United States v. Kenneth Clement
854 F.2d 1116
8th Cir.
1988
Check Treatment

*1 of coun- assistance no relief on ineffective Strickland, America, See, Appellee, grounds.

sel UNITED STATES 2052. that he did suffer Appellant’s contention CLEMENT, Appellant. Kenneth conviction prejudice his 87-2651. No. by Arkansas courts have been reversed properly if issues on state constitutional Appeals, Court of rights under of his regardless appealed, Eighth Circuit. Appel law, unpersuasive. is also federal May 1988. Submitted allegation argument on lant bases warning specific Aug. Decided under Arkansas law disadvantages of self- dangers and required in record is representation on the effective waiver.

every circumstance argu support this

The case law does not Instead, have courts the Arkansas

ment. might be better for “[wjhile it

held that express warning

record to contain rep disadvantages of self

the court establish that in order to

resentation doing he is what

accused knows eyes open,” such made with his

choice is particular required if the

warning is not of a case show

facts and knowledge or full

that the defendant had concerning rights. warning

adequate State, Ark.App. 691 S.W.

Barnes v. Additionally, it 178, 181(1985). must

2d Supreme Court

noted that the Arkansas petition, appellant’s Rule

found issue of his assist

appellant did raise the trial, to be without sub

ance of counsel Accordingly, our deference

stantiation. requires us on state law issues

state courts appellant relief on this to award

to decline law issue.

state the decision of

Accordingly, we affirm petition for denying the

the district court corpus.

habeas

February Drug undercover En- (DEA) Agency forcement agents made co- purchases caine Stephenson from Sam William agents subsequent- McDade. The ly negotiated Stephenson with and McDade purchase kilograms to five cocaine St. Louis, Missouri, February on 1987. February Around 11:00 a.m. on agents two of the Stephenson met with room, Airport his hotel room at the Holiday Bridgeton, Inn in Missouri. Ste- phenson agents told the that men named bringing Kenneth and Juan would be flight cocaine to St. Louis on a from Miami day. During meeting later that Ste- phenson called Kenneth in Miami and one agents spoke to him. Kenneth told agent that he and Juan were obtaining the kilograms. trouble full five agent The bring told Kenneth to what he flight day. had on the After meeting over, agents discovered that Ste- Taseff, Ill., George Bloomington, F. for phenson and McDade had moved rooms appellant. Holiday Inn. The Herzog, Atty., Debra Asst. U.S. St. agents up nearby set surveillance rooms. Louis, Mo., appellee. for night, p.m., Later that at 10:55 DEA agents airport stationed at the observed BEAM, Judge, Before Circuit Clement, wife, Kenneth his and a man later SNEED,* BRIGHT and Senior Circuit flight identified as Juan Sastre arrive on a Judges. claiming bag- from Miami. After their gage, they proceeded Holiday Inn PER CURIAM. and checked into room 306. appeals Kenneth Clement conviction a.m., Stephenson cocaine, At 12:15 and McDade conspiracy posses- to distribute entering leaving were seen and then room cocaine, sion with intent to distri- distribute Stephenson 306. and McDade then drove cocaine, possession bution of of a fire- the Marriott hotel and entered room by argues arm a convicted felon. He there at 12:30 They were arrested on conviction was kilograms attempting a.m. after to sell two suppressed should have based been be- agents. to the undercover of cocaine through government cause it was obtained agents’ warrantless and nonconsensual DEA then returned to the entry forced of his hotel room. We affirm. Holiday Inn and went to room 306 at 1:15 Apparently anticipating a forced en-

a.m. try, sledgehammer pos- I. in their they had a they brought session that to the hotel FACTS AND PROCEEDINGS BELOW previous day. They did at 11:30 a.m. the and Clement anyone substan- not to arrest or to have warrant tially agree Agent as of the case. facts search the room. Luss knocked on differ, however, They legal 306; as to the rele- the door of room announced that February agents, and vance of those facts. On 6 and were federal enforcement * Sneed, Joseph designation. The Honorable T. Senior United Circuit, Judge sitting States Circuit for the Ninth adopted be denied. The district entry. He then looked

demanded denied Magistrate’s outside of the closed recommendation and peephole on the testified as follows about suppress. door. He later motion to Clement’s ensuing events: August waived his On *3 Q. door? came to the Who parties agreed right by jury to trial and the to the who came door. A. I don’t know court on a to submit case to the district of the door and dart- looked out Someone stipulation government’s evi- written there was some And ed from the door. 23, 1987, dence. On October the district there, in noise, scrambling around some conspiracy guilty found Clement to court open door. time we forced at which 841(a)(1) cocaine, 21 U.S.C. distribute §§ 846, to possession with intent distrib- 841(a)(1), cocaine, ute 21 U.S.C. distribu- Q. you it observed? And what was § 841(a)(1), cocaine, tion 21 U.S.C. § Well, eyeball peek A. I observed possession shipped of a firearm or trans- noise take through the door and some by a ported in interstate commerce convict- all. place then. That’s felon, 922(g)(1). On Novem- ed 18 U.S.C. § hap- Q. you explain how that Would ber the district sentenced pened? years prison in on each of Clement to nine door; A came A. ... years on the counts and five through peephole; and start- peeped count, weapons the sentences to run con- I don’t know running; left the door. ed timely per filed currently. appeal This was noise in the if he ran. And I heard some 4(b) 7, 1987. Fed.R.App.P. on December point open force room. At that we sledgehammer. of a door with the use Hearing Pretrial Motions Be-

Transcript of II. 11, (M.T.) Magistrate 26-27. fore U.S. JURISDICTION entry, agents arrested After the forced handguns and seized Clement and his wife district court was jurisdiction cocaine, scales, Clement, registered mon- to upon 3231. This founded 18 U.S.C § ey, plane a ticket in the name of Juan jurisdiction upon rests 28 U.S.C. court’s sliding Agent Luss looked out the Suarez. § lying on the glass doors and saw box contained ground the room. box below III. Sastre, apparently had cocaine. Juan who door, sliding glass through fled REVIEW STANDARD OF hiding room in the later found another sup review denial of motions We hotel. press warrantless evidence obtained suppression hearing A was held front exigent circumstanc searches a claim of Magistrate. of a United States At clearly erroneous standard. es under Lodi, hearing, Clement called Joan a securi- 1366, v. F.2d United States 746 ty investigator testify conditions about (8th 1367 ar- at the hotel where Clement been (1985); outside the rested. She testified from Wentz, F.2d 657 686 looking peephole she was room Cir.1982). person out a “in distin- unable to make cross-ex- guishable form.” M.T. at 36. On

amination, period admitted that she IV. investigation and her the arrest between DISCUSSION and the that the room had been remodeled peephole replaced with another. York, 445 Payton v. New Under 573, 576, 590, 100 S.Ct. U.S. May 28, 1987, Mag- the United States

On (1980), in L.Ed.2d 639 addition recommended that Clement’s motion istrate cause, probable police must obtain a suppression of evidence and statements

H19 making felony arrest in We held that presence dence. have warrant before “[t]he there are suspect home of a unless believed to be in We have noted in imminent or exigent circumstances. removal destruction recognized protections against “the war- is well as a circumstance past may permit in Payton into the home immediate action.” rantless intrusions equal Kulcsar, apply with force to v. New York (8th Cir.1978); during the rent- properly rented hotel room see United States Rambo, Wentz, (8th Cir.1982). period.” al States v. United Cir.1986) (citation While it is true that officers must F.2d Morales, omitted); 737 “demonstrate a sufficient basis for an offi see United States Cir.1984). somebody cer to believe that resi *4 likely evidence,” destroy dence will United Exigent may pro circumstances Beck, 527, States v. 662 F.2d 530 Cir. entry. a warrantless How vide a basis for 1981), not, however, they need wait until ever, exception exigent the circumstances process being the evidence is the of narrowly to the warrant is destroyed entering before the residence. States, 333 drawn. v. United See Johnson Blake, 50, 484 United States v. 55 369, 10, 15, 367, 92 L.Ed. 436 U.S. 68 S.Ct. (8th Cir.1973), denied, cert. 417 U.S. (1948). necessary It is not to obtain a (1974). 94 S.Ct. 41 L.Ed.2d 669 In threatened, suspect’s if lives are a warrant sum, “exigent” the circumstances that are imminent, escape is or evidence is about to which, in a case such as this are those 436 destroyed. Michigan Tyler, U.S. be objectively, when viewed are both inconsist 1942, 1949, 499, 509, L.Ed.2d 98 S.Ct. 56 ent with lawful behavior and (1978); 387 Hayden, 486 U.S. Warden threaten the imminent destruction of evi 294, 298-99, 1642, 1645-46, 87 18 S.Ct. dence. (1967); California, 782 Ker v. 374 L.Ed.2d 1623, 1634, 23, 42, 83 S.Ct. 10 L.Ed.2d U.S. question The before us is whether Wisconsin, (1963). 726 But Welsh v. 466 exigent necessary the circumstances exist 740, 749-50, 2091, 2097-98, 104 U.S. S.Ct. entry ed that validate the officers’ forcible (1984), Supreme 732 the Court 80 L.Ed.2d into hotel room without a war Clement’s heavy burden stated that “the bear agreed The district court here rant. with urgent attempting when to demonstrate an magistrate’s the conclusion that might justify need that warrantless present because the circumstances were or arrests.” And in searches United occu agents “reasonably inferred” that Selberg, 630 F.2d 1295 States expecting 306 their pants of room were Cir.1980), is on the we said “the burden proceeds return the associates to with entry excep the state to show the is within their sale of cocaine and that the earlier tion, objective and an standard is used to expected to warn nonappearance could be the reasonableness of the officer’s evaluate Thus, had failed. that the sale that circumstances existed.” belief agents significant risk that faced “[t]he delay obtaining a warrant would argues The here that alarming defendants Sastre and agents’ DEA the evidence result the fear Clement, or destruc precipitating constitutes removal was in of destruction Magistrate’s Review necessary warrantless en tion of the cocaine.” basis for the at 13. The cocaine primarily upon our decision in and Recommendation try. It relies Stephenson that amount 746 F.2d 1366 referred United States v. denied, already delivered to (8th Cir.1984), and McDade had not cert. 470 U.S. (1985), circum agents. the DEA The essential 84 L.Ed.2d 383 105 S.Ct. response the lack of at quite to those stances included facts of which are similar ap There, here, knocking, seeing someone the officers door after before us. as door, peephole through look proach the likelihood that were confronted with retreat, hearing scrambling defendant, upon becoming aware that a that one of the sour, The court also noted gone destroy had the evi- noise. deal Palumbo, (8th Cir.), temporarily escape did in fact defendants 332, 83 469 U.S. during time it took to break (1984). gravity add that the L.Ed.2d the door. We would impor- weighs heavily “as an the offense Beck, In exigent- factor to considered tant we had serious doubts v. Wiscon- Welsh calculus.” necessary exigent sin, S.Ct. There, arrested a mari- existed. (1984). trafficking Cocaine juana in front the residence of his dealer course, is, offense. a serious drug. for the One of the officers source they approached Room 306 watching upstairs as someone from an “saw occupants. probable cause to arrest its window.” Id. 529. He called out this preclude of a warrant does not pro- absence information to other officers who then door, the announcement of a knock on regard- ceeded to enter residence. We identity, entry. the demand of their disappearance of a face in the win- ed entry Their forcible thereafter must rest “essentially dow as an neutral” circum- upon the circumstances set forth above. That is it inno- stance. was consistent with argument essentially is that de- Clement’s us, cent behavior. The case before how- they fail to meet spite these circumstances ever, is different the circumstanc- *5 exigent standard the subsequent knocking es to the were not all could have established surveillance of consistent with innocent behavior. preserved exits from the room and the sta- clearly standard, Under the erroneous we quo until a warrant was obtained. The tus must defer to the decision of the lower implicitly rejected argu- district supported by it is court “unless not sub not ment. We hold that to do so was evidence, it from an errone stantial evolves clearly erroneous. law, conception applicable ous or we support in Clement cites several cases firm are left with a conviction that a mis argument that made take has been after con present. not In were United States the entire record.” sidered Williams, 604 F.2d Cir. Cir. Wallraff 1979), only exigent we found that the cir 1983). required We are to defer to the were the matter of the cumstances court’s decision under the facts of district (narcotics) investigation police and the offi this case. testimony cers’ about the sound of “run AFFIRMED. ning showing no that feet.” We found danger was in “imminent of de BRIGHT, Judge, Senior Circuit v.Ker Cali removal,” quoting struction or dissenting. fornia, 374 U.S. 40-41, 83 S.Ct. I dissent. 1633-34, (1963), 10 L.Ed.2d 726 or that contention, Contrary majority’s to the “compelling there was a need for official warrant,” underlying the facts warrantless search and no time to secure a action present in case do not mirror the facts quoting Michigan Tyler, 436 U.S. Knobeloch, 98 S.Ct. 56 L.Ed.2d 486 (1978). case, however, In the instant (1985), Magistrate’s

district court endorsed the which, me, it seems finding that Clement could be a case tested supposed warning delay exception to “take from the [Stephenson return and warrant to its outer limits.1 McDade’s] case, arrest, scurrying immediately upon In heard officers while that outside room evidence would [306] destroyed.” justified a fear that defendant Knobeloch’s confederate told the arresting officers that Knobeloch expected 1367; see United States v. immediately proceeds him with the 746 F.2d at back panel 1. I served on the that decided Knobeloch.

H21 officers, drug sledgehammer sale. The realiz- to the hotel at 11:30 a.m. on ing that Knobeloch would discover that the day before the search. The en- gone they deal had sour well before could agents simply forcement dispense chose to warrant, immediately proceeded obtain to with the Fourth safeguard Amendment they Knobeloch’s hotel room. After identi- magistrate a neutral prob- who determines officers, they fied themselves as doing able cause. In so leave the scuffling in the Fear- heard sound room. individual at the whim of law enforcement ing drugs destroyed, would be authorities. they entered the room found cocaine The Fourth Amendment is central to our person. on Knobeloch’s This court held important, Constitution. It is not for the possibility that the Knobeloch individual, criminal for but as it is the warning delay take from his confederate’s individual’s only protection from unwar- together returning, scurrying with the ranted invasions into privacy. his or her room, sounds heard in Knobeloch’s hotel majority’s willingness to read the justified a fear that evidence would be de- Fourth Amendment out of the Constitution stroyed. upheld The court thus the search protection this case bodes ill for the despite the law enforcement officials’ fail- privacy against individual’s uncontrolled ure to obtain a warrant. by police. invasion The Fourth Amend- Here, however, nothing there is protects against ment us all that evil. That suggest record to that Clement was await- guilty on occasion the might escape prompt ing Stephenson’s McDade and return and punishment price is a society pay must that the evidence was in of destruc- protection yes, even individual— that, Magistrate simply tion. The held rights of innocent individuals. presented sup- from the evidence at the *6 pression hearing, “this deduction was rea- But here let us note that enforcement of sonably inferred who made the Fourth necessarily Amendment will not However, dispense the arrest.” with the guilty. government free the has the requirement simply on the warrant mere and, right retry as the facts set possibility destroyed that evidence will be opinion demonstrate, forth in majority impotent. renders the Fourth Amendment evidence, ample has even cases, particularly This is true in search, without the tainted with which to capable quick where the is de- retry him and in all likelihood obtain Diaz, struction. See United States retrial. conviction on (7th Cir.1987). F.2d instead, majority ig- But here has virtually indistinguishable This case is protection nored the constitutional Williams, from excep- Fourth Amendment and allowed the (8th Cir.1979), where we refused to tion circumstances swallow dispense with the warrant reject ap- I the constitutional rule. only where asserted circum- proach. were the stances matter of the in- i.e., vestigation, drugs, and the sound of

running good feet. is Williams still law controls facts of this case. guarantees

The Fourth Amendment special reflecting

absent

compelling need for official action and no warrant,

time to obtain a law enforcement

officials must obtain a warrant before private dwelling.

search individual’s Id. special

at 1122-23. No such agents prepared here.

exist for a non- they brought

consensual search when