U.S. v. Clement

• Decision Date: 25 August 1988
• Docket Number: No. 87-2651,87-2651
• Citation: 854 F.2d 1116
• Parties: UNITED STATES of America, Appellee, v. Kenneth CLEMENT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1116

854 F.2d 1116

57 USLW 2179

UNITED STATES of America, Appellee, v. Kenneth CLEMENT, Appellant.

No. 87-2651.

United States Court of Appeals Eighth Circuit.

Submitted May 13, 1988.

Decided Aug. 25, 1988.

George F. Taseff, Bloomington, Ill., for appellant.

Debra Herzog, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before BEAM, Circuit Judge, BRIGHT and SNEED, ^* Senior Circuit Judges.

PER CURIAM.

Kenneth Clement appeals his conviction for conspiracy to distribute cocaine, possession with intent to distribute cocaine, distribution of cocaine, and possession of a firearm by a convicted felon. He argues that the evidence on which his conviction was based should have been suppressed because it was obtained through government agents' warrantless and nonconsensual forced entry of his hotel room. We affirm.

I. FACTS AND PROCEEDINGS BELOW

The government and Clement substantially agree as to the facts of the case. They differ, however, as to the legal relevance of those facts. On February 6 and February 23, 1987, undercover Drug Enforcement Agency (DEA) agents made cocaine purchases from Sam Stephenson and William McDade. The agents subsequently negotiated with Stephenson and McDade to purchase five kilograms of cocaine in St. Louis, Missouri, on February 27, 1987.

Around 11:00 a.m. on February 27, 1987 two of the agents met with Stephenson in his hotel room, room 512, at the Airport Holiday Inn in Bridgeton, Missouri. Stephenson told the agents that men named Kenneth and Juan would be bringing the cocaine to St. Louis on a flight from Miami later that day. During the meeting Stephenson called Kenneth in Miami and one of the agents spoke to him. Kenneth told the agent that he and Juan were having trouble obtaining the full five kilograms. The agent told Kenneth to bring what he had on the flight that day. After meeting was over, the agents discovered that Stephenson and McDade had moved to rooms 312 and 314 of the Holiday Inn. The agents set up surveillance in nearby rooms.

Later that night, at 10:55 p.m., DEA agents stationed at the airport observed Kenneth Clement, his wife, and a man later identified as Juan Sastre arrive on a flight from Miami. After claiming their baggage, they proceeded to the Holiday Inn and checked into room 306.

At 12:15 a.m., Stephenson and McDade were seen entering and then leaving room 306. Stephenson and McDade then drove to the Marriott hotel and entered room 3057. They were arrested there at 12:30 a.m. after attempting to sell two kilograms of cocaine to the undercover agents.

The DEA agents then returned to the Holiday Inn and went to room 306 at 1:15 a.m. Apparently anticipating a forced entry, they had a sledgehammer in their possession that they had brought to the hotel at 11:30 a.m. the previous day. They did not have a warrant to arrest anyone or to search the room. Agent Luss knocked on the door of room 306, announced that they were federal drug enforcement agents, and demanded entry. He then looked through the peephole on the outside of the closed door. He later testified as follows about the ensuing events:

Q. Who came to the door?

A. I don't know who came to the door. Someone looked out of the door and darted from the door. And there was some noise, some scrambling around in there, at which time we forced open the door.

* * *

Q. And what was it you observed?

A. Well, I observed an eyeball peek through the door and some noise take place then. That's all.

Q. Would you explain how that happened?

A. ... A subject came to the door; peeped through the peephole; and started running; left the door. I don't know if he ran. And I heard some noise in the room. At that point we force open the door with the use of a sledgehammer.

Transcript of Pretrial Motions Hearing Before U.S. Magistrate (M.T.) at 11, 26-27. After the forced entry, the agents arrested Clement and his wife and seized handguns registered to Clement, cocaine, scales, money, and a plane ticket in the name of Juan Suarez. Agent Luss looked out the sliding glass doors and saw a box lying on the ground below the room. The box contained cocaine. Juan Sastre, who apparently had fled through the sliding glass door, was later found hiding in another room in the hotel.

A suppression hearing was held in front of a United States Magistrate. At this hearing, Clement called Joan Lodl, a security investigator to testify about conditions at the hotel where Clement had been arrested. She testified that from outside the room looking through the peephole she was unable to make out a person "in any distinguishable form." M.T. at 36. On cross-examination, she admitted that in the period between the arrest and her investigation that the room had been remodeled and the peephole replaced with another.

On May 28, 1987, the United States Magistrate recommended that Clement's motion for suppression of evidence and statements be denied. The district court adopted the Magistrate's recommendation and denied Clement's motion to suppress.

On August 5, 1987, Clement waived his right to trial by jury and the parties agreed to submit the case to the district court on a written stipulation of the government's evidence. On October 23, 1987, the district court found Clement guilty of conspiracy to distribute cocaine, 21 U.S.C. Secs. 841(a)(1) and 846, possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1), distribution of cocaine, 21 U.S.C. Sec. 841(a)(1), and possession of a firearm shipped or transported in interstate commerce by a convicted felon, 18 U.S.C. Sec. 922(g)(1). On November 30, 1987, the district court sentenced Clement to nine years in prison on each of the drug counts and five years on the weapons count, the sentences to run concurrently. This appeal was timely filed per Fed.R.App.P. 4(b) on December 7, 1987.

II. JURISDICTION

The jurisdiction of the district court was founded upon 18 U.S.C Sec. 3231. This court's jurisdiction rests upon 28 U.S.C. Sec. 1291.

III. STANDARD OF REVIEW

We review denial of motions to suppress evidence obtained in warrantless searches by a claim of exigent circumstances under the clearly erroneous standard. United States v. Knobeloch, 746 F.2d 1366, 1367 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Wentz, 686 F.2d 653, 657 (8th Cir.1982).

IV. DISCUSSION

Under Payton v. New York, 445 U.S. 573, 576, 590, 100 S.Ct. 1371, 1374, 1382, 63 L.Ed.2d 639 (1980), in addition to having probable cause, police must obtain a warrant before making a felony arrest in the home of a suspect unless there are exigent circumstances. We have noted in the past that "the protections against warrantless intrusions into the home in Payton v. New York apply with equal force to a properly rented hotel room during the rental period." United States v. Rambo, 789 F.2d 1289, 1295 (8th Cir.1986) (citation omitted); see United States v. Morales, 737 F.2d 761, 764-65 (8th Cir.1984).

Exigent circumstances may provide a basis for a warrantless entry. However, the exigent circumstances exception to the warrant requirement is narrowly drawn. See Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). It is not necessary to obtain a warrant if lives are threatened, a suspect's escape is imminent, or evidence is about to be destroyed. Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978); Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967); Ker v. California, 374 U.S. 23, 42, 83 S.Ct. 1623, 1634, 10 L.Ed.2d 726 (1963). But in Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097-98, 80 L.Ed.2d 732 (1984), the Supreme Court stated that "the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." And in United States v. Selberg, 630 F.2d 1292, 1295 (8th Cir.1980), we said "the burden is on the state to show the entry is within the exception, and an objective standard is used to evaluate the reasonableness of the officer's belief that exigent circumstances existed."

The government here argues that the DEA agents' fear that the evidence was in danger of destruction constitutes the necessary basis for the warrantless entry. It relies primarily upon our decision in United States v. Knobeloch, 746 F.2d 1366 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985), the facts of which are quite similar to those before us. There, as here, the officers were confronted with the likelihood that the defendant, upon becoming aware that a deal had gone sour, would destroy the evidence. We have held that "[t]he presence of evidence reasonably believed to be in imminent danger of removal or destruction is well recognized as a circumstance which may permit immediate police action." United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir.1978); see United States v. Wentz, 686 F.2d 653, 657 (8th Cir.1982). While it is true that police officers must "demonstrate a sufficient basis for an officer to believe that somebody in the residence will likely destroy evidence," United States v. Beck, 662 F.2d 527, 530 (8th Cir.1981), they need not, however, wait until the evidence is in the process of being destroyed before entering the residence. United States v. Blake, 484 F.2d 50, 55 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974). In sum, the circumstances that are "exigent" in a case such as this are those which, when viewed objectively, are both inconsistent with lawful behavior and reasonably threaten the imminent destruction of evidence.

The question before us is whether the necessary exigent circumstances existed that validate the officers' forcible entry into Clement's hotel room without a warrant. The district court here agreed with the magistrate's conclusion that exigent circumstances were present because the agents "reasonably inferred" that...