U.S. v. Leveringston, 04-1315.

• Citation: 397 F.3d 1112
• Decision Date: 16 February 2005
• Docket Number: No. 04-1315.,04-1315.
• Parties: UNITED STATES of America, Appellee, v. Bobby R. LEVERINGSTON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

397 F.3d 1112

UNITED STATES of America, Appellee, v. Bobby R. LEVERINGSTON, Appellant.

No. 04-1315.

United States Court of Appeals, Eighth Circuit.

Submitted: September 16, 2004.

Filed: February 16, 2005.

Before COLLOTON, HEANEY, and HANSEN, Circuit Judges.

COLLOTON, Circuit Judge.

Bobby R. Leveringston entered a conditional plea of guilty to a charge of possession of crack cocaine with intent to distribute. He reserved the right to appeal the district court's denial of his motion to suppress evidence seized from his hotel suite after his arrest. We agree with the district court that the police had sufficient justification to enter the hotel suite without a warrant, and we therefore affirm the judgment of the district court.¹

I.

On November 17, 2002, Officers Jason Quint and Michael Ward of the Kansas City Police Department responded to reports of suspicious drug activity at the Marriott Residence Inn. The manager of the hotel told the officers that he suspected drug activity had been occurring in Leveringston's suite, because people had been coming to the suite throughout the day and staying only two to three minutes before leaving. The manager told the officers that he was unwilling to tolerate drug activity at his motel, and that he planned to evict Leveringston.

The two officers knocked on the door of the suite. Leveringston opened the curtains, saw the officers, looked surprised, and closed the curtains again. The officers knocked again and heard loud noises coming from inside the suite, including what sounded like dishes breaking, pots and pans slamming, and a garbage disposal and water both running. The officers pounded on the door and called out, "Police. Open the door. Is everything okay?," but received no response. As he continued to knock on the door, Quint called for a second patrol car to assist in forcing entry, if necessary. The officers continued knocking for two or three minutes. Quint then announced, "Open the door or we're going to kick in the door." The loud noises stopped (except for the garbage disposal and running water), and Quint heard what he believed to be a window opening from inside the suite. Quint looked around the corner and saw Leveringston jump from the second-story window of the suite.

Both officers chased Leveringston as he ran through the hotel complex. As they pursued him, Leveringston jumped over a six-foot wrought iron fence surrounding the hotel complex, fell fifteen feet to the ground, and then continued running. A third policeman in a second patrol car arrived on the scene and apprehended Leveringston. After Leveringston was stopped, Officers Quint and Ward returned to their patrol car and drove to where Leveringston was located. A search of Leveringston's person discovered $1,355 in cash and a key card to the hotel suite. Both officers noticed that Leveringston's hand was wounded and that his hand and shirt were covered in blood. Quint called for an ambulance and for a wagon to transport Leveringston to police headquarters. Quint and Ward returned to the hotel after Leveringston was taken from the scene.

Back at the hotel, the officers arranged for the manager to admit them to Leveringston's suite. The officers looked around the living room, bedroom, and bathroom, where they observed blood near a sink, a scale, plastic baggies, a razor blade, and what they believed to be crack cocaine.

Detective Jeanelle Cesena of the Drug Enforcement Unit was then called to the scene, and she obtained a search warrant for the suite approximately two or three hours later. Upon conducting a search pursuant to the warrant, police seized 25.1 grams of cocaine base and 47.31 grams of cocaine from baggies on the floor and from inside the garbage disposal.

Leveringston was charged with possessing with the intent to distribute five grams of more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and possessing with the intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He moved to suppress evidence on the ground that the searches of the hotel suite were conducted in violation of his rights under Fourth Amendment. The district court, adopting a magistrate judge's report and recommendation, denied the motion to suppress. Leveringston then entered a conditional plea of guilty to the first count of the indictment, reserving his right to appeal the denial of his motion to suppress. He was sentenced to 120 months' imprisonment.

II.

Leveringston asserts that the evidence of drug trafficking seized from his hotel suite was obtained in violation of the Fourth Amendment's proscription against unreasonable searches and seizures. The Fourth Amendment generally prohibits entry to a home without a warrant, unless the circumstances meet an established exception to the warrant requirement, such as the presence of exigent circumstances. See Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Leveringston observes that "the protections against warrantless intrusions into the home ... 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), and argues that the warrantless entry into the hotel suite by Officers Quint and Ward was unjustified by exigent circumstances. Although the disputed evidence was seized only after police obtained a warrant to search the suite, Leveringston contends that the initial warrantless entry tainted the seizure.

The government counters that the later-obtained warrant provides a sufficient basis for the disputed seizure, even assuming the initial entry was unlawful, so there is no need to decide whether exigent circumstances justified the warrantless entry. The government's position is premised on the "independent source doctrine," which rests upon the policy that "while the government should not profit from its illegal activity, neither should it be placed in a worse position than it otherwise would have occupied." Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). In this case, the government contends that although the affidavit in support of the search warrant included information gained during the initial entry, the remaining information in the affidavit established probable cause to search the hotel suite. Thus, says the government, the warrant was obtained "independent" of any possible illegality in the initial entry.

We cannot accept the government's position on this point, because it understates the showing required to establish that a search warrant is genuinely independent of an earlier entry. The Supreme Court has explained that a search warrant obtained after an illegal entry is not an independent source of evidence if "the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant." Murray, 487 U.S. at 542, 108 S.Ct. 2529 (footnote omitted). The government's argument in this case is directed only to the second part of that equation: because the affidavit established probable cause to search the suite based on information not obtained during the initial entry, the information obtained during that entry did not affect the magistrate's decision to issue the warrant. See United States v. Packer, 730 F.2d 1151, 1156 (8th Cir.1984); United States v. Williams, 633 F.2d 742, 745 (8th Cir.1980).

Murray makes clear, however, that to employ the independent source doctrine, the government also must establish that the police would have sought a warrant if they had not earlier entered the hotel suite. It is not sufficient, under Murray, for a court of appeals to infer from the circumstances that the police inevitably would have sought a warrant; findings of fact by the district court are required. 487 U.S. at 543, 108 S.Ct. 2529. Here, the district court found that after the initial warrantless entry, "Sergeant Arroyo called Detective Cesena of the Drug Enforcement Unit who arrived on the scene and, based on her observations of the suite, obtained a no-knock search warrant for the suite approximately two or three hours later." (D.R.3) (emphasis added). While this finding does not preclude the possibility that officers other than Detective Cesena would have sought a warrant even if they had been prevented from entering the suite without a warrant, it is not our function to determine the facts, and the district court certainly did not "explicitly find that the agents would have sought a warrant if they had not earlier entered the [hotel suite]." Murray, 487 U.S. at 543, 108 S.Ct. 2529.

When the government seeks to rely on the independent source doctrine in a case involving a later-obtained warrant, it should present specific evidence that the officers were not prompted by allegedly unlawful activity to obtain the warrant, and should seek a finding on that point from the district court. In this case, it turns out, the government never even raised the independent source doctrine in the district court, so it is little wonder that the district court made no pertinent finding.

The government's alternative argument echoes the district court's conclusion that the disputed evidence was admissible because the initial warrantless entry to the hotel suite was justified by exigent circumstances. At the time the officers first knocked and announced their presence at the hotel suite, there is no doubt that the police had both probable cause to investigate and exigent circumstances that would have permitted a warrantless entry. The hotel manager had informed the officers of signs of suspicious drug activity in Leveringston's suite, that is, frequent visitors to the suite who stayed only two or three minutes before leaving. The occupant of the suite reacted to police...