Petition for Writ of Certiorari — Knobeloch v. United States

84-1241.

Office - Suoreme Court, U.S.

FILED

DEC 12 1004

ALEXANDER L. STEVAS.

CLERK

No.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1984

ROBERT KNOBELOCH, Petitioner,

V

. =

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

MR. PAUL STORMENT, JR.

STORMENT & READ

8019 Forsyth

St. Louis, MO 63105

(618) 274-9514

ATTORNEY FOR PETITIONER,

ROBERT KNOBELOCH

QUESTIONS PRESENTED

I. SHOULD THE EVIDENCE SEIZED IN A

WARRANTLESS SEARCH OF A HOTEL ROOM BE

SUPPRESSED WHEN THE GOVERNMENT AGENTS

KNEW THE LOCATION OF THE CONTRABAND

BEFOREHAND AND THE GOVERNMENT AGENTS

CREATED THE ALLEGED EXIGENCIES PURPORTED

TO JUSTIFY THE SEARCH?

TABLE OF CONTENTS

Page

Questions Presented i

Table of Cases and Autnorities iii

Petition 1

Opinion Below 3

Jurisdiction 3

Statement of the Case 4

Reason for Granting the Writ 15

Conclusion 27

Appendix A-}

ii

TABLE OF CASES AND AUTHORITIES

HOFFA V. UNITED STATES, 385 U.S. 293, 87

S.Ct. 408, 17L.Ed. 2d 374 (1966)

KATZ V. UNITED STATES, 389 U.S. 347, 88

s.Ct. 507, 19 L.Ed. 2d 576 (1967)

RAKOS V. ILLINOIS, 439 U.S. 128, 99 S.Ct.

421, 582 L.Ed. 2d 387 (1978)

RIOS V. ANDERSON, 533 F.2d 1210 (D.C.

Cir. 1976)

STORER V. CALIFORNIA, 376 U.S. 483 (1964)

UNITED STATES V. BLAKE (1980) 632 F.2d

731

UNITED STATES V. BRAND, 566 F.2d 1312

(5th Cir. 1976)

UNITED STATES V. BULMAN, (11th Cir. 1982)

667 F.2d 1374

UNITED STATES V. DAVIS, 423 F.2d 924

(Sth Cir. 1970)

UNITED STATES V. HACKETT, 638 F.2d 1179

(9th Cir. 1980)

UNITED STATES V. JACKSON, 588 F.2d 1046

(6th Cir. 1979)

UNITED STATES V. MUNIE, 534 F.2d 695

(6th Cir. 1976)

UNITED STATES V. RUBIN, 472 F.2d 262

(3rd Cir. 1973)

iii

WOLF V. COLORADO, 338 U.S. 25, 69 S.Ct.

1359, 93 L.Ed. 1782 (1949)

WONG SUN V. UNITED STATES, 371 U.S. 471,

83 S.Ct. 407, 9 L.Ed. 2d 441 (1963)

2t Usewces Beart (83 17 and §846

iv

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1984

ROBERT KNOBELOCH, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner, Robert Knobeloch, res-

pectfully prays that a writ or certiorari

issue to review the judgment and opinion

of the United States Court of Appeals

for the Eighth Circuit.

The appeal to the Eighth Circuit

was taken from a ruling and judgment

entered on a finding of guilt on a two-

count Indictment filed against Robert

1

Knobeloch. Judgment followed a bench

trial had in the United States District

Court for the Eastern District in

Missouri, Eastern Division, on February

6, 1984. The defendant appealed the

Magistrate's ruling and trial court's

ruling denying defendant's Motion to

Suppress.

The District Court ruled that there

were present at the time of the arrest

sufficient exigent circumstances in order

to justify the warrantless search of the

defendant's hotel room, and hence, the

seizure of the evidence therein, and

upheld the denial of che Motion to

Suppress.

OPINION BELOW

The opinion of the United States

Court of Appeals for the Eighth Circuit

was filed on October 29, 1984, and is

attached hereto and made a part of the

appendix.

JURISDICTION

The judgment of the United States

Court of Appeals for the Eighth Circuit

was entered on October 29, 1984. The

jurisdiction of the Court is invoked

under 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

The defendant, Robert Knobeloch, was

co-defendant on a two-count Indictment

filed against William Hahn and Robert

Knobeloch. Count I alleged that Knobe-

loch and Hahn knowingly and willfully

conspired to distribute cocaine in

violation of 21 U.S.C. §841(a) (1) and

§846. Count II alleged Knobeloch

possessed cocaine with the intent to

distribute in violation of 21 U.S.C. §841

ia) (1h.

Defendant pled not guilty to both

charges and filed a Motion to Suppress

and other pre-trial motions on November

2, 1983. On November 10, 1983, all pre-

trial matters were assigned to United

States Magistrate Robert D. Kingsland.

On November 15, 1983, a hearing was had

in regard to defendant's Motion to

Suppress before Magistrate Kingsland.

4

Timothy A. Brunholtz, special agent

for the Department of Justice, testified

he was assigned to the St. Louis District

Office in March of 1982. (Mot. Tr-4)

He stated on March 30, 1982, he was pre-

sent at the Howard Johnson Motel in St.

Louis with other agents. (Mot. Tr-5)

Brunholtz stated that he, an informant

and Officer Zambo were to conduct a drug

transaction with a Mr. Hahn. (Mot. Tr-6)

Brunholtz stated Zambo took out room 114

in order to take delivery of cocaine.

(Mot. Tr-7)

After their arrival, Mr. Hahn told

the agents the delivery would have to

take place in two transactions instead

of one. (Mot. Tr-8) Brunholtz testified

Hann came to room 114, delivered a quan-

tity of cocaine and was arrested. (Mot.

Tr-9) Hahn told the agents the name of

the other party to this transaction was

5

Bob Knobeloch. (Mot. Tr-11) Brunholtz

Stated he knew Knobeloch was in the

building and may have been in room 317.

(Mot. Tr-i12) Room 317 proved to be

vacant. (Mot. Tr-13) Brunholtz and

other police officers went to room 308,

knocked and said they were the maid

service. (Mot. Tr-14) The agents

identified themselves as Federal agents

and tried to open the door with a pass

key. (Mot. Tr-14) The door was bolted,

and they entered forcibly. (Mot. Tr-14)

They found Mr. Knobeloch in the room,

and then patted him down to search for

weapons finding bags of cocaine and other

evidence. (Mot. Tr-16) Brunholtz stated

he didn't think they had time to get a

warrant. (Mot. Tr-18)

On cross-examination, Brunholtz

stated he was aware the drug deal would

transpire in either room 308 or one of

6

the rooms they chose. (Mot. Tr-20) He

stated he knew Hahn was going to have

drugs with him in room 308. (Mot. Tr-22)

Brunholtz stated Hahn was notified to

come to room 114 so that the arresting

officers could come in through the first

floor sliding door. (Mot. Tr-33)

Brunholtz stated he knew it was a good

likelihood that another person other

than Hahn would be involved in the

transaction. (Mot. Tr-24) Brunholtz

said no one would have gotten out of

room 308 if an officer was posted out-

Side. (Mot. Tr-26)

Brunholtz stated at the time of

Hahn's arrest since Knobeloch couldn't

have known the deal had gone bad, they,

the agents, had no reason to suspect

Knobeloch would destroy the evidence.

(Mot. Tr-26) He stated between the time

they first knocked down room 308 and

7

finally got in was around 45 seconds to

one minute. (Mot. Tr-27) He stated

they entered the room without a warrant

and without consent. (Mot. Tr-28)

Brunholtz stated he could have arranged

to have a warrant issued the day before.

(Mot. Tr-29) He didn't believe anyone

was going to be injured nor was he in

hot pursuit. (Mot. Tr-30) He stated the

defendant had the evidence seized in his

pocket and did not appear ready to dis-

pose of any evidence. (Mot. Tr-31)

Brunholtz testified he entered the room

to protect the destruction of evidence.

(Mot. Tr-32)

The defendant testified he is 33

years old and resides in Mascoutah,

Illinois. (Mot. Tr-41) Knobeloch

Stated while he wes in room 308, he did

not know that any drug sale had gone

bad. (Mot. Tr-42) He stated while

8

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A ehtien

ete WHaetlby wr BUR wn fn Ww “a

Mr. Hahn was gone, he was sitting on the

bed in room 308 reading a magazine.

(Mot. Tr-42) He stated he heard a voice

saying maid service and he refused it.

(Mot. Tr-43) He stated the men who

forced the door down announced they were

agents at the same time they broke the

door down. (Mot. Tr-43) He stated he

did not destroy nor attempt to destroy

any evidence. (Mot. Tr-44)

On December 30, 1983, Magistrate

Robert D. Kingsland recommended the

Motion to Suppress be denied. Judge

William L. Hungate adopted the Magis-

trate's recommendations in an Order

dated January 23, 1984.

A trial was had before United States

District Judge William L. Hungate. The

defendant first moved to waive the jury

and his motion was allowed. (Tr-3)

The Government called William Hahn.

9

5 aeons

4

}

;

i

a

+

(Tr-10) Hahn stated he had agreed to

testify against the defendant Knobeloch,

and the Government agreed to file no

other charges against him. (Tr-11) Hahn

stated that on March 20, 1982, an infor-

mant asked him about getting some

cocaine. (Tr-12)

On March 30, 1982, at around 11:00

a.m., Yahn called Knobeloch, who was to

Supply the cocaine, to come over to the

Howard Johnson's Motel in St. Louis.

(Tr-19) Hahn stated Knobeloch came into

room 308 and showed him the drugs. (Tr-

20) Hahn stated he later got a call from

the informant. (Tr-21) Hahn stated he

told Knobeloch to go to room 317. (Tr-

21) The informant called and said the

buyer was going to take out room 114, and

the exchange would take place there.

(Tr-23) Hahn said the police asked him

where the rest of the drugs were, and he

10

enlitittates iedar Dd Pee AI aa ta a>

told them it was with Bob Knobeloch.

(Tr-24)

On cross examination, Hahn testified

the Government informant knew another

person was to be involved in the trans-

action at the motel. (Tr-35) Hahn

stated the informant had called him on

the phone in room 308 the day before, and

the informant knew Hahn was going to be

in room 308. (Tr-35) Hahn stated it

would be customary for a person buying

cocaine to test it for purity, and that

the money would have to be counted, and

that all of this would take time. (Tr-

36) Hahn stated after he was arrested he

couldn't have warned Knobeloch. (Tr-37)

He stated 25 minutes elapsed between the

time he was arrested, and the time the

agents went to Knobeloch's room. (Tr-38)

St. Louis Police Officer Robert

Zambo testified one of his informants

11

advised him around March 20, 1982, that

a purchase of cocaine might take place.

(Tr-44) Zambo testified in conformity

with Agent Brunholtz regarding the facts

of the purchase and arrest of both

parties. (Tr-46-52)

On cross-examination, Zambo stated

he Knew that Mr. Hahn was not going to

Supply the cocaine, and that another

person was to be involved. (Tr-59)

Zambo knew Hahn had rented room 308 at

least one day before the exchange took

place. (Tr-60) Zambo stated he knew

; beforehand that the source of the cocaine

might be in room 308. (Tr-61)

: Gus Kolilis, police officer, was

assigned to Howard Johnson's on March 30,

1982. (Tr-72) He testified that on that

day Mr. Hahn was taken into custody in

room i114. (Tr-74) Kolilis testified in

conformity with Brunholtz regarding how

12

room 317 was searched and how room 308

was broken into. (Tr-76)

On cross-examination, Kolilis stated

on March 30, 1982, Zambo briefed him on

the transaction, and that Mr. Hahn was

going to be one of the participants.

(Tr-86) At the time of the arrest of

Hahn, Zambo told Kolilis that the other

party might be in room 308 or 317.

(Tr-90) Over objection, Kolilis testi-

fied that if on March 29, 1982, the

officers in charge had had knowledge that

the contraband would have been present in

room 308, the obtaining of a search

warrant would have been preferable to the

manner in which they handled the arrest.

(Tr-94) Kolilis stated he knew the only

way Knobeloch could get out of the room

was through the front door or a third

story window. (Tr-98) He stated that

when they broke the door down, Knobeloch

13

was not attempting to destroy any

evidence. (Tr-99)

14

abate de ee

MIE a IO a le 3 ce”

REASONS FOR GRANTING THE WRIT

The Eighth Circuit Court of Appeals

found the defendant lacked standing to

assert any right to privacy and that the

exigent circumstances justified a

warrantless search ofthe room the defen-

dant occupied and the seizure of the

evidence there.

The Fourth Amendment disallows

unreasonable searches and seizures and

assures that people may be secure in

their "persons, houses, papers and

effects." This right to privacy may not

be capriciously invaded by agents of the

state nor the Federal Government. Wolf

v. Colorado (1949) 338 U.S. 25, 69 S.Ct.

1359, 93 L.Ed. 1782. The thrust of the

protection is that the evidence seized

by an illegal search is excludable in a

federal prosecution and the fruit of the

search may not be admitted against the

15

Ozh ag Se as haa

ed hee Wa re

a

SARS es Wee ER, tein oe Me ee

defendant. United States v. Davis, 423

F.2d 924 (5th Cir. 1970); Wong Sun v.

United States, 371 U.S. 471, 83 S.Ct.

407, 9 L.Ed. 2d 441 (1963).

The extent and breadth of a person's

"reasonable expectation of privacy" was

delineated in Katz v. United States, 389

U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576

(1967). The genesis of "reasonable

expectation" has generally followed the

criteria of an actual expectation by the

person, one which society views as

reasonable and legitimate. Katz, infra.

while a person in a motel room does not

have a legitimate expectation of privacy

in regard to his conversations which may

be overheard in adjoining rooms, United

States v. Jackson, 588 F.2d 1046 (1979),

he can reasonably expect protection from

invasive physical trespass into the room

itself. Rakos v. Illinois, 439 U.S. 128,

16

et eee ed Oa WA Sine

99 S.Ct. 421, 582 L.Ed. 2d 387 (1978);

United States v. Blake (1980) 632 F.2d

731. The Court below apparently held

that since the defendant, Robert Knobe-

loch, did not rent the rooms in question,

but merely occupied them, he, therefore,

had no standing to assert any right to

privacy argument. Knobeloch had per-

mission to be in the rooms in question

and had a key given to him by the co-

defendant who had rented both rooms. As

a hotel or motel room can be the object

of protection as well as a home, the

defendant was entitled to the same ex-

pectation of privacy as a home occupier.

Hoffa v. United States, 385 U.S. 293,

87 S.Ct. 408, 17 L.Ed. 2d 374 (1966).

As the court said in Katz, infra., and

reiterated in United States v. Jackson

at 1502, the right to privacy protects

people, not places.

17

S

-

rae

Based upon all the reasoning above,

the defendant, Robert Knobeloch had a

right to privacy expectation, and he had

standing to assert it as a lawful occu-

pier of the motel room. Rakos v.

Illinois, infra.

Since the defendant had a valid

right to privacy, the next question was

whether or not the warrantless search

executed and its fruits should be

Suppressed. A warrantless searck is

presumed to be unlawful and can survive

only by being brought within one of the

exceptions to tne rule that a search may

only be carried out pursuant to a search

warrant. Storer v. California, 376

U.S. 483 (1964); Rios v. Anderson, 533

P.2@ 2210 (0.C. Cir. 1976)

The burden of proof as to any ex-

ception to justify a warrantless search

is upon the Government. United States v.

18

Munie, 534 F.2d 695 (6th Cir. 1976) The

common reasons for a warrantless entry

and search onto the premises protected by

the Fourth Amendment are to prevent in-

jury and to halt a crime in progress.

United States v. Brand, 566 F.2d 1312

(Sth Cir. 1976)

The Government will cite United

States v. Hackett, 638 F.2d 1179, (9th

Cir. 1980) for the proposition that exi-

gent circumstances existed before break-

ing into the defendant's room. The

tests under United States v. Rubin, 472

F.2d 262 (3rd Cir. 1973) will also be

cited supporting the Government's case.

Under Rubin and its progeny, the

first consideration in a warrantless

search is the urgency of the situation

and the amount of time necessary to ob-

tain a warrant. The agents and policemen

involved in this transaction were

19

experienced and had participated in many

other investigations. The magistrate in

his recommendation stated the agents had

no way of knowing where the transaction

was to take place. This was not true.

Officer Brunholtz stated he knew co-

defendant Hahn was using room 308, and he

knew Hahn was going to have drugs in room

308. (Mot. Tr-21-22) The agents knew it

was going to be either in room 308 or as

it turned out a room which they chose in

order to facilitate the arrest, that is

room 114. (Mot. Tr-23) The magistrate

also stated the officers had no way of

knowing a third man, Mr. Knobeloch, was

to be involved. That finding was in

error. Brunholtz testified he knew

another person was likely to be involved.

(Mot. Tr-24) Officer Zambo, who was in

charge of the investigation, knew another

man was to be involved with the delivery.

20

(Tr-59) Zambo knew Hahn had let room 308

the day before the arrest and knew the

source of the cocaine might be in room

308. Officer Kolilis stated on the day

of the arrest Zambo told him of another

party to the sale who might be in room

308 or 317. (Tr-90)

In regard to the time necessary to

obtain a warrant and the urgency in-

volved, every witness for the Government

stated room 308 was the center for Mr.

Hahn and the cocaine. The police knew at

least 24 hours ahead of time of the

existence of another party, and that the

co-derendant Hahn was going to have drugs

in room 308. The urgency in regard to

the needing of the warrant after the

arrest of Mr. Hahn was created by the

Government's own nonfeasance in procuring

a warrant. Based upon probable cause, a

warrant could have been readily issued

21

the day defore or the morning of the

transaction. Brunholtz testified a

warrant should have been obtained. (Mot.

Tr-29) Kolilis stated that a search

warrant would have been preferable to

knocking the door Gown. (Tr-94) The

Government's failure to procure a readily

obtainable warrant should not be allowed

to trammel the right of privacy expecta-

tion of the defendant.

The second circumstance to examine

in a warrantless search is the of*ticers

reasonable belief evidence is about to be

destroyed. None of the Government wit-

nesses testified they believed evidence

was about to be destroyed when they broke

down the door into room 308. Brunholtz

testified Knobeloch could not have known

that Hahn had been arrested. (Mot. Tr-

27) The officers who arrested Knobeloch

both stated Knobeloch was not attempting

22

to dispose of any evidence although it

could have been done relatively easily.

As the defendant was on a third floor

room with only one way out, the evidence

could not have reasonably been feared to

be removed from the room.

The Rubin test of danger to the

police guarding the site is clearly in

the defendant's favor, as no evidence was

put on by the Government regarding this

aspect and this test of exigency clearly

fails.

There was no evidence in the case

that Knobeloch knew the police were on

"his trail" as per Rubin. Hahn testified

he was supposed to return to room 308 to

pick up the second part of the delivery.

There was no undue delay up to the arrest

of Knobeloch, as Hahn was arrested almost

immediately upon making the delivery.

All witnesses testified a normal trans-

22

al ea i

action takes several minutes to test the

drugs and count the money. Until the

agents knocked on the door, Knobeloch

stated he had been sitting on the bed

reading a magazine. (Mot. Tr-42) The

exigency which is supposed to allow a

warrantless search should not be one

created by the police. The defendant had

no other way out of the motel room

except through the door which the offi-

cers broke down. The officers could have

been posted, and the defendant would have

been apprehended.

The fifth test under Rubin regarding

the ready destructibility of the evidence

favors the Court's ruling, however, in

light of other criteria, the argument

in favor of not finding an exigency

overwhelms the destructibility argument.

In summary, there was not an exi-

gency of circumstances which would

24

validate a warrantless search. The

officers knew of an additional party to

the transaction other than Hahn. They

were aware the day before that another

party would be supplying the drugs to

Hahn. They were aware Hahn had let room

308. By their own choice, they changed

the probable site of the delivery in

order to facilitate the arrest thereby

insuring the other party would end up in

room 308 with contraband they knew would

be there. There was no evidence of

reasonable belief that any drugs were

about to be destroyed. There was no

testimony that Knobeloch knew something

was awry in regard to the transaction

or that the police were on his trail.

The defendant had the right to

assert an expectation of privacy. The

Government had at least one day in which

to obtain a warrant for the room which

25

they knew was going to be involved in the

transaction. The exigency of circum-

stances, even if found to exist which

petitioner asserts does not, should be

found to be one of the Government's

creation and not one that they can rely

on. The evidence seized should have been

Suppressed, as the search of the room

and entry into room 308 were illegal.

United States v. Mann (D.C. Texas 1978)

462 F.Supp. 933; United States v. Bulman

(11th Cir. 1982) 667 F.2d 1374.

26

CONCLUSION

This Court should grant this Peti-

tion for Certiorari because the Court

has held that an individual has no right

of expectation of privacy in a hotel room

in contravention of the 11th Circuit

case, United States v. Bulman (1982) 667

F.2d 1374. This Court should delineate

the standard of expectation of privacy in

a hotel room. Further, an exigency of

the warrantless search created by Federal

drug agents and adequate time and reason

should be used as a sword in order to

obviate the necessity of a valid search

warrant under the rubric of exigent cir-

cumstances as the 9th Circuit has decided

in United States v. Blake (1980) 632 F.2d

T3T.

For all the reasons cited above,

petitioner respectfully prays that this

Court enter an Order allowing

27

Jie 3605 Se a

petitioner's Writ of Certiorari.

Res tfully submitted

STORMENT & READ

8019 Forsyth

St. Louis, MO 63105

(618) 274-9514

ATTORNEY FOR PETITIONER,

ROBERT KNOBELOCH

28

APPENDIX A

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

Vv.

ROBERT KNOBELOCH,

Defendant/Appellant.

No. 84-1417-EM

United States Court of Appeals,

Eighth Circuit

Before BRIGHT, JOHN R. GIBSON and FAGG,

Circuit Judges.

JOHN R. GIBSON, Circuit Judge

1. Opinion of the United States Court

of Appeals for the Eighth Circuit

filed on October 29, 1984.

Robert Knobeloch was convicted in a

bench trial of knowingly and willfully

possessing and conspiring to possess,

with intent to distribute, cocaine, in

violation of 21 U.S.C. $$ 341 (a) (1) and

846 (1982). The sole issue raised on

appeal is whether the district court!

erred in denying Knobeloch's motion to

Suppress a quantity of cocaine seized

from him in a motel room. We affirm the

ruling of the district court and the

convictions.

Two undercover agents had planned

a drug transaction with William Hahn,

who was then renting room 308 in a

Howard Johnson's Motor Lodge. On the

morning set for the exchange, however,

Hahn announced that the delivery would

"The Honorable William L. Hungate,

United States District Judge for the

Eastern District of Missouri.

take place in two installments instead

of one. Within thirty minutes, he went

to room 114 of the same motel to meet the

agents; he was arrested there while

counting the money after turning over the

first half of the cocaine. Hahn identi-

fied Knobeloch as his Source to whom he

was to take the money before receiving

the remainder of the cocaine, but he

declined tolead the officers to Knobeloch

or to call Knobeloch to assure him the

transaction was progressing satisfactor-

ai. Police officers, based on earlier

conversation as to where the transaction

might take place, went first to room 317.

It was vacant so they went to room 308,

knocked and said they were with the maid

service. The officers unsuccessfully

attempted to use a passkey and, upon

hearing noises within, forced the door

open, arrested Knobeloch and seized

A-3

cocaine from his person.

The district judge, following the

recommendation of a magistrate to whom

certain pretrial motions had been

referred, denied Knobeloch's motion to

Suppress the cocaine, finding that exi-

gent circumstances justified the offi-

cers' warrantless entry into the motel

room. This determination is subject to

the clearly erroneous standard of review.

United States v. Wentz, 686 F.2d 653,

657 (8th Cir. 1982); United States v.

Jones, 635 F.2d 1357, 1360 (8th Cir.

1980).

The evidence demonstrates that Hahn,

upon his arrest, told the agents that

Knobeloch expected him back immediately

with the money. Since Hahn refused to

“The district court also held that

Knobeloch lacked standing to challenge

the constitutionality of the search, but

the government does not defend on that

ground on appeal.

A-4

call Knobeloch to reassure him, the

agents believed that Knobeloch would

Suspect that the deal had gone sour

before they would have time to obtain a

search warrant. When they found no one

in room 317 and heard a scurrying in room

308 after identifying themselves as

federal agents, they feared that the

cocaine would be destroyed. Upon enter-

ing they found Knobeloch standing near

the bathroom door, and the cocaine was

on his person.

In United States v. Palumbo, 735

F.2d 1095 (8th Cir. 1984), we were pre-

sented with similar circumstances in

which officers feared that one drug

dealer's failure to return promptly

(because of arrest) would alert the

partner that something was amiss. We

there stated: "We believe that the

officers’ fear that Palumbo would become

A-5

Suspicious and destroy the cocaine was

reasonable, and created an exigency

sufficient to justify the warrantless

entry and arrest." Id. at 1097. Under

the facts here, a fear of destruction of

the evidence was equally reasonable and

sufficient to constitute exigent circum-

Stances justifying the officers" actions.

Knobeloch argues vigorously that the

urgency here was created by the police

since the agents knew that another person

was likely to be involved in the drug

transaction and knew that activities

would center around room 308, where

Knobeloch was arrested, because Hahn had

rented it the day before the transaction.

Knobeloch also asserts that no government

witness testified tec a belief that

evidence was about to be destroyed and

that the arresting officers in fact

testified that Knobeloch was not

A-6

attempting to dispose of evidence when

they seized him. He argues that the

time lapse between the arrest of Hahn and

the arrival of the officers at room 308

was insufficient to have given him warn-

ing that something had gone wrong and

that since there was only one way out of

the room, officers could have been

posted.

There is evidence, however, that the

agents believed they could not make a

sufficient showing of probable cause

prior to the first delivery of drugs by

Hahn. Until they knew at least that the

transaction would be conducted in two

parts, they had no reason to suspect that

Hahn's drug source would be present in

the Howard Johnson's at that time, even

though they could suspect his general

existence.

We cannot conclude that the district

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.

a

e

a

7

l a

.. court was clearly erroneous in its

finding of exigent circumstances. The

possibility tnat Knobeloch would take

warning from the delay in Hahn's return

and the scurrying heard by the officers

while outside room 308 justified a fear

that evidence would be destroyed.

Palumbo requires that we uphold the

district court in denying the motion to

suppress.

The conviction of Knobeloch on

both counts is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.