United States v. Rhiger

windfall, say cannot award of a grossly abused its discretion finding convincing no clear and miscar-

riage justice. litigant When tying

knocked out after both its hands back, may properly its a court

behind re- litigant’s plea given

fuse to heed the to be fight.

a second chance for a fair judgment

We AFFIRM the of the dis-

trict court. America,

UNITED STATES of

Plaintiff-Appellee, RHIGER, Dean

Joel Defendant-

Appellant.

No. 01-2246. Appeals, States Court of

Tenth Circuit.

Jan. residence, lab,

down the secured the a warrant so steps took to obtain a further search of the could conduct building. Rhiger, and Mr. Brown Gonzales, were indicted for the Assistant Feder-

Benjamin A. NM, Defender, Albuquerque, arising for out of the evidence obtained crimes al Public Defendant-Appellant. Rhiger’s in the of the home. Mr. search jury and a pled guilty, two co-defendants Williams, United N. Assistant David Rhiger Mr. on all counts. convicted (David Attorney Iglesias, C. States brief), on the Attorney, with him States Rhiger challenges Mr. appeal, On NM, Plaintiff-Appellee. for Albuquerque, denial of his motion to district court’s by agents suppress evidence obtained SEYMOUR, and BALDOCK Before of Mr. during the warrantless search BRISCOE, Judges. Circuit He asserts the district Brown’s home. cir- finding SEYMOUR, court erred Judge. Circuit agents’ entry of cumstances his conviction for Rhiger appeals Joel Rhiger Mr. also the Brown residence. methamphet- manufacture conspiring to per- the district court erred contends §‘ and of 21 U.S.C. amine violation testify re- mitting government agent in- methamphetamine with possessing of metham- garding agent’s detection in violation of U.S.C. tent to distribute Rhiger’s clothing. on Mr. phetamine odors 841(a)(1). affirm. § We II I matter, arrest, govern an initial Mr. federal As Prior driving him Carl drug agents Rhiger observed that Mr. has no ment contends companion to several Baker and another of Mr. standing object to the search Baker and the com- where Mr. locations decide house. must therefore Brown’s We manufac- bought materials used to panion Rhiger’s individual constitu Mr. whether Agents also methamphetamine. ture by rights tional were affected earlier, than a Mr. learned that less week Rubio-Riv actions. See United ingredients used to purchased had Cir.1990). era, agents then methamphetamine. The make in the context of “To so demonstrate Mr. Baker to the Rhiger and tracked Mr. search, that he must show the defendant Brown, they ob- Randy privacy in subjective expectation of had a two men the residence served the society is and that premises searched purchased materials. After with the expectation as recognize that prepared to hour, for an the federal watching the home Higgins, reasonable.” United cooking the smell of meth- agents detected Cir.2002) (inter active metham- Fearing an amphetamine. review de quotation We nal residence and phetamine lab was Rhiger’s expectation novo whether Mr. agents entered the explode, could one premises privacy in the searched They found an home without a warrant. Id. reasonable. society would consider immediately ar- garage, in the active lab permanently Mr. While Rhi- and arrested rested Brown, he testified he reside with finding hiding him in the shower ger after two weeks for about shut Mr. Brown known in the master bathroom. than latter. privacy premises in the resi- overnight at Brown’s stayed and times,” rec., Carter, 90, 119 469. vol. V 525 U.S. couple, three dence “a he was id. at when tops,” “four reading majority’s distinction Our that he drive too intoxicated guests is social and commercial between “hit it off’ Brown because and Mr. concurring opinions buttressed work, in maintenance id. common interest themes Kennedy Breyer Justices Paul Dres- neighbor, Brown’s at 239. Mr. Ginsburg’s dissent. Justice Ken- Justice days sendorfer, that for several testified joined majority’s opinion because nedy Khiger’s leave” car] saw [Mr. he “never reasoning [his] was “consistent with its Id., vol. IV at house. Mr. Brown’s guests all social have a view that almost found in were Receipts left expectation privacy, legitimate Moreover, Mr. Rhi- the Brown residence. protection against hence unreasonable day the federal that on the ger testified 99, searches, Id. at in their host’s home.” Brown he had the agents searched J., (Kennedy, concurring). 469 119 S.Ct. in Brown’s absence the house Mr. entered guests could bene- Describing which social Brown’s bedroom to and retired to Mr. protection, Kennedy Justice fit from such question The is thus whether nap. take a must establish have a guests noted guest a standing has as social connection” to the residence. “meaningful government’s search of challenge to the 101, He further Id. at 119 S.Ct. 469. Mr. Brown’s home. urged partial support of Justice Gins- guided is the Su Our decision expecta- burg’s dissent “that reasonable reasoning in Minnesota v. preme Court’s ... ... [should be] tions of the owner Carter, 469, 83, 142 119 S.Ct. 525 U.S. shared, extent, by guest. some This (1998). Although the L.Ed.2d Court 373 that, rule, analysis suggests general as a the issue we specifically decide guests expectation will have an social face, reading opinion per a close 102, host’s home.” Id. at privacy guest’s expectation us that a social suades Ginsburg’s asser- 119 S.Ct. Justice constitutionally privacy protected. any type of should be able guest tion that majority in Carter ruled that an against unrea- to “share his host’s shelter expectation possess individual does not an seizures,” 106, at sonable searches and id. privacy challenge search of anoth J., (Ginsburg, dissenting), 119 S.Ct. 469 present property er’s when he or she is support additional from Justice received solely reasons. for commercial or business joined majority’s Breyer. While he But drew a clear distinction Court opinion grounds, on other he nonetheless present between the status of individuals stated, Ginsburg “I agree with Justice purposes at a residence for social respondents can claim the Fourth Amend- or present those for business commercial 103, protection.” ment’s Id. at 119 S.Ct. 90-91, Id. at 119 469. Re matters. S.Ct. J., (Breyer, concurring). 469 Olson, 91, ferring to Minnesota v. 495 U.S. guest that a social Our determination 96-97, 1684, L.Ed.2d 85 110 S.Ct. 109 expectation privacy has sufficient (1990) (overnight guests possess expec an challenge unreasonable searches his privacy premises), tation of searched further bolstered host’s home is pointedly contrasted the status of Court Court’s reference Carter Jones v. guest “degree acceptance who has a States, 257, 725, 4 362 U.S. 80 S.Ct. guest present from a the household” (1960). acknowl- reasons, L.Ed.2d 697 The Court “purely noting commercial” specific ruling ‘anyone “that possessed greater expectation edged a far Jones’ former an on- that Mr. a determination premises on legitimately meaningful connection to legality’ going its may challenge search occurs There- guest. v. Illi- as a social repudiated in Rakas Brown’s home expressly challenge nois, fore, standing 99 S.Ct. has 439 U.S. (1978).” Carter, at 525 U.S. search and seizure of government’s L.Ed.2d 387 Jones, 362 U.S. 89-90, (citing 119 S.Ct. the Brown residence. evidence from 725). Nonetheless, 267, 80 S.Ct. at Ill conclu- ultimate with Jones’ agreed

Court be- apartment the search of sion that ex Rhiger’s legitimate Given friend, where to the defendant’s longing resi privacy the Brown pectation night,” “maybe a slept there the defendant dence, address whether kept Jones, at 80 S.Ct. U.S. motion properly denied there, at his and entered clothing some on its determi suppress evidence based Fourth will, defendant’s violated the own circumstances nation that Carter, 525 U.S. rights. Amendment into the Rakas, 439 89-90, also 469. See reviewing the district Brown home. (“We think 99 S.Ct. U.S. fac ruling, we examine the “court’s court’s merely stands for the its facts Jones findings clearly under the erroneous tual person that a proposition unremarkable light the evidence in the standard and view interest a legally a sufficient can have find to the district court’s most favorable that the than own home so place other his question regarding ultimate ings. The him from un- protects Fourth Amendment question a of the search is reasonableness into that intrusion government reasonable we review de novo.” United of law which Olson, 97-98, 110 495 U.S. at place.”); (10th Parra, 1058, 2 1063 v. F.3d (noting approving Court’s 1684 omitted). Cir.1993) (internal citation factual in Rakas of Jones’ reaffirmation standard, conclude the on this Based holding). Rhiger’s properly denied specifically the Court While suppress. motion guest can that a social decide Carter Fourth ‘principle a “It is basic of his host’s a warrantless search challenge and sei law5 that searches Amendment decision, home, majority coupled with a warrant are a home without zures inside Kennedy and the concurrences Justices Payton v. unreasonable.” presumptively dissent of Justice Gins Breyer, and the York, 573, 586, 100 S.Ct. 445 U.S. New a that Mr. had persuade us burg, (1980) 1371, (citing Cool 63 L.Ed.2d 639 as a so expectation privacy legitimate 443, 403 U.S. idge Hampshire, New v. also in Mr. Brown’s home. See guest cial 2022, 477-78, 29 L.Ed.2d 564 91 S.Ct. Pollard, 643, 215 F.3d States v. United (1971)). apply equally “In terms Cir.2000) (defendant (6th had rea 647-48 property and to seizures seizures of privacy premises expectation of sonable has Fourth Amendment persons, homeowner, friendship with where he to the a firm line at the entrance drawn residence, kept occasionally spent night at circumstances, that house. Absent there, and was personal belongings some reasonably crossed may not threshold while owners to be permitted 590, 100 S.Ct. a warrant.” Id. without absent). pres regular were Anderson, v. also United States 1371. See stays, overnight at the his ence (10th Cir.1992); 1560, 1567 Unit F.2d house, 981 receipts in the discovery of his 1268, 1271 836 F.2d Aquino, v. ed States unan the residence his comfort Cir.1988). (10th our nap, support all taking nounced 1288 Cuaron, 582, F.2d v. 700 586 exigent cir- United States maintains Cir.1983) v. (quoting United States the federal existed because cumstances (10th Cir.1979)). Erb, F.2d 419 596 meth- reasonably an active believed

agents determined the We have Brown home in the amphetamine lab circum- aspects “exigent basic explosion to its inhabit- a threat of posed (1) the law exception are stances” scene, ants, present at the must have reason- enforcement officers in Mr. Brown’s residents and to the other grounds to believe that there able pub- Threats neighborhood. immediate their lives need to immediate accepted as one of the widely lic are or that of property or others or their exceptions to the exigent circumstances others, must not be mo- the search require- Amendment’s warrant Fourth by an intent to arrest and seize tivated Hayden, v. 387 U.S. ment. See Warden evidence, there must be some 294, 298-99, L.Ed.2d 782 87 S.Ct. 18 basis, approaching probable reasonable (1967) (“The Fourth Amendment does not cause, emergency with to associate delay in the require police officers place the area or to be searched. investigation if to do so would course of an Wicks, (quoting 995 F.2d 970 lives or the gravely endanger their lives Smith, Walsh, others.”); v. United States Anderson, Cir.1986)); 981 F.2d at 1567. (8th Cir.2002) (danger asso- Nevertheless, “there is no absolute test suspected methamphetamine ciated with circumstances, presence for the by po- warrantless search lab sanctioned ultimately because such determination Wicks, officers); lice depends upon unique facts of each (10th Cir.1993) (agents may (in- Wicks, F.2d at 970 controversy.” “if be- conduct warrantless searches quotation and citations ternal the lives of lieve that their own lives or very ruling from the In a short risk”); v. Wil- others are at evidentiary hearing, bench after an the (9th Cir.1989) son, 216-17 knowledge court found the officers’ (officer’s methamphetamine lab would fear iodine, phosphorus, ice and cotton that entry explode justified warrantless defendants, purchased by balls had been home); Spinelli, United States v. cf. strong of metham coupled with the odor (2nd Cir.1988) (officer’s 29-30 phetamine cooking, the officers’ nature of meth- regarding concern volatile danger public that there was a belief amphetamine justified comply failure to amounting to circumstances. Re statute). with knock-and-announce of the factors viewing light the record Wicks, agree exigent the bur circum The bears cited agents’ war justifying stances existed the establishing exigency. In our as den rantless into the residence. the burden is satis sessment of whether fied, guided by “we are the realities of the in- government presented The evidence presented situation the record.” dicating agents the federal had reasonable (internal Wicks, quotations 995 F.2d at 970 grounds to believe there was an immediate cir should ‘evaluate the “We and the need to themselves they appeared potential explosion cumstances as would have of the meth- from the ” in Mr. Brown’s home.1 amphetamine cautious and officers.’ lab prudent, to trained disagree when "law enforcement officers ... 1. We with the dissent's assertion that arises government's reliance on the grounds that there have reasonable to believe unconvincing. exception exception is This Mallory to operation agents Agent radioed When Mallory,2who oversaw Agent arrest, smell, joined he testified had detected the resulting in Mr. methamphet- from heat where he “was over- generated them their location very intense production “can be methamphetamine amine the odor of come rec., fires,” Ill at vol. can cause manufactured, [and] being emitting from the vapors the manufacture and that from northwest,” of Mr. the direction Brown’s very, very flamma- methamphetamine “are in relation to surveillance can quantities pro- in large ... [and] ble During position. Id. at 33. the next half- causing danger explosion, a large duce hour, Agent steps took estab- Id. at 38. surrounding public.” from coming the odor was not lish immediately colleagues Ms rea- mobile home next Mallory and Agent methamphetamine was sonably agents ques- were stationed. After believed produced in the Brown residence being tioning the mobile the resident of Rhiger Mr. based their surveillance search of its inte- performing consensual of Mr. Brown’s observation and their rior, illegal drug no determining and activi- of the Brown Prior home. there, occurring Agent Mallory ty be- was residence, had agents spent the federal he “had circumstances that lieved the activities of Mr. tracking hours several manufacturing process metham- [of time, During was RMger. phetamine] occurring” in the Brown was companions, Christo- with two observed residence, that for the pur- id. and pur- and who pher Dunlap it poses public safety, necessary materials used chemicals and other chased down, building, shut the lab enter methamphetamine. production in the id. at addition, agents confirmed that six objec- these Evaluating facts under earlier, purchased days “prudent, of a cautious and tive standard iodine, produce ingredient also used officer, Cuaron, F.2d at trained” leaving After methamphetamine. regard- government’s we hold the location, Dunlap at another purchase Rhiger and Mr. Brown’s ing Mr. Mr. Brown’s home Mr. Baker drove to possession of materials used manu- building. then entered strong methamphetamine, the odor facture of the home and surveillance established emitting cooMng the manufacture of evidence of watched for residence, Agent the Brown and Mal- from hour, methamphetamine. After about danger- lory’s knowledge the inherent stationed to the south of agents lab, methamphetamine of an active ousness very strong of “a odor became aware grounds that reasonable exist- establishes manufactured,” methamphetamine being agents there was an ed for to believe from the they coming was which believed at 64. immediate need Brown Id. residence. Force, Drug Task protect their or Enforcement an immediate need to lives ...Wicks, (emphasis primarily others for the Clandestine Lab- he worked added). Mr. Brown’s home was rela- That oratory He had received over 200 Team. tively homes in his isolated from the other regarding the manufac- hours instruction consequence. neighborhood is of little investiga- methamphetamine, and the ture officers, along investigating with Mr. methamphetamine dismantling and tion injured if the and Mr. could have been directly Agent Mallory also had been labs. exploded. lab cleanup investigation of at involved in the and methamphetamine labs. least Mallory Agent local sheriff's worked

2. assigned department and to the United discontinuing the home and premises re-enter the a full conduct production.3 thorough lab’s search. agents is also no evidence the Finally, agents

There “reasonable basis, cause, entered the home with an intent to arrest approaching probable to as- Rather, evidence. seize as discussed sociate an emergency with the area or above, they place Smith, were motivated out of a con- to be searched.” public safety. Agent Mallory cern for tes- at 840. The observations of Mr. very tified “it’s hazardous environment. colleagues and his purchasing ma- explosive. poisonous It’s gases There are produce terials used to methamphet- Id., coming amine, off.” vol. at 215. IV There- strong detection of the odor fore, in, get “we needed to and we cooking methamphetamine,4 needed and their thing public safety.” to shut this down for awareness of potential explosiveness Id., Agent vol. Ill at 35. Mallory lab, further of an methamphetamine active estab- upon entering testified that the Brown res- lish that more than enough evidence ex- discovering idence and an active lab in ists for agents us to conclude the had a production, thing basis, first ... cause, “[t]he did reasonable if probable not was we removed the heat.... That was associate an emergency place with the very necessary. We did not want Consequently, searched. their war- reaction to any cause volatile entry reactions. rantless justi- of the residence was Walsh, So we wanted to remove get the heat and fied. See (strong Id., shut off ether, [the lab] and cooled down.” smell of evidence of laboratory Only vol. IV at 134. agents after the equipment produce used to methamphet- defendants, heat, amine, detained turned off the residue suggesting on-going pro- warrant, and obtained a search did duction of drug, police concerns gap Agent Mallory's The half-hour between 4. Mr. contends the "district court methamphetamine detection of the smell and finding erred in that the odor associated with entry of the home does not dissuade us from methamphetamine the manufacture of satis- "prudent, our conclusion that a cautious and government's fied the proving burden of officer, Cuaron, trained” 700 F.2d at exigency justify sufficient existed to the war- would have determined a threat rantless Aplt. of Mr. Brown's home.” existed and warrantless into the brief at 18. While the district court did note justified. objectively, home was Viewed plain "a view rule "plain for odors” or a provides ample record regarding law, rec., smell developing rule” was in the lab, volatility inherent of a vol. Ill at it did not conclude agent’s and of the reasonable belief of its solely existence in the circumstances existed Agent Brown residence. That because the waited half an hour to enter the resi- cooking detected the smell of metham- objective dence does not undermine the evi- Rather, phetamine. the district court listed cooking methamphetamine dence that is an (only several factors one of which was the exceptionally dangerous process. cooking drugs) smell of whose collective force Similarly, reject we the dissent's contention exigency. established Id. Case law establishes that the officers had "sufficient information odor, facts, coupled that with other relevant adequate and opportunity to seek a search support exigency argument. can an See Unit- prior warrant to the residence.” 1256, (10th Scroger, ed States v. 98 F.3d 1259 required The time to obtain the search war- Cir.1996); Erb, 412, United States v. 596 F.2d officers, may rant exposed have Mr. Rhi- (10th Cir.1979). 415 See also United States v. ger and danger of the lab's Walsh, 729, (8th Cir.2002); 299 F.3d 734 potential explosion period longer for a even Wilson, United States v. 865 F.2d 216-17 than the half-hour between the detec- (9th Cir.1989); Brock, tion of the United cooking methamphet- smell of 667 entry (9th Cir.1982). amine and their into the home. 1318

1291 explosion present, regarding danger offered of or might be active heat source that volatility methamphetamine). of permit- exigent circumstances established preceding analysis, structure without ting officer to enter Based on the con- the federal had “reasonable clude Wilson, warrant); at 216-17 865 F.2d to believe that there imme- grounds [was] fumes, activity (strong of chemical smell protect” public, to diate need lab, and suspected methamphetamine was not an intent to search “motivated space spilling out of same liquid ether evidence,” and there was a arrest seize regarding fears officer’s substantiated basis, probable approaching “reasonable into entry his warranted cause, emergency with” the associate an (po- at 29-30 Spinelli, 848 F.2d garage); Smith, at 797 F.2d Brown residence. of nature of meth- knowledge lice volatile correctly court determined The district amphetamine, and fear that defendant exigent justified the that circumstances by causing try destroy would entry agents’ warrantless Brown’s lab, properly Rhiger’s cir- denied Mr. explosion established to suppress motion evidence. Brock, cumstances); at 667 F.2d 1314-15 (smell cooking methamphetamine and of IV choking of defendant officer’s observation Finally, maintains the po- supported fumes officer’s fears of on permitting Agent district court erred explosion and warrantless tential testify he detected the odor home); Erb, into mobile methamphetamine cloth (strong emitting at 417-18 smell ether arresting ing him. Because Rhi when hours, house for over six reliable from object Agent failed trial to Mallo ger informant, fear tips from and officer’s ry’s testimony, we review this issue under try might destroy evi- that defendant v. plain error standard. See Johnson States, methamphetamine that lab dence and S.Ct. 520 U.S. United (1997). 1544, 137L.Ed.2d 718 danger public, established could cause allowing exigent circumstances warrant- Johnson, Supreme Court dwelling). But see less required elements under the outlined the Warner, v. 843 F.2d plain error test. Cir.1988) (officer’s potential knowledge appellate an court can correct [B]efore chemicals, trial, but not there must explosive nature of stored an error raised (3) (1) error, plain, that is of an immediate emer- perception lack rights. If all three substantial affect[s] entry of gency, justify met, appellate conditions are v. unoccupied garage); United States may its to notice then exercise discretion Cir.1987) Bonitz, 954, 957 error, only if the error a forfeited but (officer’s regarding alleged explosive fears fairness, seriously integrity, affect[s] gun powder and nature of undisturbed judicial reputation proceed- or sufficiently supported ammunition was not ings. circum- record to establish Johnson, 466-67, 117 520 U.S. at Jackson, stances); (internal (alterations original) quo- (D.Kan.2002) (de- F.Supp.2d if Mr. tations and citations Even strong officer’s chemical spite detection satisfy first three Rhiger were to suspicion that odor and test, fails to he establish prongs residence, govern- being produced “seriously any affect[ed] such error prove existence of fairness, ment failed integrity, public reputation of or 467, judicial proceedings.”5 Id. testimony no was [his] circumstances because methamphet- accepted expert witness in the field of Agent as 5. The district court 1292 government and, present- suppress result,

117 1544. The as a I would reverse enough jury ed more than evidence for a the conviction and remand for new trial. Rhiger guilty to determine Mr. was accurately As noted majority, him, charges against and the absence of pre- warrantless into a residence is Agent Mallory’s testimony regarding the sumptively unreasonable under the Fourth Rhiger’s smell of Mr. clothes would not York, Payton Amendment. v. New have altered that result. The evidence 573, 586, 1371, U.S. 100 S.Ct. 63 L.Ed.2d Rhiger purchased showed that Mr. materi- (1980). A entry may warrantless produce als used methamphetamine. however, justified, where officers believe He companions aided his in purchasing their own lives or the lives of others are at materials for drug. the manufacture of the Wicks, risk. United States v. 995 F.2d He entered a home which there was an (10th Cir.1993). the exi- Where active Finally, lab. he gent circumstance protection claimed is was hiding found a shower in a back public, (1) requirements are that bedroom of the home when the law enforcement officers must have rea- building entered the to shut down the lab. sonable grounds to believe there is an “On this record there is no basis for con- immediate need to or cluding seriously that the error affect[ed] public’s property; the search must fairness, integrity, public reputation or not be motivated an intent to arrest and Rhiger’s] judicial [Mr. proceedings.” evidence; seize there must be (internal Id. at 117 S.Ct. 1544 quota- basis, some reasonable approaching proba- tion The district court did not cause, ble to associate an emergency with plain commit error. place the area or to be searched. United judgment The of the district court is Smith, States v. 797 F.2d AFFIRMED. Cir.1986). BRISCOE, Judge, Circuit concurring burden is on the dissenting. Wicks, exigency. show 995 F.2d at 970. In assessing whether this burden has been agree I majority’s with the conclusion met, the court evaluates the circumstances Rhiger has standing to contest the they as would appeared prudent, have officers’ entry into the residence. Howev- cautious, and trained er, officers. I disagree that exigent circumstances Scroger, excused the officers’ entry. Cir.1996). reviewing

Since into the of a residence was not denial supported by suppress, either a motion to accepts warrant or this court as circumstances, I would conclude true the the dis- trial court’s findings of fact unless trict court in denying erred erroneous, the motion clearly are but the ulti- production amine investigation and the of ille- district court should have jury informed the Rec., gal information, laboratories. vol. IV at 114. It as such. Without such Mr. Rhi- appears contends, Agent ger believes that if Mal- jury may have inappropri- lory offering expert testimony were regarding ately heightened attributed credibility to Rhiger’s the smell on clothing, Agent Mallory's the district statement and used his testi- court Agent Mallory's should have vetted mony as finding its sole basis for opinion hearing in a pursuant present to Daubert v. garage in of Mr. Brown's Pharmaceuticals, Inc.,

Merrell Dow establishing U.S. thus guilt. his We need 579, 592-95, 113 S.Ct. 125 L.Ed.2d 469 not reach the merits of Mr. claims. (1993). Conversely, .Agent Mallory if were Even if his assertions showed the district offering lay testimony regarding erred, plainly smell on prove he req- cannot Rhiger's clothing, prejudice. asserts the uisite typical of which have is cases is a Brock of reasonableness mate determination a upheld residence de novo. law that is reviewed of question manufacturing is methamphetaminé Wicks, F.2d at 968-69. protect the suspected public. order to exigent Here, district court found the Cervantes, v. 219 F.3d See States United on two factors: circumstances based Cir.2000) (9th (finding of risk posed by public the danger the the apartment explosion building constitut- methamphetamine; and manufacturing of justifying entry and there emergency ed of prevent destruction the the need exigent was no need for circumstance anal- However, government the did evidence. Wilson, ysis); v. 865 F.2d prevent the destruc- not advance need (9th Cir.1989) (finding exigent 216-17 an circum- exigent evidence as tion danger circumstances existed because regard- presented no evidence stance and explosion methamphetamine lab in resi- Instead, government that ing issue. area); Echegoyen, dential United danger public to the as only advanced Cir.1986) 1278-79 Therefore, entry. although the reason (finding danger ex- prevent destruction of the the need to fire- plosion in remote area with limited might given have the officers evidence fighting justified entry); resources enter, it was not the reason for reason to Erb, States v. 417-18 entry in case. this Cir.1979) (finding danger methamphet- danger Did establish danger manufacture combined with amine public justify the war- to the would presented exi- of destruction of evidence it entry? I conclude did circumstances). rantless would rely in gent These cases deciding safety public not. In the officers’ part explosive nature of the man- upon ' provided However, an circumstance process. concerns ma- ufacturing entry, cases, court justify the district jority sufficient of these there was some actu- Brock, existing danger 1311 al of an cited United (9th Cir.1982). Brock, promptly In and that officers acted surround- dan- suspect- entering the residence to assess the park, a motor home at a state ed Wilson, prevent harm. ger and See methamphetamine. ing the manufacture of (lab in residential F.2d at 216-17 located cooking, agent chemicals An smelled ad- firefighters called to scene area and saw dash out agent another the defendant (res- Brock, entry); 667 F.2d at 1318 vised air, “gasping for as if of the motor home fumes, on leaving choking ident house choking on Id. at 1314. The fumes.” residents with concern for other combined motor and found agents entered the home inside). lab. operating methamphetamine found circumstances case, government’s present (the methamphetamine, the defen- smell of support upon safety to exi- reliance choking fleeing dant motor while convincing. Although gency is much less fumes, knowledge the officers’ of the on nec- Mallory contended Officer making explosiveness “public,” chemicals used it unclear essary to uncertainty seeking as to methamphetamine, protect. whom he was occupants might still be in residence was bounded whether other admitted home) mesa, one supported entry by open for the side the motor on two sides on the other prevent unoccupied garage, an an occupants occupant known side a trailer with its explosion. The Ninth Circuit affirmed if some Even there was to be absent. findings district court’s and conclusions. might public that the would be endan- were not concerned that evidence be evidence fact, by an the explosion, destroyed officers’.conduct it that more gered appears —in Upon exigency. the claim of decid- belies It being manufactured. was evidence was entry necessary to warrantless was ing a a day the of the so war- obtaining middle public, Mallory the and the other a rant would not be as difficult as late- immediately the enter resi- officers night request. dence, key for a but searched so rather argues if The that even the damaging they could enter without the unlawful, entry was the evidence need not Evidently, protection of the front door. suppressed. According govern- protection precedence door took over front ment, pursuant evidence was obtained the public. entry was The itself not warrant, although to a search valid the njinutes thirty approximately until effected entry. warrant issued was after the initial made. after the decision to enter was a search “Although may violate Fourth the a entry into residence While warrantless Amendment, inap- the is exclusionary rule methamphetamine manufacturing is plicable inevitably if the evidence would occurring upheld has been in other cases by have discovered lawful means.” been grounds, in this case the Souza, to danger the was known to be Cir.2000). However, the inevit- minimal and the actions of the' officers in discovery exception apply able not to does attempting key entry a prior find all police probable situations where have any emergency notion there was an belied a warrant get cause for and fail to one. entry. By our requiring immediate con- Rather, question the is that the likelihood cluding entry this was a warrant would have the been issued and circumstances, effectively we are establish- indepen- evidence would have been found ing a rule a warrantless into a dent of the search. Id. at In deter- always justified is residence where meth- mining a whether warrant would have Or, amphetamine being manufactured. independent search, been of issued the way, creating another stated we are (1) following helpful: factors are the extent exception lab process to which the warrant has been requirement.

warrant completed seeking the time those The officers here informa- had sufficient (2) search; warrant learn of the adequate tion and opportunity seek a strength showing probable cause prior warrant search the resi- occurred; time the search Officer Mallory dence. had checked Rhi- ultimately a warrant whether was ob- ger’s purchase criminal record after the tained, illegal entry; after the albeit iodine, grams the 500 but before the law lacked enforcement purchase of 500 grams phosphorous, of red showing probable confidence and learned that or was had been Id. wanted cause and to force the issue. with associated the manufacture of meth- case, this search warrant was not information, amphetamine. This along independently issued resi- with the smell of methamphetamine and Rather, the in support dence. affidavit purchase the earlier of chemicals and re- for the application search warrant was supplies, provided lated with officers part on based in information obtained as a sufficient information to seek warrant. result of the entry. The officers had surrounded the residence inev- discovery was apply and there no indication feared doctrine itable should not might try escape. They the residents if “agents’ decision to seek the warrant they had seen dur- what prompted if entry, or information ob- ing initial presented during that

tained decision to and affected his Magistrate Murray v. United warrant.”

issue the

States, U.S. 108 S.Ct. (1988).

101 L.Ed.2d CLUB, Organizing Southern

SIERRA Economic and Social

Committee for

Justice, Georgia the Peo Coalition for Defense,

ple’s Agenda, Environmental

Petitioners-Appellants, PRO ENVIRONMENTAL

U.S. AGENCY, Re

TECTION

spondent-Appellee. Georgia, Intervenor.

State

No. 02-11188. Appeals, States Court

Eleventh Circuit. 24, 2002.

Dec. Woolf, Environmen-

S.Wesley Southern GA, Center, Atlanta, J. David tal Law Hill, NC, E. Farren, Chapel Robert

Case Details

Case Name: United States v. Rhiger

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 14, 2003

Citation: 315 F.3d 1283

Docket Number: 01-2246

Court Abbreviation: 10th Cir.