U.S. v. Walsh

• Decision Date: 29 July 2002
• Docket Number: No. 01-3733.,01-3733.
• Citation: 299 F.3d 729
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Michael WALSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

299 F.3d 729

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Michael WALSH, Defendant-Appellant.

No. 01-3733.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2002.

Filed: July 29, 2002.

Nancy R. Price, Asst. Federal Public Defender, argued, Springfield, MO, for appellant.

Randall D. Eggert, Asst. U.S. Attorney, argued, Springfield, MO, for appellee.

Before WOLLMAN, BEAM and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

After police officers seized drug manufacturing equipment and a firearm from his rented quarters, Timothy Michael Walsh was indicted for attempting to manufacture methamphetamine and for being a felon in possession of a firearm. The district court¹ denied his suppression motion, and Walsh entered a conditional guilty plea to the firearm count. He now appeals the district court's suppression motion ruling, arguing that warrantless entries into his bedroom and storage shed tainted the subsequent, more thorough warrant searches. "We examine the factual findings underlying the district court's denial of the motion to suppress for clear error and review de novo the ultimate question of whether the Fourth Amendment has been violated." United States v. Clayton, 210 F.3d 841, 845 (8th Cir.2000). We affirm.

On November 24, 2000, Springfield, Missouri, narcotics investigator Robert McPhail received an anonymous tip that a white male and female were operating a methamphetamine lab at 2815 East Cherry, the home of Lisa Davis. Officers Kevin Cantrell and Chad White were dispatched to investigate, arriving around 7:30 p.m. on a rainy evening. Officer White positioned himself in the driveway near the carport at the rear of the house while Officer Cantrell knocked on a side door. Despite (or perhaps because of) loud noise and music emanating from the house, there was no answer to Cantrell's knock. By apparent coincidence, Thomas Belcher emerged from the back porch and agreed to accompany Cantrell to the front door, where he knocked again. This time, Davis answered and invited Cantrell to come in out of the rain. Walsh joined the group from the rear of the house. There were also four young children in the house, three of Ms. Davis's children and a neighbor's child.

Belcher and Davis identified themselves to Officer Cantrell, and Davis consented to a search of the home, except for a back bedroom and a storage shed off the carport, areas rented by Walsh. Walsh identified himself as his brother, Brian Walsh, and produced a driver's license in that name, but refused to consent to a search of his bedroom or the storage shed. When the dispatcher advised Cantrell of an outstanding arrest warrant for Brian Walsh on drug trafficking charges, Cantrell handcuffed and arrested Walsh. After securing Walsh, Officer Cantrell searched the areas of the house authorized by Davis's consent. He found no evidence of crime but noted a surveillance camera in a bedroom window aimed at the storage shed. He also opened the door to Walsh's bedroom and looked inside, testifying at the suppression hearing that this was done to complete a protective security sweep of the entire house.

Cantrell then exited the house and rejoined Officer White in the carport area. He found trash and empty cans of starter fluid on the back porch, an extension cord running from an outlet by the back door to the storage shed, white residue inside a blender pitcher, two-liter soda bottles (which he described as acid generators), and a strong smell of ether — which he had noticed when he first arrived but which was stronger near the storage shed. At this point, at least one hour after arriving at the house, Officer Cantrell opened the door to the storage shed and used his flashlight to view its contents. Cantrell explained at the suppression hearing:

After seeing those things [outside the shed], knowing what we were here for, what we were checking, the strong odor of ether, I felt that we needed to check this [shed] just to make sure, to see what was in there. At the time I didn't know if another person may have been in there hiding or what the situation was.

* * * * * *

Based on what we had seen and because of the people that were in the area, the people I was dealing with, I was responsible [for], I determined for our safety and theirs, we need to open that door and check inside to see what was in there and that's what we did.... I opened the door and looked inside. I saw another acid generator. This one with a rubber hose coming out the top of it, several starter fluid cans which have been punched and an active, white mist hanging in the air.... I told Officer White that we needed to vacate that area right there and we did. We moved — shut the door, moved back away from it and contacted the dispatcher to let [the Narcotics Enforcement Team] know that we have found what we believed to be an active lab so they could respond.

Having secured the premises, the police arrested Ms. Davis, as the owner of premises on which an active methamphetamine lab had been found, transported Walsh and Davis to the police station for booking removed the children to the custody of the neighbor child's mother, and released Thomas Belcher. Around 11:30 p.m., narcotics investigator McPhail arrived at the scene and was briefed by Officer Cantrell. Officer McPhail opened the door to the shed, looked in, and promptly closed the door. He saw a modified storage tank for ammonia, an acid generator, an open bottle of rock salt, and a white mist in the air. When asked why he looked in the shed, McPhail testified:

Well, I wanted to — there's no point in holding the house for three to five hours if there's not — if the elements of the charge aren't there. I wanted to make sure that there was no heat source that could further complicate the chemical situation.... At the point when I looked in the door, it looked to me like possibly an active meth lab.... Due to the fog in the area, I did not have an APR air mask, so I didn't want to enter any further. I did not see a heat source.... I did not have the proper safety equipment to enter and check.

After spending ten to fifteen minutes at the scene, Officer McPhail left the premises to obtain a search warrant, a process that took about three hours. He returned to the scene around 3:00 a.m. and spent the next few hours executing the search warrant. McPhail found the firearm, ammunition, and other evidence in Walsh's bedroom and equipment for manufacturing methamphetamine in the storage shed and the carport area. Walsh moved to suppress this evidence on the ground that it was seized in a non-consensual search that violated his Fourth Amendment rights as occupant of the bedroom and storage shed.

At the suppression hearing, the defense vigorously cross-examined officers Cantrell and McPhail and presented the testimony of five witnesses, including Davis and Belcher but not Walsh. Conceding the officers had probable cause to obtain a valid search warrant, the defense attacked the officers' testimony as to the time line for their various actions at the Davis/Walsh residence. The point of this defense was to establish that the officers gathered the evidence in a warrantless search before obtaining the warrant and preparing a search warrant return and an inventory of the property they seized.

The district court rejected this defense and denied the motion to suppress. The court expressly credited the testimony of officers Cantrell and McPhail, and it found the defense witnesses not credible. The court found the warrantless protective sweep of Walsh's bedroom was justified because there was no evidence contradicting the officers' testimony "that they looked in the room to ensure that there were no other individuals in the house who might pose a security threat." Finally, the court found that exigent circumstances justified the officers' decision to look in the storage shed before obtaining a search warrant:

The court is convinced that the officers reasonably believed that there was a safety concern that required them to step into the shed for a short period of time to ensure that there was not a methamphetamine lab in operation and to ensure that no one was hiding in the shed. Attempting to obtain a search warrant before securing the premises by way of proper investigative techniques could have resulted in a disastrous outcome. The fact that Officer McPhail did a cursory search of the storage shed after Officer Cantrell had done the same can also be excused under the exigent circumstances exception to the warrant requirement. Officer McPhail had special training with methamphetamine laboratories. Additionally, he testified that he wanted to check to see if there was a heat source for the chemicals that might make the risk of explosion more imminent.... [T]he court finds that officers had adequate probable cause to believe that a methamphetamine laboratory was operating inside the storage shed, and that the government has met its burden of establishing that exigent circumstances existed justifying the warrantless entry. United States v. Vance, 53 F.3d 220, 222 (8th Cir.1995).

On appeal, Walsh first argues that Officer Cantrell's warrantless entry into his bedroom was an unconstitutional search. "[E]xcept in certain carefully defined classes of cases a search of private...