 at 1.) At that point, Officer Ehlers arranged to have Defendant transported to the police station and performed another pat search of Defendant. During this search, Officer Ehlers found a glass pipe in Defendant's pants pocket. (Gov. Ex. 1 at 1; Ehlers Hr'g Test.)

         Meanwhile, Sergeant Duncan spoke with Ms. Patterson inside the hotel room after placing her in handcuffs and Mirandizing her. (Gov. Ex. 1 at 4; Gov. Ex. 11.) In response to his questions, Ms. Patterson informed officers there was a “.38” handgun and marijuana in the room, as well as a .410 shotgun in her vehicle. (Gov. Ex. 1 at 4.) Officer Ehlers asked Ms. Patterson about Defendant's drug use. He said he was asking because Defendant “had a meth pipe on him and he seems like he's a little shook up.” (Gov. Ex. 8 at 15:15, 16:34.) During the time Sergeant Duncan was speaking to Ms. Patterson, Sergeant Bose was also in the hotel room shining his flashlight around the room.

         At the police station, Defendant was questioned further by Officer Lucas Scarbrough. (Gov. Ex. 1 at 6.) Prior to the questioning, Officer Ehlers told Officer Scarbrough that Defendant had been Mirandized. (Id.) Defendant stated he recently bought the .380 handgun from a friend for $150 and received the .410 shotgun and ammunition from a friend for free. (Id.; Gov. Ex. 10 at 1:44, 4:24.) Defendant also disclosed that he smokes marijuana and that there was marijuana in the hotel room. (Gov. Ex. 1 at 6.) Sometime during the interview, Defendant asked for an attorney and Officer Scarbrough ended the interview. (Id.)

         At the police station, Officer Ehlers applied for three separate search warrants. (Id. at 2.) The first was for the Hyundai Santa Fe (Gov. Ex. 2), the second for room 808 at the Isle of Capri Casino Hotel (Gov. Ex. 3), and the third for a sample of Defendant's urine (Gov. Ex. 4). Officer Ehlers spoke with Investigator Del Valle on the telephone while completing the applications to gather the required information on the CI. (Ehlers Hr'g Test.) The warrant applications were accompanied by an “Informant's Attachment” and an “Addendum.” (Gov. Ex. 2 at 4, 6.) On the Informant's Attachment, Officer Ehlers indicated the “above officer, ” presumably Investigator Del Valle, had known the informant for one month and the informant has supplied information more than five times in the past, which led to one arrest. (Id. at 4.) Additionally, the informant had otherwise demonstrated truthfulness and the information supplied by the informant in this investigation had been corroborated. (Id.) The Addendum provided the information given by the CI, investigator Del Valle's observations, the actions of the officers at the hotel, and statements made by Defendant and Ms. Patterson. (Id. at 6.) The warrants were signed by Judge Staudt. (Gov. Exs. 2, 3, 4; Ehlers Hr'g Test.)

         Once the three search warrants were secured, officers executed them and seized an Ithaca .410 shotgun; ammunition; an axe; a machete; a Jimenez Arms .380 handgun; drug paraphernalia, including glass pipes and a digital scale; and suspected methamphetamine and suspected marijuana. (Gov. Ex. 2 at 8; Gov. Ex. 3 at 7.) Defendant's urine tested positive for amphetamines and marijuana. (Gov. Ex. 7.) The length of the .410 shotgun barrel was 16.125 inches. (Ehlers Hr'g Test.) Defendant has never been issued a permit to carry weapons. (Gov. Ex. 1 at 2.) Additional facts will be discussed in the following analysis when relevant.

         III. ANALYSIS

         A. The Parties' Arguments

         Defendant alleges multiple and, to some extent, alternative bases to exclude the statements and physical evidence that were produced by the events described above. Defendant first complains of law enforcement conduct immediately after he opened the door and was removed from his room to the hallway floor and handcuffed.[3] Defendant asserts this was a seizure that required a warrant and that no exceptions to the warrant requirement apply. Defendant further asserts that fruits of the initial seizure and search of his person must be suppressed. The fruits, he argues, include his statements, the statements of Ms. Patterson, and the products of the next two warrants (i.e., the items found in the hotel room and his urine). (Doc. 47-1 at 5.)

         Defendant argues in the alternative that there exists an independent basis to exclude each of the challenged items of evidence. Defendant contends that Officer Ehlers's recitation of the Miranda warning was inadequate. Therefore, his statements at the hotel and the police station must be suppressed along with the fruits of those statements (i.e., the search warrant for his urine). Moreover, Defendant contends that Ms. Patterson's statements are inadmissible against him because they were a product of a violation of his own Fourth Amendment protection to be free of a warrantless search of the hotel room.

         Defendant also argues that the search warrants for the hotel room and for the urine sample were not supported by legally gathered evidence that amounted to probable cause and, therefore, all fruits from those searches must be suppressed. Defendant refers to the first entry into the hotel room by law enforcement without permission as a “search.” (Doc. 62 at 5.) Defendant then asserts that law enforcement used information illegally obtained from this initial search and the seizure of the occupants as part of the applications for the subsequent search warrants. He requests those portions of the applications be excised because they contain fruits of the illegal search and seizure of the room and its occupants. Without the excised poisonous fruit, the warrants lack probable cause because, among other things, the informant's reliability was not substantiated. Finally, Defendant contends the “good faith” exception under United States v. Leon, 468 U.S. 897, 922 (1984) does not apply. As such, the evidence must be excluded.

         The Government responds that the officers had probable cause to make a warrantless arrest because an offense had been or was being committed. The Government concedes that officers “may not effect a warrantless arrest of a suspect in his hotel room unless the arrest and entry are supported by probable cause and exigent circumstances, ” including the prevention of destruction of evidence. (Doc. 55 at 5) (quoting United States v. Granados, 587 F.Supp. 2d. 1112, 1118-19 (D.S.D. 2008)). At the hearing, the Government stated that while exigent circumstances might have existed because of the presence of a small amount of drugs in room 808, it was not “pinning its argument” on the exigent circumstances presented by the possible destruction of evidence. The Government contends instead, that entry without a warrant was justified based on officer safety concerns, the information about other weapons, as well as the need to do a protective sweep of the entire hotel room.

         The Government avers that the officers lawfully knocked on the hotel door and, when Defendant opened the door, took him into custody in the hallway without a search. No arrest warrant was necessary, the Government argues, because the Government had probable cause to believe Defendant was in possession of a sawed-off shotgun. (Doc. 55 at 5-6.) The Government contends no search occurred until after officers returned with a warrant. The Government further contends that Officer Ehlers's recitation of the Miranda warnings reasonably conveyed Defendant's rights, which Defendant then waived. If the warnings were insufficient, the Government argues, the Court should only suppress Defendant's statements, not the physical evidence.

         Next, the Government argues the search warrants for the hotel room and for the urine sample were supported by probable cause. The Court should not excise any information because “there was no unlawful search of the room because no search took place.” (Id. at 9, 14.)

         The Government also avers that the independent source doctrine permits admission of the evidence. That is, even if some material is excised from the warrants, the information provided by the CI that was corroborated by officers and Patterson's statements in the affidavit still establish probable cause for both warrants. (Gov. Ex. 55 at 10-12) (citing United States v. Swope, 542 F.3d 609, 613-14 (8th Cir. 2008)). Finally, the Government argues that even if the warrants were invalid, the Leon good faith exception to the exclusionary rule permits the admission of the evidence.

         B. The Warrantless Entry of the Hotel Room and Seizure of Defendant

         The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” “[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980) (quotation omitted). “[A]n entry to arrest and an entry to search for and to seize property implicate the same interest in preserving the privacy and sanctity of the home, and justify the same level of constitutional protection.” Mahlberg v. Mentzer, 968 F.2d 772, 775 (8th Cir. 1992) (quoting Payton, 445 U.S. at 588). Therefore, “searches and seizures inside a home without a warrant are presumptively unreasonable.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004)). This protection begins at the entrance to the dwelling. United States v. Vance, 53 F.3d 220, 221-22 (8th Cir. 1995) (quoting Payton, 445 U.S. at 590) (“[T]he Fourth Amendment has drawn a firm line at the entrance to the house.”). Although warrantless searches and seizures inside a home are presumptively unreasonable, there are exceptions to the warrant requirement “because the ultimate touchstone of the Fourth Amendment is reasonableness.” Brigham City, 547 U.S. at 403 (quotations omitted).

         An individual invoking Fourth Amendment protection must have a justifiable, reasonable, or legitimate expectation of privacy. Smith v. Maryland, 442 U.S. 735, 740 (1979) (quotations omitted). To attain this expectation of privacy, the expectation must be subjectively held and objectively reasonable, meaning it is one that society is prepared to recognize. Id. Society recognizes a reasonable expectation of privacy of individuals in their hotel rooms. United States v. Williams, 521 F.3d 902, 906 (8th Cir. 2008). Thus, as a registered occupant of the hotel room, Defendant was protected by the Fourth Amendment from unreasonable searches and seizures. United States v. Peoples, 854 F.3d 993, 996 (8th Cir. 2017) (“[T]he Fourth Amendment's protection against unreasonable searches and seizures extends to a person's privacy in temporary dwelling places such as hotel or motel rooms.”) (quotation omitted); United States v. Conner, 948 F.Supp. 821, 844-85 (N.D. Iowa 1996), aff'd, 127 F.3d 663 (8th Cir. 1997).

         1. The Search

         The simple, baseline definition of a “search” under the Fourth Amendment is when “the Government obtains information by physically intruding on persons, houses, papers, or effects.” Florida v. Jardines, 569 U.S. 1, 5 (2013) (quotation omitted). A search also occurs when there is official intrusion into something “an individual ‘seeks to preserve [] as private,' and his expectation of privacy is ‘one that society is prepared to recognize as reasonable.'” Carpenter v. United States, ___U.S.___, 138 S.Ct. 2206, 2213 (2018) (quoting Smith, 442 U.S. at 740). When physical intrusion on a constitutionally protected area is present in a case, it is unnecessary for the Court to “inquire about the target's expectation of privacy.” Grady v. North Carolina, ___ U.S.___, 135 S.Ct. 1368, 1370 (2015) (per curiam).

         I conclude that the entry by law enforcement into the hotel room when Officer Ehlers grabbed the Defendant and pulled him into the hallway and when the other officers entered the room constituted an intrusion on a constitutionally protected area. Unless this search was justified based upon the considerations below, it was presumptively unreasonable and the fruits of the search may be subject to exclusion.

         2. The Seizure

         “[M]ere police questioning does not constitute a seizure.” United States v. Barry, 394 F.3d 1070, 1074 (8th Cir. 2005) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)). Rather, if a citizen is free to “ignore the police presence and go about his business, ” the encounter is not a seizure. Id. (quoting Bostick, 501 U.S. at 437) (internal citation omitted). A seizure only occurs when, “in the totality of the circumstances surrounding the encounter, a reasonable person would believe that [he] is not free to leave.” United States v. Pena-Saiz, 161 F.3d 1175, 1177 (8th Cir. 1998) (citing United States v. Thompkins, 998 F.2d 629 (8th Cir. 1993)). A seizure under the Fourth Amendment requires either physical force or submission to the assertion of authority. Atkinson v. City of Mt. View, 709 F.3d 1201, 1208 (8th Cir. 2013) (quoting California v. Hodari D., 499 U.S. 621, 627 (1991)). The physical force must be both willful and restrain the person's freedom of movement. Id. (quotations omitted). “[S]eizures inside a home without a warrant are presumptively unreasonable.” Payton, 445 U.S. at 586. However, “the warrantless arrest of an individual in a public place upon probable cause does not violate the Fourth Amendment.” United States v. Council, 860 F.3d 604, 608 (8th Cir. 2017) (quoting United States v. Santana, 427 U.S. 38, 42 (1979)) (internal brackets omitted).

         I find that Defendant was “seized” under the Fourth Amendment when he was grabbed from inside of his hotel room and placed on the floor in the hallway. Despite Officer Ehlers's statements that Defendant was simply being “detained, ” Defendant was immediately handcuffed and read his Miranda rights. Miranda warnings are only necessary when defendants are questioned in custodial situations. United States v. Layne, 973 F.2d 1417, 1421 (8th Cir. 1992) (“A Miranda warning requirement is not applicable to every situation where law enforcement asks questions, rather it is the compulsive or coercive aspect of custodial situations that trigger Miranda.”). Officer Ehlers's conduct was consistent with a seizure rather than a mere detention to sort out the facts or so that officers could conduct a protective sweep. Contra United States v. Hubbard, No. CRIM 09-272 JMR/JJK, 2009 WL 5103226, at *2 (D. Minn. Dec. 17, 2009) (officers temporarily detained residents of home in living room while they conducted protective sweep of rest of house and told residents they were free to leave after sweep was completed).

         Under these facts, Defendant was required to submit to Officer Ehlers's assertion of authority. Atkinson, 709 F.3d at 1208. No. reasonable person in Defendant's position would have believed he was free to leave. Pena-Saiz, 161 F.3d at 1177. Officer Ehlers may have used the word “detained” to liken the encounter to a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). Although handcuffs may be used during a Terry stop as a reasonable precaution to protect officer safety, United States v. Martinez, 462 F.3d 903, 907 (8th Cir. 2006), the facts here do not support the conclusion that this was “mere questioning” allowed during a Terry stop. The totality of the circumstances demonstrate that no reasonable person would have believed he was free to leave. Nothing about the interaction would show Defendant could “ignore the police presence and go about [his] business.” Barry, 394 F.3d at 1074.

         Because Defendant was seized, the remaining questions to be decided are whether Defendant was in a “public place” at the time of the seizure and whether the arrest was based upon probable cause.

         a. Public Place

         An individual is in a “public place” when the individual is “not in an area where [he or she has] any expectation of privacy.” Council, 860 F.3d at 610 (quoting Santana, 427 U.S. at 42-43). “The doorway of an individual's . . . hotel room may be a public place for the purpose of making a warrantless arrest if the individual has come to stand in the doorway voluntarily.” Duncan v. Storie, 869 F.2d 1100, 1102 (8th Cir. 1989) (citation omitted). This action is not “voluntary” when an individual is compelled to stand in the doorway or “when officers deceive an individual in order to bring him to the door.” Id. The Eighth Circuit has cautioned that the court should not “become preoccupied with the exact location of the individual in relation to the doorway” when deciding this issue. Id. Rather, “the crucial issues involve the individual's reasonable expectation of privacy and whether that individual came to the doorway voluntarily.” Id.

         I conclude that Defendant had a reasonable expectation of privacy and only opened the door in response to a ruse intended to lure him to the door. I further conclude that Defendant would have a reasonable expectation of privacy in the room and a reasonable expectation his person would be free from seizure despite having opened the door to what he was led to believe was a hotel employee.

         I find that the entry by law enforcement into the hotel room when Officer Ehlers grabbed the Defendant and pulled him into the hallway and when the other officers entered the room constituted an intrusion on a constitutionally protected area. Accordingly, the hotel room retained the characteristics of a private place and unless this search was justified based upon the considerations below, it was presumptively unreasonable and the fruits of the search may be subject to exclusion.

         b. Probable Cause

         Officers may not effect a warrantless arrest in an individual's home without both probable cause and exigent circumstances. Duncan, 869 F.2d at 1102 (8th Cir. 1989). Probable cause exists at the time of the arrest “where the available facts and circumstances are sufficient to warrant a person of reasonable caution to believe that an offense is being or had been committed by the person to be arrested.” United States v. Kelly, 329 F.3d 624, 628 (8th Cir. 2003) (citing Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979); United States v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001)).

         Here the Government alleges law enforcement had probable cause to believe Defendant possessed a sawed-off shotgun in violation of state and federal laws. The officers were in possession of information from a CI that Defendant possessed such a shotgun. Officer Ehlers saw the shotgun in Patterson's car where Defendant had been seen earlier in the day. I conclude the facts from the CI, corroborated by the officers' own observation, were sufficient to support probable cause. Thus, the first element of the test to determine if a warrantless arrest may be effected has been met and I turn to the question of exigent circumstances.

         c. Exceptions to the Warrant Requirement

         The Government alleges that the existence of probable cause and exigent circumstances justified the warrantless search and seizure. The exigent circumstances exception “permits an officer to enter a home if he or she acts with probable cause in the presence of exigent circumstances.” United States v. Schmidt, 403 F.3d 1009, 1013 (8th Cir. 2005). “Exigent circumstances are present where lives are threatened, a suspect's escape is imminent, or evidence is about to be destroyed.” Williams, 521 F.3d at 908 (citing United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996)). When a search or seizure is conducted without a warrant, the Government “has the burden of justifying the warrantless entry under one of the recognized exceptions.” United States v. Selberg, 630 F.2d 1292, 1294 (8th Cir. 1980).

         “The question . . . is not whether there were actual probable cause and exigent circumstances, but whether the officers could reasonably have thought so.” Greiner v. City of Champlin, 27 F.3d 1346, 1353 (8th Cir. 1994) (citation omitted). The court considers “the circumstances that confronted police at the time of entry” to evaluate whether the warrantless entry was justified. United States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005). The Government alleges the exigencies here were either officer safety, that evidence was about to be destroyed, or the need to conduct a protective sweep. Thus, the questions to be decided are whether the officers could reasonably have believed there was probable cause and either (a) the officers' safety was at risk, (b) evidence was about to be destroyed, or (c) there was a need to make a protective sweep of room 808. As discussed above, I have already determined that the officers had probable cause to enter room 808. The following analyses will determine whether exigent circumstances existed based on officer safety of potential destruction of evidence.

         i. Exigent Circumstances

         The Government's resistance makes only a passing reference to the exigencies it relies upon to justify the warrantless search. The Government appears to be relying more on the assertion that Defendant was taken into custody in the hallway after “[h]e voluntarily opened the door.” (Doc. 55 at 6.) The Government's Resistance cites Granados and asserts, “‘Exigent circumstances'” can include the need to prevent the destruction of evidence. Id. (citing Granados, 587 F.Supp.2d at 1119). This is merely conclusory. The Government does not say what evidence it thought might be destroyed if police officers waited for a warrant or what dangers would have necessitated a protective sweep.

         A. Officer Safety

         “A legitimate concern for officer safety or the safety of others may constitute an exigent circumstance, and a warrantless entry into a residence may be justified if an officer has a reasonable fear of harm.” United States v. Poe, 462 F.3d 997, 1000 (8th Cir. 2006) (citing United States v. Hill, 430 F.3d 939, 941 (8th Cir. 2005)). “The analysis of whether this exception to the warrant requirement has been made out is an objective one focusing on what a reasonable, experienced police officer would believe.” United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003) (quotation omitted). Officers may be justified in entering a hotel room when there is a “reasonable belief that it was necessary to protect the [officers] and the public from a possible violent action from [the occupant of the room].” United States v. McConnell, 903 F.2d 566, 570 (8th Cir. 1990).

         For example, in United States v. Williams, law enforcement had engaged an informant to sell the defendant fake cocaine. 633 F.2d 742, 743 (8th Cir. 1980). Worried about their informant's safety once the cocaine was tested and found to be fake, law enforcement entered Williams's home and arrested him without a warrant. Id. Williams found there was reasonable fear of harm to the informant, and thus, exigent circumstances justified the entry and warrantless arrest. Id. at 744.

         In the case at bar, the Government offered little support for the assertion that Defendant presented a threat to safety while he was in his hotel room. He had made no threats and he had not brandished the shotgun that was, in any event, left in Patterson's car. The officers did know another person was in the room and had intelligence the Defendant possessed bladed weapons. Nevertheless, I recommend the Court find there were no exigent circumstances based on officer safety. The Government's reference at the hearing to the need to make a protective sweep for officer safety confuses the issue. The Government needs to show the exigent circumstances that justifies law enforcement's entry into the hotel room in the first place. Once law enforcement has entered, a protective sweep for officer safety may be justified. See United States v. Green, 560 F.3d 853, 856 (8th Cir. 2009) (citing Maryland v. Buie, 494 U.S. 325, 337 (1990)). However, law enforcement cannot justify the decision to enter in the first instance by the need to protect themselves once they are in.

         The case at bar can be distinguished from another hotel room warrantless-entry case wherein the Eighth Circuit held that the entry was supported by exigent circumstances. See McConnell, 903 F.2d 566. In McConnell, a police officer was called when hotel staff found a loaded gun left behind when a guest switched rooms. Id. at 568. The officer talked to the guest in the hallway because he would not allow the officer to enter the room, stating that his “girlfriend was asleep.” Id. at 569. The guest gave the officer an obviously false I.D., and then offered his real I.D., when told he was “caught.” Id. The guest lived in the same town, which the officer found suspicious. Id. The officer gave the guest time to gather his belongings before hotel staff evicted him for registering with a false I.D. The officer waited in the hall several minutes for the guest's alleged girlfriend to get dressed before he admitted he was alone. Id. This further aroused the officer's suspicions. Id. After several more minutes, the officer announced through the now-partially-opened door that he was entering the room. Id. The officer there saw drugs in plain view. Id. He entered the room “based upon fear of harm to himself, hotel personnel, and hotel guests” because the man had brought at least one loaded gun into the hotel; the man had lied to him and hotel staff about his identity and about having a travel companion in an attempt to keep the officer out of his room and, perhaps, “to give him time to prepare to take some action against the officer or [other] guests.” Id. at 569-70. In addition, the guest's “failure to realize his misplacement of a single loaded revolver” might have been an “indication that he had additional guns with him.” Id. at 570. Moreover, other guests could have been put at risk if he left the scene to obtain a search warrant. Id.

         The only evidence of possible danger the officers had in the case at bar was the tip from Investigator Del Valle stating that Defendant had a sawed-off shotgun, which was secured in the parking lot by the time officers entered the casino hotel. Defendant was reported to have only a “personal-use” amount of methamphetamine, which is not a public safety concern that rises to the level of an exigent circumstance. Although Defendant was reported to have multiple blades, neither the officers nor the Government relies on the blades as a basis for exigent circumstances for entry into the hotel room. I do not find that the presence of blades, alone, provides a basis for exigent circumstances unless there is a threat of imminent harm. See Conner, 948 F.Supp. at 849 (finding that fact that officers could have believed suspects had weapons ...

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