*2 RILEY, BEAM, Chief Judge, Before BYE, Judges. Circuit BEAM, *3 Judge. Circuit appeals Ramirez the district Carlos from suppress of his court’s denial motion during obtained a hotel room raid Omaha, Nebraska, in in June by officers we there 2009. Because conclude were no circumstances sufficient to justify entry, the warrantless we reverse.
I. BACKGROUND 29, 2009, conducting June officers On Greyhound surveillance at the termi- bus in nal Omaha arrested Juan Perez and Amaya-Armenta carrying Juan heroin their shoes. Perez informed officers that traveling with a wearing he was third male logo, dark shirt with white who also in his Following had heroin shoes. arrests, the officers tried to uncover addi- to locate man tional evidence this third bags and removed identified several They under the bus. then bags by locate the owners of the retrieved passengers, the bus but no- approaching ownership. body claimed A search of the bags abandoned uncovered identifica- belonging tion card to Hector Cruz. The investigators spoke to driver who the bus missing passen- that he was reported five gers, two of whom officers determined already-arrested men. The offi- were were then able to obtain the ticket cers three, remaining for the iden- information Cruz, Ibarra-Penuelas, tifying Luis Hector and Ramirez. information, the ticket officers
From that Ramirez and Ibarra-Penuelas learned Newark, traveling Diego were from San cash, tickets, one-way purchased on Omaha, Wesley Dodge, argued, Scott Amaya- the same fashion Perez and much NE, Appellant. for traveling also on Armenta—who tickets, Svoboda, AUSA, cash, one-way purchased Nancy argued, A. Oma- about ha, NE, or within of each other. Appellee. for same time minutes room,
Cruz traveled in a similar fashion on a to the copy as well as a nearly pur- receipt identical route with a ticket showing the room was rented to cash, accompanied chased with Ra- 220; Cruz. Officers then went to room all, mirez and Ibarra-Penuelas. six responded at the Econo Lodge, at least one of whom established goose A bit of a chase Through ensued. perimeter An surveillance. officer close to efforts, combined after an officer contacted the door testified that only sound he local companies cab to see there was a was, heard from the room after ulti- he station, pickup recent from the bus mately knocked on the the sound of nearby officers went to a Best Western *4 an individual approaching the door. There hotel to possibly determine the men is no evidence that the men inside room There, went there. the officers learned 220 even knew the police were on their that three individuals arrived at the Best trail. in a stay. Western cab but did not After questioning employees of the Best West- Once at room attempted an officer ern, officers that swipe learned one of those indi- to key gain entry card to into viduals description matched the of the the room but the card did not At work. traveling companion provided by Perez that point, the officer blocked the peep- hole, and another photo matched the Cruz knocked on the and announced retrieved from the bag. abandoned Fur- “housekeeping.” Cruz partially opened investigation ther revealed that the men the door and when the officer announced had then taken cab to the presence Comfort Inn. his badge, flashed his Cruz Inn, At the Comfort video surveillance re- push to the door shut. The individuals, vealed that three ram, one of whom officers used a had description Perez, matched the given by brought along apparently anticipating a and another that matched Cruz’s identifi- entry, forced to open. force the door The card, cation exited a cab in front of Ramirez, Ibarra-Penuelas, found Instead, but did not enter the hotel. and Cruz inside. After conducting cur- they walked a nearby to sory McDonald’s and sweep men, and securing the three officers noticed from the video that two investigator pairs noticed two of shoes on them “heavily-footed,” walked or not nor- the side of the bed similar to packed those mal. McDonald’s, At the officers with by heroin and worn Perez and Ama- learned from an employee that ya-Armenta. she had Ramirez and Ibarra-Penue- provided three individuals with a phone las denied that belonged these shoes book and noted that them, the men looking were and Cruz a pair claimed of boots for a cab. The officers contacted various located elsewhere in the room as his. Af- local cab companies again and were told ter the men ownership denied of the two three individuals picked up were pair bed, by shoes investigators McDonald’s area and taken to the Econo searched the shoes for contraband and Lodge. found heroin in each. The entire course of events from the approached time officers At Lodge, the Econo an officer learned Amaya-Armenta Perez and at the bus sta- from the desk clerk that three men tion, and the officers’ arrival at the Econo checked in about a half hour earlier and Lodge approximately two and a half that one of the men person looked like the hours. on Cruz’s identification card. The clerk told the these men were in court, Before the district Ramirez ar- room gave 220 and key the officers a gued card that the search of the hotel room was government.” and seizures conducted without a search illegal and Williams, judge recom- magistrate The warrant. found, .2008).
mended,
court
and the district
Cir
by an
justified
exi-
the officers’
right
people
be secure
the officers’ reasonable
gent circumstance:
houses,
persons,
papers,
and ef-
would be imminent-
fear that the evidence
fects, against unreasonable searches and
magistrate
judge’s
ly destroyed. The
seizures,
violated,
shall
be
and no
court)
(also
the district
analysis
adopted by
issue,
upon probable
Warrants shall
but
known to the
following
on the
facts
focused
cause,
affirmation,
or
supported
Oath
1)
prior
entry:
to the
one of
describing
particularly
place
reasonably believed the men
investigators
searched,
or
persons
things
be
and the
the officers after
attempting
to elude
to be seized.
the two
the officers arrest
-witnessed
Const,
U.S.
amend. IV.
2)
stop;
the men
room
men at the bus
one-way tickets to
purchased
220 had
The text of the Amendment itself
cash,
Newark,
Jersey, with
and were
*5
New
expressly
imposes
requirements.
two
3)
Omaha;
after the officers
not from
“First, all searches and seizures must be
presence,
announced their
Cruz
Second,
may
reasonable.
a warrant
not be
the officers
prevent
to shut the door to
probable
properly
issued unless
cause is
inside,
entering the room. Once
be-
scope
established and the
of the authorized
ownership
the men did not claim
Ken
search is set out with
particularity.”
shoes,
they
court determined
were
—
tucky King,
v.
-,
U.S.
131 S.Ct.
and thus the men had no ex-
abandoned
(2011).
1849, 1856,
by knocking on
so,
doing
Fourth Amendment and in
like-
occu-
announcing
presence,
their
rights
wise
of occu-
privacy
discussed
destroy
to
to
evidence—a
pants
attempt
pants
obligation
who
no
whatsoever
“police-created
most basic scenario of
respond.
to
at
No matter
Id.
1862.
Id. at 1854. The
exigency” doctrine.
the officers in
on the
King banged
door
any exigency that existed
Court held that
loudly
presence,
and
announced their
and that
war-
was not
police-created
Court held that
law
“[w]hen
enforcement
justified.
rantless
and search
officers who
with a
are not armed
warrant
at
Id.
1863.
door,
they
any
knock on
do no more than
King’s
of reasonable
discussion
private
might
citizen
do. And whether
analysis on
conduct informs our
the issue
person
is an officer
[the
at the door
or a
fact, sup-
genuine exigency,
whether a
private person],
no
occupant
has
obli-
entry in
ported
the instant
the warrantless
gation
open
speak.”
or to
the door
Id.
here,
King
the officers in
case. Relevant
occupant,
now alerted to the
they
arrived at a door from
smelled
open
presence, may even choose to
marijuana
banged
and the
smoke
officers
speak
and
door
but need not allow the
they
on the
as loud as
could and
door
may
and
refuse to
enter
answer
“Police,
saying
presence,
announced
But,
questions
Id.
time.
cautioned
something to
police, police,” or
that effect.
Court,
occupants
choose not to
Id. at
An officer testified that as
rights
stand on their constitutional
on
banging
soon as
started
“instead
attempt
elect to
evi-
inside
people
moving
hear
could
dence,” they
only
“have
themselves to
things
though
being
it
as
sounded
*7
exigent-circum-
blame for the warrantless
moved,
to
that
leading the officers
believe
may
stances search that
ensue.” Id.
about
drug-related evidence was
to be de-
upon
One of the
facts relied
stroyed.
Accordingly, the officers an-
three
the
Id.
going
analysis
court
they
exigency
nounced that
were
to make
district
in its
rule,
"police-cre-
gent
King.
existed in
The Ken-
circumstances
the so-called
tucky
Appeals found that
was a
exigency”
Court of
there
ated
doctrine.
"Under
this doc-
Kentucky Supreme
exigency
trine,
real
but
the
police may
rely
on the need to
doubt, "observing
expressed
Court
that there
prevent destruction
evidence when that exi-
'certainly
question
was
as
some
to whether
gency
‘manufactured’
‘created’ or
the
moving
persons
[inside
sound of
police.” King,
conduct of the
131
at
S.Ct.
apartment]
to establish that evi-
was sufficient
"police-created
(discussing
1857
the various
”
destroyed.’
being
King,
dence was
exigency”
developed by
exception tests
(alteration
original) (quoting
S.Ct. at
that, despite
establishing
courts
lower
and
Commonwealth,
King v.
302 S.W.3d
many
imposed
requirements
by the
unsound
(Ky.2010)).
weigh
The Court did not
in on
courts,
predicate
any
lower
the essential
to
conclusion,
arrived at its
“as-
matter and
incriminating
valid warrantless seizure of
evi-
sum[ing]
argument
purposes of
that an
for
did not
dence
that
the officer
violate the
1862.
exigency existed.” Id. at
arriving
place
at the
Fourth Amendment
seized).
Circuit,
which
courts,
the evidence was
Many
including
Eighth
3.
developed
exception
entry
respond
speak, maybe
this warrantless
was not to
or
or
supporting
even
attempt
it,
Cruz’s
to shut the door once he
open
choose to
the door and then close
police presence
aware of the
out-
became
or when
anything
no one does
incrimina-
This, however,
side room 220.
occurred
ting,
the officers must bear the conse-
unsuccessfully attempted
after the officers
quences
investigation
of the method of
unconstitutionally
enter room 220 with
they’ve
point,
chosen. At that
if their
“
card,
compro-
admit
key
fails,
investigation
method
‘the
will have
outside the hotel room
position
mised their
reached a conspicuously
point,’
low
and the
failure,
morning.4
As a result of that
occupants
warning
‘will have the kind of
peephole,
the officers blocked the
knocked
security sys-
that even the most elaborate
door, and announced
”
“housekeep-
on the
provide.’
tem cannot
(quoting
Id.
ing.”
wholly ignore
Even
we to
Chambers,
failed unconstitutional
that set the Cir.2005) (Sutton, J., dissenting)). Accord-
(accord-
stage, so-to-speak,
prompted
ingly, crediting these officers with conduct-
officers)
ing to the
this knock and an-
ing
attempt
a run-of-the-mill
to simply
nounce,
we
make no determination
gain entry,
knock and
Cruz was under no
regarding
any alleged exigency
whether
obligation to allow the officers to enter the
that point
police-created,
Cruz’s at-
premises
point
at that
and was likewise
tempt to shut the
in response
door
to the
within
attempt
his bounds in his
to close
knock does not support
exigency
here.
so,
more,
the door. That he did
without
plain
King,
Made
officers does not bolster the claim that
it was
certainly
option
have the
at all times to reasonable to conclude that the destruction
merely knock on a door
entry.
and seek
of evidence was imminent.5
Indeed, King
might
holds that officers
Looking
remaining
then at the
two bas-
reasonably pound
even
on a door and an
analysis,
es for the district court’s
the cir-
presence
nounce their
running
without
upon by
cumstances relied
police-created
afoul of the
the district
exigency rule.
court
so,
exigent.
Id. at
are not
“The
“they
urgency
1861. When
do
do no
than
private
justify allowing
police officers,
more
might
citizen
do.”
However,
Id. at
officer,
when
rather
than
judicial
a neutral
knock on door but
occupants
choose draw the reasonable inferences supporting
herein,
verbal, visual,
justification
4. As discussed
there is no
reaction had been the
or aural
on
attempt
of,
these facts for the officers’
here,
to enter
equivalent
"The
are
by way
swip-
room 220 without a warrant
*8
drugs,”
analysis may
our
be different.
ing
key
card. The officers had no warrant
Chambers,
563,
See United States v.
395 F.3d
exigent
sup-
and there were no
circumstances
(6th
J.,
Cir.2005) (Sutton,
(dis-
dissenting)
porting
entry,
this
had the officers succeeded.
cussing a situation where a woman came to a
Williams,
(discussing
See
ing in The evidence supports propo destruction of evidence. United Wentz, sition that the officers tracked these men Cir. 1982) because the officers (condoning warrantless believed the men were into prior part conspiracy home where a drug transaction at the bus station occurred occupants possessed because the would and additional contraband. But grow suspicious following when one of investigation the dealers leads a narcotics return, failed to having enough. been arrested is not upon by facts relied away while from the way house but on his suspects the district court—the alleged
765 al- information, exception circumstances exigent ticket “elusion,” suspects’ a residence officers to enter police door—do lows to close the attempt and Cruz’s circum- in limited Of without a warrant circumstances. exigent not establish stances, prevent a war- to the destruc- always get including course, need not evidence, long to do so as the or removal of probable have tion rant even But, to at 1860-61. cause to search. See police probable 131 King, S.Ct. so. Cisneros-Gutierrez, of a entry in violation v. States effect a warrantless (8th Cir.2010). 997, Amend- the Fourth “To evalu- rights under F.3d person’s justi- apply. entry must was ment, exception ate ‘whether a warrantless a reasonable Here, circumstances, objectively, we consider by exigent viewed Id. at 1856. fied it that was confronted fails to establish circumstances that government ” entry.’ (quoting to conclude Unit- for the officers of the Id. reasonable the time imminent, 1112, Leveringston, of evidence ed States v. destruction (8th Cir.2005)). objectively exigent circumstances look thereby establishing “We reasonable, room entry experienced po- into warranting the forced at whether a evidence was in lice officer would believe 220.7 Id. of removal or destruction.” danger circum- no we find Because danger of removal or de- such a While here, not determine we need stances in order likely must be to occur struction in this case “created” the officers whether entry, “need not justify would have nec- which itself any exigency, pro- evidence is ... wait until the entry. warrantless essarily precluded the destroyed entering.” before being cess of Id. at 1862. Clement, United States to convict Ramirez used The evidence Cir.1988). illegal entry into after the gained in not court erred totality 220. The district viewing room Objectively Accordingly, reasonable, case, this evidence. suppressing in this circumstances on count Ramirez’s conviction we reverse officer would believe experienced police convict used to likely the evidence two because the defendants a warrantless the fruit of to shut the him was heroin when Cruz exigent circumstances. knocked without after the officers hotel room door what themselves. Consider and identified III. CONCLUSION (1) two at that moment: the officers knew pro- morning further at the remand for arrested reverse and men were We kilograms of heroin opinion. with this with two ceedings consistent bus station (2) shoes; arrestee one hidden RILEY, Judge, dissenting. Chief (later passenger a fellow disclosed that Ramirez) had heroin in also identified as because a reason- respectfully dissent I shoes, gave and that arrestee exigent his would believe police officer able (3) passenger; of the other description justified entering the Ramirez, pur- men, having including of evi- three destruction prevent room to tickets, cross-country one-way, bus chased dence. support assertion is scant of that also evidence Assuming government intended to escape regarding destruction of suspects' analysis as a imminent and our advance the entiy into dispose warrantless of that justification equally applies for the readily apparent from which is room claim. argument, government's brief or oral *11 Jersey their to New abandoned California officers’ reasonable belief the defendants’ approxi- destroy at next be to of trip step dispose and left the bus station or bus (2) (4) arrest; heroin, and mately the time at the made immediate action same as the men, Cruz, prevent to necessary also the destruction one of the three least (5) bus; evidence. abandoned his suitcase on the three men took a cab to a Best Western panel majority The there determines hotel, Inn, another cab to a Comfort circumstances, were no at see ante restaurant, to a and walked McDonald’s 764-65, arriving at this mini- conclusion finally took a to an Econo different cab significance mizing the of the defendants’ Lodge, they approxi- where checked checking conduct before into their room. mately thirty police minutes before example, panel majority For dismisses (6) arrived; and in a surveillance video at assumption Investigator as a mere Alan Inn, appeared the Comfort two of the men Eberle’s belief the three men left the bus still have to the heroin in their shoes be- station because observed the arrests heavy-footed walked or abnor- co-conspirators, of their “there concluding mally from to the Comfort Inn the Mc- objective support insufficient evidence to Donald’s restaurant. presumption.” his Id. at 1. I 760 & n. Why disagree. traveling would three men light evidence,
In of this the officers’ paid to New Jersey California with that the men to might try belief or reportedly bus carrying tickets—one her- hide the heroin upon or other evidence oin shoes—abruptly is his oversized aban- reaching privacy of a hotel room was don dawn their before chosen cross-coun- objectively justified. with this Faced be- try transportation, mode of and some also lief, the officers had to choose between station, at luggage their the Omaha bus waiting two to four for a search hours and use three cabs to visit three hotels or trying warrant to contact with establish city? located in different areas of the three through men other some means.8 Considering the co-conspirators’ arrests is unnecessary It to decide whether this station, occurred at bus in time to close enough justify evidence was to warrant- disappeared, when the defendants it keycard entry, less as government ar- reasonable, speculative, and not for the gues, because police officers did not police deduce the men three succeed their attempted with the co-conspirators’ observed their encounter keycard. Instead, the officers thereafter with decided to flee the scene. tried to establish contact with the defen- dants knocking on the door and an- disagree I panel majority’s also with the nouncing presence opened when Cruz “[t]here assertion is no support- certainly which the officers could ing the inference that these men knew with do or without exigent circumstances. tracking them at at all.” Id. response opening Cruz’s the hotel room ignores 768. Even one con- logical door, seeing then pushing men clusion the fled the station to avoid (1) the door shut objectively supported confederates, the fate of their the defen- position 8. The particularity requirement.” officers were in no to obtain a (quoting United Alberts, (8th search warrant until the officers located Cir. 1983))). staying. where the necessary defendants were See Unit- two to four hours Curry, ed States v. 76-77 obtain a search warrant for the defendants’ Cir.1990) (" 'A search must begin warrant contain a could room to run until the description place to be searched’ defendants were discovered and identified comply Lodge. order with the fourth amendment’s the Econo
767 Gates, face”); 462 Illinois v. police officer’s] the officers obviously knew dants cf. 213, 13, 2317, n. 103 76 by the time U.S. 243 S.Ct. successfully tracked them (1983) (“In making Even before L.Ed.2d a determi- the hotel door. 527 opened Cruz clandestine ef- of relevant in- probable the defendants’ nation the point, this trying to evade is quiry particular is not whether conduct indicate forts by degree Three visits ‘guilty,’ law enforcement. ‘innocent’ or but the is suspi- cabs dawn suspicion types different before that attaches to particular three acts.”). for the most discern- behavior even to the cious of noncriminal When added supports circumstances, This at ing traveler. conduct existing Cruz’s suspicious the defendants suspicion least a reasonable additionally justifies the closing the door find try would them. police the feared entry. officers’ circumstances Having removed these exigent existed Because circumstances consideration, majority rea- panel the ques- when Cruz shut the hotel the closing act of the door—de- sons Cruz’s tion whether officers police becomes the Investigator Stephen Rasgor- by scribed cir- impermissibly exigent created these “attempt[] the shek an to slam door as cumstances, jus- in case they which cannot support exigency not the shut”—“does tify the warrantless search. See United here,” panel majori- the id. at While Duchi, 1278, v. 1284 States correct, no ty “Cruz was under obli- is Cir.1990). in- Supreme has Court the to enter the gation to allow officers circumstances exigent structed rule “the ... ... within premises his justifies a warrantless search when door,” attempt in his to close bounds police preceding exigen- conduct id., act is propriety Cruz’s not dis- cy meaning of the is reasonable” within the issue hand. positive of the at King, Kentucky Fourth Amendment. shutting act of the door did not Cruz’s 1858, U.S.-,-, 131 563 S.Ct. isolation, the culmination occur in but was (2011). ... L.Ed.2d “Where chase,” “goose than a of a more two-hour en- police exigency not create did 758, during police obtained id. at threatening to gaging engage or conduct leading information them to believe there Amendment, Fourth war- that violates the rid was a risk the defendants would them- entry prevent rantless the destruction context, the heroin. Viewed selves of thus al- of evidence is reasonable and closing on the police Cruz’s act of the door lowed.” Id. certainty. this risk a near transformed into violate, Here did not police officers itself, a By closing police door on officers violate, Amend- nor threaten to the Fourth belief provide not reasonable exi- knocking ment on the door. The before But it is gent circumstances exist. entire- attempt to enter the room officers’ ly to consider the proper for the desk keycard with obtained from totality within cir- closing door was, worst, Fourth See, clerk e.g., States v. de cumstances. (7th Cir.1989) violation. The officers’ failed Soto, Amendment entry immaterial it did attempt because holding (finding indi- exigency. The record justi- create the threat of destruction of not hear move- apartment of an cates the officers did fied a warrantless after the offi- to a ment inside the hotel room occupant responded when the entry attempt. And keycard cers’ failed knock and identification “at- officer shows the the fact answered the door to slam door Cruz tempt[ing] [the keycard entry botched had no effect on
events inside the room. *13 light King,
In officers’ sub-
jective intent bearing upon has no our at-,
decision. See id.
(rejecting a test that asked whether
officers created circumstances in a faith attempt having
bad to avoid to get a subjective
warrant because the nature of
such a test typical inconsistent with
Fourth jurisprudence). Amendment Be-
cause the officers did not create the exi-
gency by committing threatening or violation,
commit a Fourth Amendment
exigent-circumstances exception ap- should
ply in this case. highly
A experienced magistrate judge judge,
and district as well as this circuit
judge, perceive did not a constitutional
violation here. I wonder how offi-
cers on the firing line can distinguish the legal
fine lines we draw today. here I
would affirm the district court’s denial of suppress
Ramirez’s motion to the heroin
found in the hotel room.
George BALLATO, Plaintiff-Appellant, CORP., Defendant-Appellee.
COMCAST
No. 11-2744.
United States Appeals, Court of
Eighth Circuit.
Submitted: March 2012.
Filed: April