United States v. Zogmaister , 90 F. App'x 325 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 26 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-8005
(D. Wyo.)
DAVID ZOGMAISTER, 02-CR-134-B
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and McWILLIAMS, Circuit Judges.
David Zogmaister appeals the district court’s denial of his motion to
suppress the drugs found by police in his motel room. Zogmaister entered a
conditional guilty plea to a charge of firearm possession in furtherance of drug
trafficking in violation of 18 U.S.C. § 924(c), preserving his right to appeal the
district court’s denial of his motion to suppress. On appeal, we consider whether
the government has met its burden of demonstrating that exigent circumstances
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
justified the warrantless search of Zogmaister’s motel room. We REVERSE.
I
In December 2001, agents with the Wyoming Division of Criminal
Investigation (“DCI”) received information from confidential informants that
Zogmaister had been traveling to Rock Springs, Wyoming for the past several
months to sell methamphetamine. Based on that intelligence, DCI opened a
criminal investigation regarding Zogmaister’s possible drug dealing activities.
On February 5, 2002, a confidential informant told DCI agents that Zogmaister
was staying in Room 219 at the Inn at Rock Springs, that the informant had been
in Room 219 with Zogmaister, and that the room contained methamphetamine,
heroin, and a firearm.
Rather than pursue a warrant at that time, DCI Agent Craig Jackson and
Sweetwater County Deputy Sheriff John Elliot decided to go to the Inn at Rock
Springs; there they observed Zogmaister’s automobile parked in front of the
motel. A “for sale” sign in the automobile’s window listed Zogmaister’s
telephone number, and the officers hatched a plan to lure Zogmaister out of his
room to question him about his suspected drug activity. After a third officer, DCI
Agent Dennis Clamen, arrived at the scene, Agent Jackson called the listed
number, purportedly to inquire about the car; he spoke to a male who said he
would come out to discuss the matter. Minutes later, Nicole Ables, Zogmaister’s
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girlfriend, came out of Room 219 and approached Agent Jackson; he informed her
that he was a police officer, and that he needed to discuss an investigation with
Zogmaister. In response to the officers’ questions, Ables informed them that she
and Zogmaister had been staying in the motel for two days, and that there were no
firearms in the room.
Following the brief questioning of Ables, the officers led her to the motel
room and told her to knock on the door. She did so, announcing that she was with
some detectives who wanted to speak to Zogmaister. Between thirty and forty-
five seconds elapsed, and Zogmaister opened the door, dressed in long underwear.
Ables hurriedly walked through the open door into the room and sat on the bed.
The officers followed her immediately, positioning themselves around the room.
At no point did the officers ask permission to enter the room, nor did Zogmaister
or Ables invite them. Describing their reasons for entering the room, Agent
Jackson explained:
When [Ables] took off across [the room], the fact that the door was
open, we just went ahead and entered. For officer safety reasons you’ve
got to get out of that doorway. That is where the funnel of fire comes.
If somebody starts a firefight as you are entering a room, from years of
tactical experience, you want to get out of that doorway. That’s the
fatal funnel. That’s where officers are killed at. We want to get in.
(3R. at 44–45.)
After entering the room, Agent Jackson asked Zogmaister whether there
were any weapons in the room, and Zogmaister answered affirmatively. Agent
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Jackson retrieved the weapon and asked for permission to conduct a more
thorough search of the room. Zogmaister granted permission, and a search of the
room revealed syringes, a small amount of heroin, 2.25 ounces of
methamphetamine, drug paraphernalia, $3,700 in cash, and two stolen revolvers.
Zogmaister filed a motion to suppress the evidence uncovered in the search of the
motel room, arguing that the search violated his Fourth Amendment right to be
free from unreasonable searches and seizures.
In denying Zogmaister’s motion to suppress on November 22, 2002, the
district court initially based its decision on two conclusions: (1) that Zogmaister
lacked a reasonable expectation of privacy, and thus the Fourth Amendment
provided him no protection; and (2) that even if Zogmaister had a reasonable
expectation of privacy, he consented to the search. On December 13, 2002, the
government requested that the district court provide additional factual findings on
the subject of exigent circumstances. Specifically, the government requested that
the district court find “that Ms. Ables’ unexpected entry into the motel room,
where the agents had reason to believe narcotics and guns were stored, created an
exigent circumstance necessitating the officers warrantless entry into the room to
ensure their safety.” (1R. at 38.) The district court complied with the
government’s request in an order issued the same day, adopting verbatim the
language suggested by the government and thus finding that exigent
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circumstances justified the government’s warrantless search of the motel room.
On appeal, the government concedes that Zogmaister had a reasonable
expectation of privacy in his motel room. We accept the concession. The
government also concedes, and we agree, that the police lacked consent to enter
the motel room. Therefore, the sole contested issue on appeal is whether exigent
circumstances justified the government’s warrantless search of Zogmaister’s
motel room. Because we conclude that the government has not met its burden of
demonstrating that exigent circumstances existed to enter the room, we
REVERSE.
II
In reviewing a denial of a motion to suppress, we are required to “accept
the trial court’s findings of fact unless they are clearly erroneous.” United States
v. Carr, 939 F.2d 1442, 1443 (10th Cir. 1991) (quotation omitted). Moreover,
“[a] trial court’s determinations which rest upon credibility and reasonable
inferences will not be set aside unless clearly erroneous.” Id. at 1448. We view
the evidence in the light most favorable to the government, id. at 1443, but “[t]he
ultimate determination of reasonableness under the Fourth Amendment
. . . is a question of law which we review de novo.” United States v. Ross, 920
F.2d 1530, 1533 (10th Cir. 1990) (quotation omitted).
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A
In support of the government’s concession of the issue, we note that it is
beyond dispute that individuals residing in motel rooms generally have a
reasonable expectation of privacy and thus receive Fourth Amendment protection.
Stoner v. California, 376 U.S. 483, 490 (1964). In nonetheless concluding that
Zogmaister lacked a privacy interest in the motel room in which he had been
staying, the district court relied on Minnesota v. Carter, 525 U.S. 83 (1998). In
that case, the Supreme Court imposed a heightened burden for demonstrating a
reasonable expectation of privacy when the defendant’s presence in the dwelling
was solely for a commercial purpose. Id. at 91; see also United States v. Gordon,
168 F.3d 1222, 1226 (10th Cir. 1999) (applying Carter).
We conclude that Carter is inapplicable to this case. In Carter, the
defendant was in a rented apartment for two and one half hours for the exclusive
purpose of packing cocaine; moreover, the Supreme Court specifically noted that
Carter had not stayed overnight. Carter, 525 U.S. at 90. Thus, Carter provides an
exception to the general expectation of privacy when a defendant’s presence in a
room is solely for commercial purposes; as the government now concedes, 1 that is
1
In its brief, the government states: “A thorough review of the record
indicates that the Defendant was a social guest in the motel room at the time the
agents entered the room, and therefore had a reasonable expectation of privacy in
the room.” (Aplt. Br. at 11.)
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not the case here. To the contrary, the record reflects that Zogmaister had been
residing in the motel room in question for two days. 2
Because it is clear from the record that Zogmaister’s presence in the room
was not purely commercial, we hold that Zogmaister had a reasonable expectation
of privacy under the Fourth Amendment. Having arrived at that conclusion, we
proceed to analyze whether the government has demonstrated the existence of an
exception to overcome the general presumption that warrantless searches are
unreasonable under the Fourth Amendment.
B
A warrantless search is presumptively unreasonable under the Fourth
Amendment unless the government can demonstrate the existence of an exception;
indeed, “the most basic constitutional rule in the search and seizure area is that
exceptions to the warrant requirement must be specifically established, well
delineated, and jealously and carefully drawn.” United States v. Aquino, 836
F.2d 1268, 1270 (10th Cir. 1988) (quotations omitted). Consent represents one
exception to the Fourth Amendment’s warrant requirement. United States v.
Pena-Sarabia, 297 F.3d 983, 986 (10th Cir. 2002). As a result, if Zogmaister or
2
At the motion to suppress hearing, Agent Jackson was asked, “you don’t
dispute that Mr. Zogmaister had been staying in that room for at least a day or
two?” Agent Jackson replied, “[t]hat’s correct. We later substantially verified
that.” (3R. at 34.)
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Ables consented to the officers’ entry into the motel room, no violation would
have occurred.
In addition to finding initially that Zogmaister lacked a reasonable
expectation of privacy, the district court found that Ables consented to the search.
Given the government’s concession that the officers lacked consent to enter the
room, 3 and our review of the record, we are persuaded that the district court erred
on this point. Because we also conclude that the government did not have consent
to enter Zogmaister’s motel room, we are now faced with the interesting prospect
of a three-legged stool standing on but one leg. We examine this sole source of
support and the only contested issue—whether the government’s warrantless entry
was justified by exigent circumstances.
Exigent circumstances may justify warrantless searches when: (1) there is
probable cause for the search or seizure, and the evidence is in imminent danger
of destruction, Cupp v. Murphy, 412 U.S. 291, 294–96 (1973); (2) the safety of
law enforcement or the general public is threatened, Warden v. Hayden, 387 U.S.
294, 298–99 (1967); (3) the police are in “hot pursuit” of a suspect, United States
v. Santana, 427 U.S. 38, 42–43 (1976); or (4) the suspect is likely to flee before
the officer can obtain a warrant, Minnesota v. Olson, 495 U.S. 91, 100 (1990). In
3
In its brief, the government states, “the Government does not believe that
the record supports a conclusion that the Defendant impliedly consented to the
officers’ entry into the room.” (Aplt. Br at 11.)
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the instant case, the government contends that its warrantless intrusion into
Zogmaister’s motel room was justified by exigent circumstances—more
specifically, that the safety of Agents Clamen, Jackson, and Elliot was threatened.
While we recognize that concerns for officer safety sometimes may produce
exigent circumstances that justify a warrantless search, it is the government’s
burden to demonstrate the presence of those exigencies. United States v. Maez,
872 F.2d 1444, 1452 (10th Cir. 1989). In determining whether the government
has met its burden, we “evaluate the circumstances as they would have appeared
to prudent, cautious and trained officers.” United States v. Cuaron, 700 F.2d 582,
586 (10th Cir. 1983) (quotations omitted).
There is “no absolute test for the presence of exigent circumstances,”
United States v. Justice, 835 F.2d 1310, 1312 (10th Cir. 1987) (quotation
omitted); however, we have provided a general framework for analyzing this type
of exigent circumstances claim:
The basic aspects of the “exigent circumstances” exception are that (1)
the law enforcement officers must have reasonable grounds to believe
that there is immediate need to protect their lives or others or their
property or that of others, (2) the search must not be motivated by an
intent to arrest and seize evidence, and (3) there must be some
reasonable basis, approaching probable cause, to associate an
emergency with the area or place to be searched.
United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986). We also require that
a government assertion of exigent circumstances be “supported by clearly defined
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indicators of exigency that are not subject to police manipulation or abuse.”
Aquino, 836 F.2d at 1272 (emphasis added). 4
The three requirements of United States v. Smith are conjunctive; that is to
say, the government has the burden of demonstrating each of them in order to
overcome the Fourth Amendment’s general presumption that warrantless searches
are unreasonable. Thus, the government initially must demonstrate that the
officers had reasonable grounds to believe that there was an immediate need to
protect their lives. To this end, the government points to the informant’s
testimony that there was a gun in the motel room, the fact that it took between
thirty and forty-five seconds for Zogmaister to open the door, and Ables’
purportedly sudden entrance into the motel room when Zogmaister opened the
door.
Whether these factors in their totality are sufficient to satisfy the first
requirement of Smith presents a close question, but we note that we have
concluded previously in similar circumstances that concerns for officer safety
were not enough to justify a failure to knock and announce. 5 However, assuming
Though Aquino addressed exigent circumstances in the context of
4
evidence in imminent danger of destruction, we conclude that its rationale applies
equally to exigent circumstances in the context of concern for the safety of law
enforcement or the general public.
In United States v. Stewart, 867 F.2d 581, 584–86 (10th Cir. 1989),
5
officers cited safety concerns for their failure to knock and announce in executing
(continued...)
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arguendo that it was reasonable for the officers to have perceived a generalized
danger, the second requirement of Smith creates an additional stumbling block for
the government. 6
According to Smith, exigent circumstances can justify a warrantless search
only if the search is “not [] motivated by an intent to arrest and seize evidence.”
797 F.2d at 840. Without this requirement, the exigent circumstances exception
would constitute a substantial loophole in our Fourth Amendment jurisprudence.
5
(...continued)
their warrant; the officers in Stewart relied on testimony from a confidential
informant who had seen the defendant with a gun in the past. While we rejected
the officers’ justification in Stewart for several reasons, our explanation of what
might constitute a sufficient set of facts to justify exigent circumstances on the
basis of officer safety is instructive. Citing United States v. Spinelli, 848 F.2d 26(2d Cir. 1988) as a “good example of a situation where an unannounced entry into
a home was justified due to the presence of exigent circumstances,” we pointed to
the following specific factors in that case: (1) that the officers were aware that the
defendant had a history and reputation of violence; (2) that the officers had
conducted a lengthy surveillance of the suspect; (3) that they were concerned that
the suspect had become aware of their surveillance; and (4) that flammable
liquids were at the scene, and the officers were concerned that the defendant
would cause an explosion given that he had become aware of their surveillance.
Stewart, 867 F.2d at 585–86. Notably, none of those circumstances were present
in Stewart, and neither are they present in the instant case. Zogmaister had no
violent convictions on his record. The officers’ surveillance was relatively short,
and they had no reason to think that Zogmaister was aware of it.
6
We do not address whether the government has met Smith’s third
requirement, that “there must be some reasonable basis, approaching probable
cause, to associate an emergency with the area or place to be searched.” Smith,
797 F.2d at 840.
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If the government could use the exigent circumstances exception to justify
warrantless searches when searches were motivated by an intent to seize evidence,
officers could conduct warrantless searches for drugs any time they had reason to
believe that the suspect possessed a gun or posed a potential danger. Thus, Smith
requires that a warrantless search not be motivated by an intent to search for
evidence.
To this point, the officers claim in their depositions that when they
accompanied Ables to the motel room, their motivation was simply to speak to
Zogmaister outside of his room and had nothing to do with actually searching the
room. Of course, no direct evidence runs counter to the officer’s testimony; who
but the officers could attest to their motivation? Despite the absence of direct
evidence to impeach the officers’ stated motivations, however, we have grave
concerns about the government’s offer of proof on this issue.
In our view, two sets of facts in the record militate against the officers’
assertions. First, it is undisputed that the officers suspected that the room
contained methamphetamine, and moreover, the officers testified that they
suspected Zogmaister of dealing the drugs. We consider it unlikely, given these
undisputed perceptions on the part of the officers, that the officers’ desire to
search the motel room for drugs did not influence their decision to enter the room.
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In addition to this consideration, we are troubled by the officers’ decision
to follow Ables into the room given the other choices available to them at that
moment in time, any of which would have reduced the threat to their safety rather
than increasing it. Agent Jackson testified that when Ables entered the room, he
and the other officers followed her because the doorway represented a dangerous
funnel of fire. Certainly, that characterization of the doorway made it an area to
be avoided at all costs. However, the record reflects that when Ables entered the
room, the officers were not in the doorway at all. Instead, when Ables entered,
the officers were standing to the side of the door; in their depositions, the officers
specifically testified that in their positions to the side of the door, they were
“protected . . . by [the] walls”—out of the funnel of fire. (3R. at 45.) Thus, even
if we assume that the officers reasonably perceived the doorway to be a dangerous
funnel of fire, Ables’ entrance into the room put them in no immediate danger.
In fact, the officers had options, each of which would have kept them out of
the perceived danger and each of which was less dangerous than the action they
ultimately took. Prudence suggests that to avoid the funnel of fire apparently
represented by the doorway, a course other than entry into that doorway would
have been wise. Other choices were certainly available; the officers could have
chosen to obtain a search warrant. Having elected not to do so in the first
instance, they could have remained outside of the room and asked Zogmaister to
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speak with them in the hallway. Instead, the officers chose to enter the room and
thereby apparently increase their immediate danger. Thus, the result of the
officers’ action of following Ables into the room without a warrant was not the
avoidance of a reasonably perceived danger, but rather the exacerbation thereof.
Despite abundant evidence indirectly suggesting that the officers’ actual
reason for entering the motel room was ultimately to search the room for the
drugs they thought it contained, we are hard-pressed to draw such a conclusion
absent direct testimony by the officers themselves. We recognize that such
problems of proof might be endemic to Smith’s second requirement given that it
mandates an inquiry into the officers’ specific motivations. Those problems in
mind, we look to Aquino, which requires that exigent circumstances be
“supported by clearly defined indicators of exigency that are not subject to police
manipulation or abuse.” 836 F.2d at 1272 (emphasis added).
Much like the second prong of Smith, the requirement that the government
not create its own exigency stems from our concern “that the police not be placed
in a situation where they can create the exception, because well-meaning police
officers may exploit such opportunities without sufficient regard for the privacy
interests of the individuals involved.” Id.; see also United States v. Mikulski, 317
F.3d 1228, 1233 (10th Cir. 2003) (counseling against the “manufacture of
exigencies”); United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984)
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(noting that in the context of a warrantless arrest, “police officials . . . are not free
to create exigent circumstances to justify their warrantless intrusions”); United
States v. Allard, 600 F.2d 1301, 1304 n.2 (9th Cir. 1979) (“If exigent
circumstances were created, they resulted from the agent’s own conduct”).
Though motivated by the same concerns as Smith’s second prong, the requirement
in Aquino is more helpful to us in cases like the one before us because it does not
require us to inquire into the officers’ motivations, a role better suited for the
fact-finder. Rather, the Aquino requirement allows us to evaluate the objective
evidence and simply determine whether the indicators of exigency were subject to
police manipulation or abuse.
In the instant case, we conclude that even if the officers reasonably
perceived that they were in danger, they improperly created their own exigency.
From the time they called Zogmaister feigning interest in his car, the officers
entirely controlled the action. Once Ables came down to see them in response to
their call, the officers walked her back to the motel room, directed her to knock,
and did not prevent her from entering the room. The officers’ course of action
represents a clear example of the government creating its own exigency and thus
attempting to circumvent the Fourth Amendment’s requirements.
Indeed, “[t]he Fourth Amendment guards against such ‘bootstrap’
arguments serving as a basis for the warrantless search of a person’s home.”
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United States v. Anderson, 981 F.2d 1560, 1568 (10th Cir. 1992). Therefore, we
conclude that the government has failed to satisfy its burden of demonstrating that
exigent circumstances justified the officers’ warrantless entry into Zogmaister’s
motel room.
III
Accordingly, we REVERSE.
Judge McWilliams dissents.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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No. 03-8005, United States v. Zogmaister
BRISCOE, Circuit Judge, concurring:
I concur in the result but I reach that result by a different route. Judge
Lucero concludes the officers “did not prevent [Ables] from entering the room”
and thus created their own exigency in an attempt to circumvent the Fourth
Amendment. Op. at 15. However, the district court found the officers did not
expect Ables to enter the motel room. Specifically, the district court described
her entry as “unexpected.” ROA, Vol. I, Doc. 39. That factual finding is subject
to review only for clear error. See United States v. Scroger, 98 F.3d 1256, 1260
(10th Cir. 1996) (applying clear error standard of review to district court's
determination that officers “did not manipulate or abuse the circumstances” to
create the exigency); United States v. Carr, 939 F.2d 1442, 1448-49 (10th Cir.
1991) (applying clear error standard of review to district court's finding that,
although exigency was foreseeable, critical factors creating exigency were not
subject to police manipulation or abuse). Because I cannot conclude the district
court's finding was clearly erroneous, I do not agree that the officers created an
exigency by not preventing Ables’ entry. Rather, I conclude the officers’
subsequent entry into the room was not justified by the safety concerns urged by
the government.
The “existence of exigent circumstances is a mixed question of law and
fact.” United States v. Davis, 290 F.3d 1239, 1241 (10th Cir. 2002). The district
court’s factual findings are accepted unless they are clearly erroneous, but “the
determination whether those facts satisfy the legal test of exigency is subject to de
novo review.” United States v. Flowers, 336 F.3d 1222, 1228 (10th Cir. 2003).
When the purported exigency concerns police officer safety, one basic aspect of
the exigent circumstances exception is that “officers must have reasonable
grounds to believe that there is immediate need to protect their lives.” United
States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986) (emphasis added). Here, the
facts as found by the district court do not establish that the officers had
reasonable grounds to believe there was an immediate need to enter the motel
room to protect their lives.
The government argues that Ables’ unexpected entry into the motel room
created a dangerous situation which justified entry. See United States v. Aquino,
836 F.2d 1268, 1271 (10th Cir. 1988) (stating that “[w]hen police seek to enter a
home without a warrant, the government bears the burden of proving that
sufficient exigency exists”). The government contends it would have been
“dangerous, if not downright foolhardy” for the officers to remain outside the
room “not knowing where Ms. Ables was going or what she [was] going to do
once she got there.” Aple. Br. at 15. However, there is no evidence in the record
that the officers had reason to believe Ables was violent or willing to use a gun or
that the officers had to enter the room as a result. Zogmaister was wearing long
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underwear and was not carrying a gun when he answered the door. Neither
Zogmaister nor Ables made any threatening gesture. Although a confidential
informant had told officers there was a gun in the motel room, there was no
evidence presented at the suppression hearing regarding the informant’s
background or history of reliability as an informant. See United States v. Avery,
295 F.3d 1158, 1167 (10th Cir. 2002) (criminal history and history of reliability
as informant are two factors to be considered in determining whether probable
cause is established). Moreover, there is no indication in the record that the
informant suggested that either Zogmaister or Ables was likely to use the gun if
confronted by police. I agree with Judge Lucero that it appears the officers safely
could have avoided the doorway (the so-called “funnel of fire”) instead of rushing
through it.
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