Petition for Writ of Certiorari — MacDonald v. United States

a)

90-8 45

or eter ci

IN THE aa ;

Supreme Court of the United States

October Term 1990

ERROL MacDONALD,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

BARRY M. FALLICK, ESQ.

Counsel of Record

ROCHMAN PLATZER |

FALLICK & ROSMARIN :

Attorneys for Petitioner

666 Third Avenue, 17th Floor

New York, New York 10017

(212) 697-4090

BOBBI C. STERNHEIM, ESQ.

On Petition

Dick Bailey Appellate Printers > Tel.: 1-800-564-4918 <<

(212) 608-7666 — (718) 447-5358 — (516) 222-2470 — (914) 682-0848

Fax Number: (718) 273-8031

i

QUESTIONS PRESENTED

1. Whether probable cause for belief that there is

Ongoing narcotics trafficking in a private dwelling can

alone provide for a warrantless entry pursuant to the ex-

igent circumstances exception to the warrant requirement

of the Fourth Amendment.

2. Whether law enforcement agents who have actual

knowledge of ongoing narcotics trafficking within a

private dwelling can create exigent circumstances to avoid

the Fourth Amendment warrant requirements.

li

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

United States v. Thomas, 893 F.2d 482 (2d Cir. 1990)...2-3

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IN THE

Supreme Court of the Wnited States

October Term 1990

ERROL MacDONALD,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals is reported at

893 F.2d 482. The in banc opinion of the Court of Ap-

peals is not yet reported but is reproduced in the appendix

to the petition in this case.

JURISDICTION

The judgment of the Court of Appeals on in banc

consideration was entered on October 1, 1990. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Indictment S 88 Cr. 661 was filed in two counts on

January 5, 1989. Count One charged that on September 8,

1988, Errol MacDonald and co-defendant Paul Thomas

possessed with intent to distribute approximately 443

2

grams of cocaine, in violation of Title 21, United States

Code, Section 812, (a\(1), and 841(b)(1)(c), and Title

18, United States C 2, Section 2. Count Two charged

that on September 8, 1988, MacDonald and Thomas each

used or carried a firearm during and in relation to a drug

trafficking crime, namely, possession with intent to

distribute cocaine and marihuana, in violation of Title 18,

United States Code, Section 924(c) and 2.

MacDonald moved prior to trial to suppress evidence

recovered from Apartment 1-0, 321 Edgecombe Avenue,

New York, New York, on the ground that agents had

entered the apartment on the evening of September 8,

1988, without a warrant. Following a suppression hear-

ing, the district court denied MacDonald’s motion, find-

ing that exigent circumstances justified the warrantless en-

try.

Trial commenced on January 9, 1989, and concluded

on January 18, 1989, when the jury returned verdicts of

guilty against MacDonald and Thomas on both counts of

the Indictment. On May 19, 1989, Judge Ward sentenced

MacDonald to a term of imprisonment of 51 months on

Count One and to the mandatory consecutive five-year

term of imprisonment required by 18 U.S.C. %924(c) on

Count Two. Judge Ward also imposed on MacDonald a

five-year term of supervised release, to be served following

the completion of his prison term.

Following his conviction at trial, during which the

Government introduced evidence recovered from Ap=2tt-

ment 1-0, MacDonald appealed, challenging, inter alia,

the district court’s decision on his suppression motion. A

majority of a panel of the Court of Appeals held that the

district court’s finding that exigent circumstances justified

the warrantless entry was clearly erroneous. United States

3

v. Thomas, 893 F.2d at 488. Judge Kearse’s opinion for

the Court, joined by Chief Judge Oakes, stated that the

record ‘‘did not show any facts, prior to the agents’ an-

nouncement of their presence as police officers, that ob-

jectively raised any likelihood of imminent flight, destruc-

tion of evidence, transfer of evidence, or violence.’’ Jd. at

489. The majority observed that the operators of the nar-

cotics business, which had apparently been ongoing since

May of 1988, had not likely been alerted to the agents’

presence, given the agents’ ‘‘inconspicuous’’ surveillance

and their ‘‘circumspect’’ questioning of visitors to the

apartment. Jd. The majority further said that until the

agents knocked on the apartment door, ‘‘there was no

basis whatever to believe the occupants would engage in

anything other than business as usual.’’ Jd. The fact that,

in this case, ‘‘business as usual’’ involved ongoing

weapons and narcotics offenses was not, in the majority’s

view, sufficient to establish an urgent need to enter the

apartment. Jd. Finally, the panel determined that any ex-

igency had been deliberately created by the agents as a

pretext to gain entry without a warrant. JZ. at 489-90.

On April 10, 1990, the Court of Appeals granted en

banc review of the suppression issue. On in banc con-

sideration, the Court of. Appeals reversed the Panel deci-

sion in United States v. Thomas, supra, and affirmed the

judgment of conviction entered in the district court.

In the dissent’s view, the majority ruling gave ‘‘law

enforcement officials broad license to enter premises

without a valid warrant.’’ The dissent noted that probable

cause to believe that narcotics were veing sold in the apart-

ment is not the equivalent of exigency and that law en-

forcement agents cannot deliberately create an exigency by

knocking on the door and identifying themselves to justify

a warrantless exigency.

4

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW RAISES SIGNIFICANT

QUESTIONS OF WHETHER THE FOURTH AMEND-

MENT’S WARRANT REQUIREMENT APPLIES IN

NARCOTICS CASES.

In this case, the most troubling aspect of the in banc

majority opinion is the obliteration of the Fourth Amend-

ment’s warrant requirement. The dissent noted that ‘‘the

majority ruling today was law enforcement officers broad

license to enter premises without a warrant. Apparently,

they need no more than to have probable cause for belief

that there is ongoing narcotics trafficking within and to re-

quest entry.’’ Until this opinion, the precedents have not

approved of warrantless entries due to the type of crime or

because of the presence of weapons.

in sum, while narcotics trafficking is a grave offense

and a serious national problem, the constitutional protec-

tions afforded to all should be scrupulously adhered to.

s

CONCLUSION

For all of the reasons contained herein, and in the

petition, a writ for certiorari should be granted.

Respectfully submitted,

BARRY M. FALLICK, ESQ.

Counsel of Record

ROCHMAN PLATZER

FALLICK & ROSMARIN

Attorneys for Petitioner

666 Third Avenue, 17th Floor

New York, New York 10017

(212) 697-4090

BOBBI! C. STERNHEIM, ESQ.

On Petition

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

~~ ~ =e

No. 277—August Term, 1989

(Argued before the Jn Banc Court: June 25, 1990

Decided: October 1, 1990)

Docket Nos. 89-1262, -1263

<>

UNITED STATES OF AMERICA,

Appellee,

—_—V/V—

ERROL MACDONALD,

Defendant-Appellant.

Before:

OAKES, Chief Judge,

FEINBERG, MESKILL, NEWMAN, KEARSE,

CARDAMONE, WINTER, PRATT, MINER, ALTIMARI,

MAHONEY and WALKER, Circuit Judges.

>

Appeal from judgment entered in the United States

District Court for the Southern District of New York

(Ward, J.), following jury trial, convicting defendant of

possession with intent to distribute cocaine in violation

2a

of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C), and 18

U.S.C. § 2, and use of a firearm in connection with nar-

cotics trafficking in violation of 18 U.S.C. §§ 924(c) and

2. A divided panel of this Court concluded that the dis-

trict court erred when it found that a warrantless entry

by law enforcement agents into a Manhattan apartment

was justified on the ground of the exigent circumstances

exception to the Fourth Amendment warrant require-

ment.

On in banc consideration, the panel decision is

vacated, and the judgment entered in the district court is

affirmed.

Judge Kearse dissents in a separate opinion, joined by

Chief Judge Oakes and Judge Feinberg.

aa

NOAH LIPMAN, ESQ., New York, N.Y., for

Defendant-Appellant.

STEPHEN FISHBEIN, ESQ., Assistant United

States Attormey, New York, N.Y. (Otto

G. Obermaier, Esq., United States

Attorney for the Southern District of

New York, Kerri Martin Bartlett, Esq.,

Assistant United States Attorney, New

York, N.Y., of counsel), for Appellee.

~~

ALTIMARI, Circuit Judge:

We granted rehearing in banc to consider (1) whether

a warrantless entry was lawful pursuant to the exigent

3a

circumstances exception to the warrant requirement of

the Fourth Amendment, and if so, (2) whether law

enforcement agents improperly created the exigent cir-

cumstances. These issues arise from defendant Errol

MacDonald’s appeal from a judgment entered in the

United States District Court for the Southern District of

New York (Robert J. Ward, Judge) convicting Mac-

Donald, after a jury trial, of possession with intent to

distribute cocaine in violation of 21 U.S.C. §§ 812,

841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2, and of the

use of a firearm in connection with a narcotics offense

in violation of 18 U.S.C. §§ 924(c) and 2.

A divided panei of this Court reversed Judge Ward’s

finding that exigent circumstances justified a warrantless

entry by law enforcement agents into a Manhattan

apartment from which MacDonald and his associates

operated a retail drug outlet, and remanded for the pur-

pose of determining MacDonald’s standing to assert the

Fourth Amendment claim. See United States v. Thomas,

893 F.2d 482 (2d Cir. 1990). On in banc consideration,

we agree with Judge Ward. We therefore vacate the

decision of the panel and affirm the judgment of convic-

tion entered in the district court.’

BACKGROUND

The facts are undisputed, and we shall summarize

only what is pertinent to the exigent circumstances issue.

In May 1988, an informant alerted the New York

Drug Enforcement Task Force (‘‘Task Force’’) of a pos-

1 On this in banc consideration, we reverse the pane! decision in

United States v. Thomas, supra, only with respect to defendant Mac-

Donald. The panel's decision to affirm the conviction of codefendant

Thomas was unanimous, and is not before us.

4a

sible narcotics operation utilizing two apartments in a

Manhattan apartment building located at 321 Edge-

combe Avenue. On the evening of September 8, 1988,

agents of the Task Force established surveillance outside

the apartment building. The agents observed numerous

indications that a retail narcotics exchange was being

operated out of Apartment 1-O, a one-room efficiency

on the first floor.

Shortly before ten o’clock that evening, one of the

agents of the Task Force, James Agee, went to Apart-

ment 1-O in an attempt to transact an undercover pur-

chase of narcotics. After knocking and being admitted

by an unidentified man, Agent Agee encountered Paul

Thomas, who was sitting in a chair next to the door and

pointing a cocked 9 mm. semi-automatic weapon at the

floor, but in Agee’s direction. Defendant Errol Mac-

Donald, who was sitting on a couch counting a stack of

money, was within easy reach of a .357 magnum

revolver. There were four other men, including the man

who admitted Agee, in the apartment which contained

large quantities of what appeared to Agee to be mari-

juana and cocaine. Agee detected the distinct odor of

marijuana smoke. He handed the unidentified doorman

a prerecorded five dollar bill in return for a package of

marijuana. Agee then immediately left the building and

reported his observations to the other Task Force mem-

bers waiting outside.

Approximately ten minutes after the controlled pur-

chase, Agee returned to the apartment with reinforce-

ments. After knocking on the door and identifying

themselves, the agents heard the sounds of shuffling

feet. They also simultaneously received a radio commun-

ication from agents remaining outside the building

Sa

informing them that the occupants of the first floor

apartment were attempting to escape through a bath-

room window. The agents at the apartment door then

used a battering ram to force entry.

The agents arrested five men in the apartment, four in

the bathroom and one hiding in a closet. As they per-

formed a security sweep of the apartment, they discov-

ered in plain view the two loaded weapons, large

quantities of cocaine and marijuana, narcotics parapher-

nalia, packaging materials and several thousand dollars

in cash. Additional cash was recovered from the persons

of the suspects. The unidentified sixth man, who only

ten minutes earlier actually transacted the sale with

Agee, had apparently escaped.

At a pretrial hearing, MacDonald moved to exclude

the evidence recovered from Apartment 1-O. He main-

tained that the seizure of the physical evidence violated

his Fourth Amendment right, since the agents entered

the apartment without a warrant. The district court,

however, denied the motion to suppress on the ground

that exigent circumstances justified the warrantless

entry. The district court first pointed to the gravity of

the offenses involved and concluded that the ‘‘[pjresence

of the narcotics and the weapons under the circum-

stances suggested that the defendants were engaged in

ongoing criminal activities and were in a position to use

the weapons thereby creating an emergency situation

justifying immediate entry.’’ The district court further

found tha: the law enforcement agents’ warrantless

entry was justified by the need to prevent loss of evi-

dence. The court noted that the agents had been

informed that the suspects utilized at least one other

apartment in the building and could easily have moved

6a

the contraband out of Apartment 1-O. The court also

reasoned that ‘‘once the agents had knocked on the

door and identified themselves, and the door was not

opened, any delay in arresting the suspects would be

likely to result in the destruction of evidence, particu-

larly the cocaine, which could be disposed of easily, by

being flushed down the bathroom toilet.’’ Finally, the

district court found that obtaining a warrant at approxi-

mately ten o’clock at night ‘‘would have taken a matter

of hours, thereby increasing the risk that evidence would

be lost or destroyed.’’

Following his conviction after a jury trial, MacDonald

appealed the district court’s decision not to exclude the

evidence. A majority of a panel of this Court reversed

the district court, holding that the finding of exigent cir-

cumstances was clearly erroneous and that any exigency

that may have existed after the agents knocked at the

door was created by the pretextual conduct of law

enforcement agents returning to the apartment and iden-

tifying themselves at the door. The panel remanded the

matter to the district court for the purpose of determin-

ing whether MacDonald had standing to assert the claim

under the Fourth Amendment. We then accepted the

Government’s suggestion to reconsider this case in banc.

DISCUSSION

The warrant requirement of the Fourth Amendment

guarantees the fundamental right to be free from gov-

ernment intrusion into the privacy of one’s home. See

Payton v. New York, 445 U.S. 573, 585-86, 589-90

(1980); Johnson v. United States, 333 U.S. 10, 13-14

(1948); Boyd v. United States, 116 U.S. 616, 630 (1886).

It is well-settled, however, that the warrant requirement

7a

must yield in those situations where exigent circum-

stances demand that law enforcement agents act without

delay. See Warden v. Hayden, 387 U.S. 294, 298-99

(1967); United States v. Crespo, 834 F.2d 267, 270-71

(2d Cir. 1987), cert. denied, 485 U.S. 1007 (1988). The

instant case affords us the opportunity to revisit the exi-

gent circumstances exception to the warrant require-

ment.

We begin by noting the appropriate standards of

review. A district court’s determination as to whether

exigent circumstances existed is fact-specific, and will

not be reversed unless clearly erroneous. United States

v. Cattouse, 846 F.2d 144, 146 (2d Cir.), cert. denied,

109 S. Ct. 316 (1988); see Minnesota v. Olson, 110 S.

Ct. 1684, 1690 (1990) (showing deference to the state

court’s ‘‘fact-specific’’ finding of exigent circumstances).

Moreover, the test for determining whether a warrant-

less entry is justified by exigent circumstances is an

objective one that turns on the district court’s examina-

tion of the totality of circumstances confronting law

enforcement agents in the particular case. See United

States v. Schaper, 903 F.2d 891, 894 (2d Cir. 1990);

United States v. Miles, 889 F.2d 382, 383 (2d Cir. 1989)

(per curiam); United States v. Zabare, 871 F.2d 282,

290-91 (2d Cir.), cert. denied, 110 S. Ct. 161 (1989).

The essential question in determining whether exigent

circumstances justified a warrantless entry is whether

law enforcement agents were confronted by an ‘“‘urgent

need’’ to render aid or take action. Dorman v. United

States, 435 F.2d 385, 3°‘ (D.C. Cir. 1970) (in banc)

(quoted in United States v. Martinez-Gonzalez, 686 F.2d

93, 100 (2d Cir. 1982), and Crespo, 834 F.2d at 270).

We have adopted the factors set out in Dorman, 435

8a

F.2d at 392-93, as guideposts intended to facilitate the

district court’s determination. See United States v. Reed,

§72 F.2d 412, 424 (2d Cir.), cert. denied, 439 U.S. 913

(1978); see also United States v. Standridge, 810 F.2d

1034, 1037 (11th Cir.) (per curiam), cert. denied, 481

U.S. 1072 (1987); United States v. Baldacchino, 762

F.2d 170, 176 (Ist Cir. 1985); United Staies v. Kulcsar,

586 F.2d 1283, 1287 (8th Cir. 1978); United States v.

Phillips, 497 F.2d 1131, 1135 (9th Cir. 1974); United

States v. Shye, 492 F.2d 886, 891 (6th Cir. 1974) (per

curiam); Vance v. North Carolina, 432 F.2d 984, 990

(4th Cir. 1970). The Dorman factors have been summa-

rized as follows:

(1) the gravity or violent nature of the offense with

which the suspect is to be charged; (2) whether the

suspect ‘‘is reasonably believed to be armed’’; (3)

‘fa clear showing of probable cause . . . to believe

that the suspect committed the crime’’; (4) ‘‘strong

reason to believe that the suspect is in the premises

being entered’’; (5) ‘‘a likelihood that the suspect

will escape if not swiftly apprehended’’; and (6) the

peaceful circumstances of the entry.

Reed, 572 F.2d at 424 (quoting Dorman, 435 F.2d at

392-93). We have consistently emphasized that the Dor-

man factors are intended not as an exhaustive canon,

but as an illustrative sampling of the kinds of facts to be

taken into accoumt. See Crespo, 834 F.2d at 270;

Martinez-Gonzalez, 686 F.2d at 100. Sometimes the

presence of a solitary factor suffices, see, e.g., United

States v. Gallo-Roman, 816 F.2d 76, 79-80 (2d Cir.

1987) (destruction of evidence), alternatively, a combina-

tion of several, see, e.g., United States v. Callabrass,

607 F.2d 559, 563-64 (2d Cir. 1979), cert. denied, 446

9a

U.S. 940 (1980) (destruction of evidence and danger to

public).

Applying the Dorman factors to the case at hand, the

district court’s determination was far from clearly erro-

neous. The following facts were ascertained by the dis-

trict court at the pretrial suppression hearing. First, the

ongoing sale and distribution of narcotics constituted a

grave offense. Second, the defendant and at least one of

his associates were armed with loaded, semi-automatic

weapons. Third, the law enforcement agents had not

only probable cause to suspect that a crime had been

perpetrated but firsthand knowledge that ongoing crimes

were transpiring. Fourth, the agents further knew that

the defendant and his associates were in the apartment.

Fifth, the likelihood that a suspect might escape if not

swiftly apprehended was confirmed by the fact that the

man who actually made the sale to Agent Agee had

apparently escaped during the ten-minute interval that

elapsed after the controlled purchase and before the

agents entered the apartment. Sixth, the agents acted in

accordance with the law, and first attempted to effect a

peaceful entry by knocking and announcing themselves.

Since all of the Dorman factors were present, we agree

with Judge Ward that the law enforcement agents’ entry

was justified. Indeed, ‘‘[uJnder the circumstances of this

case, ‘the exigencies of the situation made that course

imperative.’ ’’ Warden v. Hayden, 387 U.S. at 298

(quoting McDonald v. United States, 335 U.S. 451, 456

(1948)). :

Not only was each of the Dorman factors fulfilled in

the instant case, but several other factors are relevant.

See Martinez-Gonzalez, 686 F.2d at 100. As the district

court correctly determined, the volatile mix of drug

10a

sales, loaded weapons and likely drug abuse presented a

clear and immediate danger to the law enforcement

agents and the public at large. See Olson, 110 S. Ct. at

1690; Cattouse, 846 F.2d at 146-48; United States v.

Farra, 725 F.2d 197, 199 (2d Cir. 1984). In addition, the

district court’s finding that the agents were confronted

by an urgent need to prevent the possible loss of evi-

dence cannot be said to be clearly erroneous in light of

the information that the suspects were using an unidenti-

fied apartment in the building to store narcotics, the

ease with which the suspects could have disposed of the

cocaine by flushing it down the toilet, and the possibility

that the prerecorded five dollar bill used by Agent Agee

in the undercover buy would be lost if the ongoing drug

transactions were permitted to continue while the agents

sought a warrant. See Miles, 889 F.2d at 383; United

States v. Campbell, 581 F.2d 22, 26 (2d Cir. 1978).

Finally, the dangers of harm to law enforcement agents

and the public, of the loss of evidence and of the escape

of the suspects were aggravated by the additional time

required for, and the impracticability of, obtaining a

warrant at the late hour of day, while the apartment

continued to be used as a retail drug outlet. See Farra,

725 F.2d at 199; Campbell, 581 F.2d at 26-27.

Consistent with well-settled law, the district court

found that once the undercover agent had firsthand

knowledge of the suspects’ undertakings inside the

apartment, exigent circumstances were present. The dis-

trict court further found that the exigency was intensi-

fied when, ten minutes after the controlled buy, law

enforcement agents knocked on the apartment door and

announced themselves. At this point the agents heard

the sound of shuffling of feet from inside the apartment

and simultaneously received a radio transmission that

lla

the suspects were attempting to flee through a window

of the first floor apartment. The defendant, however,

contends that the agents intentionally created the exi-

gency to circumvent the warrant requirement. We are

unpersuaded by this argument for several reasons.

First, even if the agents had engaged in pretextual

conduct by knocking and announcing themselves, the

district court’s finding that exigent circumstances existed

prior to the knocking cannot be said to be clearly erro-

neous. Consequently, the warrantless entry was fully

justified on the grounds of the prior existing exigent cir-

cumstances alone. Additionally, there is no doubt that

the agent who made the undercover purchase would

have been entitled to arrest the suspects in the apartment

at the time of the purchase. A controlled purchase of

narcotics by an undercover law enforcement agent ‘‘is a

recognized and permissible means of investigation’’

employed to gather evidence of illegal conduct and to

make lawful arrests. United States v. Russell, 411 U.S.

423, 432 (1973). See also United States v. Asencio, 873

F.2d 639, 641 (2d Cir. 1989) (even where agents are

involved in selling narcotics in the course of en under-

cover operation subsequent conviction of defendant may

be sustained). It follows that the undercover agent here

did not need a warrant to reenter the apartment within

ten minutes, having exited only to secure proper protec-

tion by obtaining reinforcements. This is not the kind of

scenario that needs the detached judgment of a neutral

magistrate to determine whether there is probable cause

tor an arrest and search. See Arkansas v. Sanders, 442

U.S. 753, 759 (1979).

Most importantly, the agents’ conduct was perfectly

proper. By knocking and announcing themselves, they

12a

acted in accordance with the law, attempting the

**peaceful entry’’ contemplated in Dorman, 435 F.2d at

393. See Miller v. United States, 357 U.S. 301, 313

(1958) (the requirement of notice before forcing entry is

a tradition deeply rooted in Anglo-American common

law). See also 18 U.S.C. § 3109 (establishing a notice

requirement in executing a warrant); United States v.

Little, 753 F.2d 1420, 1435 (9th Cir. 1984) (notice

requirement provides protection from violence, safe-

guards individual privacy and protects against needless

destruction of private property); cf. United States v.

Spinelli, 848 F.2d 26, 29 (2d Cir. 1988) (exigent circum-

stances may sometimes justify noncompliance with

notice requirement). Exigent circumstances are not to be

disregarded simply because the suspects chose to

respond to the agents’ lawful conduct by attempting to

escape, destroy evidence, or engage in any other unlaw-

ful activity. The fact that the suspects may reasonably

be expected to behave illegally does not prevent law

enforcement agents from acting lawfully to afford the

Suspects the opportunity to do so. Thus, assuming

arguendo that there were no exigent circumstances

before the knock, the agents’ conduct did not impermis-

sibly create the circumstances occurring thereafter.

The argument that law enforcement agents created

exigent circumstances in bad faith has been rejected in

numerous other contexts. We have previously reasoned

that agents did not intentionally design exigent circum-

stances by using: (1) an all white surveillance team in a

predominantly black neighborhood, and thus exposing

the agents to a great risk of detection, Cattouse, 846

F.2d at 147, 148; (2) marked buy money in a controlled

drug deal, and thus compelling the agents to act imme-

diately lest the money be dissipated, id.; and (3) coun-

13a

terfeit tickets marked void, and thus endangering the

lives of agents and occasioning the possibility of destruc-

tion of evidence when the suspect unwrapped the pack-

aze and discovered the markings, Zabare, 871 F.2d at

290. The United States Court of Appeals for the First

Circuit has held that a deceptive telephone call by agents

advising the occupants of a motel room to vacate since

their associates in a narcotics deal had been arrested was

‘*a creative investigative effort and simply an example of

good police work’’ rather than an impermissible effort

to circumvent the arrest warrant requirement. United

States v. Rengifo, 858 F.2d 800, 803 (Ist Cir. 1988),

cert. denied, 109 S. Ct. 1752 (1989).

The defendant asserts that United States v. Segura,

663 F.2d 411, 415 (2d Cir. 1981), aff'd on other

grounds, 468 U.S. 796 (1984), betokens a contrary result

here. It is, therefore, appropriate to revisit Segura and

to make several clarifications. First, the facts of Segura

are distinguishable from those of the case at hand. In

that case, agents brought a suspect under arrest to the

front door, displayed him to the occupants, and then

sought to rely on the scurrying that occurred as an exi-

gency to enter. That kind of contrived behavior on the

part of law enforcement agents is far different than the

agents’ compliance with the law involved here.

In addition, Segura ought not to be understood to

suggest that a district court in reaching a determination

about exigent circumstances should attribute any signifi-

cance to the subjective state of mind of law enforcement

agents. As previously mentioned, we have repeatedly

held that the determination of exigent circumstances is

an objective one based on the totality of the circum-

stances confronting law enforcement agents. See

l4a

Schaper, 903 F.2d at 894; Miles, 889 F.2d at 383;

Zabare, 871 F.2d at 291. The Supreme Court’s recent

decision in Horton v. California, 110 S. Ct. 2301 (1990),

confirms our approach. Rejecting the inadvertence

requirement for a valid plain view seizure, the Court

explained:

The fact that an officer is interested in an item of

evidence and fully expects to find it in the course cf

a search should not invalidate its seizure if the

search is confined in area and duration by the terms

of a warrant or a valid exception to the warrant

requirement.

Id. at 2309. So here, the fact that the agent may be

‘‘interested’’ in having the occupants react in a way that

provides exigent circumstances and may ‘‘fully

expect[ ]’’ such a reaction does not invalidate action that

is otherwise lawful. We simply shall not engage in futile

speculation as to whether the agents actually expected

the suspects to respond lawfully to their knock at the

door. The fact that the agents brought along a battering

ram changes nothing. The exigent’ circumstances known

to the agents before they knocked sufficiently alerted

them to the possibility that a forced entry would be nec-

essary.

Finally, the holding in Segura was based or wie prin-

ciple articulated in United States v. Allard, 634 F.2d

1182, 1187 (9th Cir. 1980), that law enforcement agents

may not create their own exigencies ‘‘through illegal

conduct.’’ To the extent that Segura may be interpreted

to extend this underlying rationale beyond illegal con-

duct, we repudiate such an expansive approach. There-

fore, we hold that when law enforcement agents act in

an entirely lawful manner, they do not impermissibly

1Sa

create exigent circumstances. Law enforcement agents

are required to be innocent but not naive.

The defendant also argues that narcotics-related

crimes so frequently involve exigent circumstances that

the exception threatens to eviscerate the rule. Our clari-

fication of the exigent circumstance exception is not

intended to diminish in any respect the guarantees of the

Fourth Amendment. The general rule prohibiting war-

rantless intrusions into the home perdures. See Cattouse,

846 F.2d at 148. If it is true that ongoing retail narcotics

operations often confront law enforcement agents with

exigent circumstances, we fail to see how such a sad

reality constitutes a ground for declaring that the exigen-

cies do not, in fact, exist. To disallow the exigent cir-

cumstances exception in these cases would be to tie the

hands of law enforcement agents who are entrusted with

the responsibility of combatting grave, ongoing crimes

in a manner fully consistent with the constitutional pro-

tection afforded to all citizens.

CONCLUSION

In summation, numerous factors support Judge

Ward’s conclusion that exigent circumstances justified

the warrantless entry. Those factors include: (1) the

grave nature of the ongoing crimes; (2) the presence of

loaded weapons; (3) a likelihood that the suspects were

themselves using narcotics; (4) a clear and immediate

threat of danger to law enforcement agents and to the

public at large; (5) not only more than the minimum

probable cause to believe, but actual knowledge, that

the suspect committed the crime; (6) at least strong rea-

son to believe the suspects were on the premises; (7) a

likelihood turned to reality that a suspect might escape

16a

if not quickly apprehended; (8) an urgent need to pre-

vent the loss of evidence; (9) the additional time

required to obtain a warrant at the late hour of day;

and (10) an attempt by the agents to enter peacefully. In

addition, the lawful conduct of the law enforcement

agents did not impermissibly trigger the exigent circum-

stances exception to the warrant requirement of the

Fourth Amendment.

For all the above mentioned reasons, the decision of

the original panel is vacated, and the judgment of con-

viction entered in the district court is affirmed.

KEARSE, Circuit Judge (joined by OAKES, Chief Judge,

and FEINBERG, Circuit Judge), dissenting:

I respectfully dissent. In my view the record does not

support the finding that, prior to the agents’ return to

the apartment and identification of themselves as police

officers, there were exigent circumstances justifying a

warrantless entry. There is of course some common

ground between my views and those of the majority.

Plainly there was probable cause, and I agree that even-

tually the circumstances became exigent. But probable

Cause is not the equivalent of exigency, and I cannot

endorse what I view as the agents’ deliberate creation of

an exigency in order to circumvent the warrant require-

ment of the Fourth Amendment.

The Lack of Exigency Prior to the Officers’ Return

There is no doubt that there was probable cause to

believe that narcotics were being sold in apartment 1-O.

17a

The government concedes that it had probable cause at

least as of the time, some 30 minutes prior to the forced

entry, when the agents interrogated persons who had

just been in the apartment; and the observations of

Agent Agee during his undercover buy of course added

to the probable cause. But, notwithstanding the majori-

ty’s apparent view to the contrary, see ante at 11

(‘‘[c]onsistent with well-settled law, the district court

found that once the undercover agent had firsthand

knowledge of the suspects’ undertakings inside the

apartment, exigent circumstances were present’’), proba-

ble cause is not tantamount to exigent circumstances. I

know of no law, settled or otherwise, that mere first-

hand knowledge of a crime constitutes exigent circum-

stances permitting a warrantless entry.

Nor do I agree with the majority’s view that the war-

rantless entry was justified by exigent circumstances on

the ground that Agee could lawfully have arrested the

occupants of the apartment when he was there during

the undercover buy. Having probable cause for arrest,

Agee could indeed have arrested them lawfully at that

point, but that power was unrelated to any exigent cir-

cumstances; he could have arrested them then because

he was lawfully in the apartment by reason of their con-

sent. See Payton v. New York, 445 U.S. 573, 576

(1980); Draper v. United States, 358 U.S. 307 (1959).

Consent and exigent circumstances are separate excep-

tions to the warrant requirement and should not be con-

fused. Further, consent is not boundless, see State v.

Douglas, 123 Wis.2d 13, 365 N.W.2d 580, 584 (1985)

(implied consent to enter to render emergency assistance

did not constitute authorization for second entry two

days later); cf. United States v. Dichiarinte, 445 F.2d

126, 129 (7th Cir. 1971) (‘‘a consent search is reasonable

18a

only if kept within the bounds of the actual consent’’),

and there is no basis for inferring that the occupants’

consent to Agee’s first entry extended to his later return.

If such consent as was given is an appropriate justifica-

tion for the entry in this case, it is difficult to see that

today's decision does not give an agent license, when-

ever he has gained admission to the premises to make an

undercover purchase, to leave and return bringing in his

troops without need for a warrant.

In concluding that there were exigent circumstances

before the agents returned to the apartment and made

the suspects aware of their official presence, the major-

ity emphasizes 10 factors that in its view support the dis-

trict court's ruling. In my view its analysis is flawed.

‘T)he burden is on the government to demonstrate

exigent circumstances that overcome the presumption of

unreasonableness that attaches to al! warrantless home

entries,’’ Welsh vy, Wisconsin, 466 U.S. 740, 750 (1984),

and the burden is a heavy one. This Court has repeat-

edly noted that no single fact is dispositive and that the

ultimate question, to be answered in light of the totality

of the circumstances, is whether law enforcement agents

were confronted by an ‘‘urgent need’’ to make immedi-

ate entry. United States v. Crespo, 834 F.2d 267 (2d Cir.

1987), cert. denied, 485 U.S. 1007 (1988); United States

vy. Martinez-Gonzalez, 686 F.2d 93 (2d Cir. 1982);

United States v. Reed, 572 F.2d 412 (2d Cir.), cert.

denied, 439 U.S. 913 (1978); Dorman v. United States,

435 F.2d 385 (D.C. Cir. 1970).

We have not upheld warrantless entries where agents

lacked an objective basis—other than their own actions

unnecessarily alerting the defendants to their presence—

to believe there was an urgent need to enter the premises

19a

without waiting to obtain a warrant. Thus, in United

States v. Reed, 572 F.2d 412 (2d Cir.), cert. aenied, 439

U.S. 913 (1978), we ruled that there were no exigent cir-

cumstances where the officers had made purchases from

the targeted defendants some 2-1/2 months earlier and

had had no contact with them since:

{[I]nasmuch as the DEA Agents had no contact

whatsoever with Reed or Goldsmith for two and

one-half months prior to their arrest, and since

there is no suggestion of a change in the status of

the investigation during that period, we cannot con-

clude that exigent circurnstances were present.

Id. at 424-25,

In United States v. Agapito, 620 F.2d 324 (2d Cir.),

cert. denied, 449 U.S. 834 (1980), we invalidated a war-

rantless entry into a hotel room, which the government

argued had been necessary in order to prevent the

destruction of evidence. We noted that the only persons

the agents had seen enter or leave the room during two

days of surveillance had been arrested in the hotel

lobby, 17 floors below the room, and that

even if the agents here thought that accomplices

remained in the room, there was no reason for

them to believe that the accomplices knew of the

arrests so that they might destroy evidence... .

Id. at 336. We thus reversed the district court’s denial of

defendants’ suppression motion since the circumstances

were not exigent.

In United States v. Segura, 663 F.2d 411 (2d Cir.

1981), aff’d on other grounds, 468 U.S. 796 (1984), we

upheld the district court’s finding that the circumstances

were not exigent where the police had been able safely

20a

to conduct surveillance of an apartment for three hours,

had arrested one of the defendants at the front door of

the building which ‘‘could not have been observed from

{the apartment], and there was no evidence that anyone

saw the arrest and reported it to the inhabitants of [the

apartment].’’ Jd. at 415. The agents had proceeded to

create an exigency by dragging the arrested defendant to

the apartment and banging on the door. We declined to

‘‘permit[ ] the agents to ‘create their own exigencies

. . and then ‘‘secure’’ the premises on the theory that

the occupants would otherwise destroy evidence.’ ’’ Jd.

(quoting United States y. Allard, 634 F.2d 1182, 1187

(9th Cir. 1980)); see United States v. Rosselli, 506 F.2d

627, 630 (7th Cir. 1974).

The principal factor relied on by the majority in the

present case to reach the conclusion that there was an

urgent need to enter without a warrant is that narcotics

trafficking is a grave offense. Indeed it is; but though

certain types of crimes, such as attempted murder or

arson, create an inherent exigency while in progress,

narcotics trafficking is not of that genre. There has

never been an exigent circumstances exception permit-

ting a warrantless entry simply because the offense

involves narcotics. Nor was an exigency created in the

present case by the fact that there were firearms in the

apartment. ‘‘We often have taken judicial notice that, to

substantial dealers in narcotics, firearms are as much

tools of the trade as are the commonly recognized artic-

les of narcotics paraphernalia.’’ United States v. Crespo,

834 F.2d 267, 271 (2d Cir. 1987), cert. denied, 485 U.S.

1007 (1988). Accord United States v. Torres, 901 F.2d

205, 235 (2d Cir. 1990) (“‘tools of the trade’’); United

States v. Premises & Property at 4492 South Livonia

Rd., 889 F.2d 1258, 1269 (2d Cir. 1989) (same); United

2la

States v. Rivera, 844 F.2d 916, 926 (2d Cir. 1988)

(same); United States v. Fernandez, 829 F.2d 363, 367

(2d Cir. 1987) (per curiam) (same). Thus, emphasis on

the presence of firearms for the view that the circum-

stances were exigent suggests that whenever there is

probable cause to believe that narcotics offenses are

being committed, the agents should be allowed to ignore

the warrant requirement.

The majority’s concern that the agents and the public

were in danger appears to be premised on the presence

of firearms in the apartment and the generally violent

nature of the narcotics trafficking business. (The sugges-

tion that the suspects themselves had likely been smok-

ing marijuana in the apartment goes beyond the record.

Agee testified that he had smelled marijuana smoke but

that he did not see any of the suspects smoking.) There

is of course an inherent danger when crime is ongoing

and the perpetrators wish (a) to continue and (b) to

escape capture. This danger is not of emergency propor-

tions, however, when the perpetrators are unaware that

they are under suspicion, especially where they have not ©

taken such security precautions as posting lookouts.

The total lack of awareness by the suspects in the

present case, prior to the agents’ return to the apart-

ment, is virtually ignored by the majority. Thus, in con-

cluding that there was a likelihood that the suspects

would escape and evidence would be destroyed, the

majority apparently sees no significance in the fact that

this operation had been ongoing in apartment 1-O since

May, i.e., some four months before the agents’ surveili-

lance, and that there was no reason to believe it would

be moved. (The fact that the suspects had a second

apartment in the building did not suggest that the nar-

22a

cotics seen by Agee would likely be moved out of 1-O.

The government’s informant said she had seen narcotics

stored in both apartments, not that there was a shifting

Or compartmentalized operation.) There was no basis

for believing that the occupants of the apartment had

been alerted to the September 8 surveillance prior to the

agents’ announcement of their official presence. The

agents had received no information and had seen no

indication that the suspects had any kind of security

devices in the apartment or had posted any lookouts in

the area. The surveillance was conducted by a team of

agents whose ethnic makeup matched that of the civil-

ians coming and going in the neighborhood. The surveil-

lance was inconspicuous; the building was large, and

there was a good deal of traffic in and out with respect

to apartments other than 1-O; the agents’ vehicles were

placed so circumspectly that even Agee did not know

where those other than his own were parked. An agent

followed Agee into the building when he made his con-

trolled buy, and was so discreet that even Agee could

not spot him.

The surveilling agents’ questioning of visitors to

apartment 1-O was likewise circumspect. They interro-

gated the occupants of only one car, which they took

care not to intercept until it was several blocks away

from the building and could not be seen by the suspects.

Nor did anything that occurred during Agee’s subse-

quent purchase appear to alert the suspects. Agee testi-

fied: that none of the occupants of the apartment knew

who he was. He had never seen any of them before.

There was simply nothing in the record to suggest that

the suspects would suddenly, after at least four months

of operation, start to destroy their business assets, nor

any indication that a suspect who left the apartment

23a

(which was apparently used more as a stash pad than as

a residence) was somehow ‘“‘escap[ing],’’ see, e.g., ante

at 9, rather than leaving temporarily.

Finally, though the majority also relies on the diffi-

culty that the agents would have had in obtaining a

search warrant speedily because of the lateness of the

hour at which they entered, I do not believe the govern-

ment met its burden of showing that the timing was a

permissible justification. Agee testified that there was

never any discussion whatever of the possibility of

obtaining a warrant. Further, the government concedes

that the agents had probable cause to obtain a warrant

at least a half-hour before their forced entry, i.e., as of

the time they obtained statements from persons who had

just come from the apartment, confirming the agents’

existing information from the informant and from their

own observations of the stream of 15-20 quick visits to

the apartment. I do not believe we should allow law

enforcement officers who have probable cause early to

tarry and then justify a warrantless entry on the basis of

the lateness of the hour.

In sum, though the majority correctly notes that the

offenses were grave, firearms were present, and there

was ample probable cause for arrest or a search war-

rant, I do not believe it can be found, considering the

totality of the circumstances, that there was any urgency

for the agents to enter without obtaining a warrant.

The Eventually Contrived Exigency

When the agents returned to the apartment and

announced their official presence, there were sounds of

haste within, and some of the occupants of the apzrt-

24a

ment tried to climb out of the apartment window. At

that point there was reason to fear that the suspects

would attempt to escape or destroy evidence, and exi-

gent circumstances existed. But I do not believe we

should allow law enforcement agents deliberately to cre-

ate an exigency in order to justify a warrantless entry.

I find it difficult to conceive of the officers’ return to

the apartment as anything other than pretext, in an

effort to precipitate a crisis that did not then exist.

Though Agee stated that he returned in the hope that

the occupants would give him consent to search the

apartment, that explanation should, in the circum-

stances, be found not credible as a matter of law. Agee

testified that when he made his undercover purchase, he

Saw two firearms in the apartment, and one of them was

held cocked and pointed in his direction while he was in

the apartment. It was not objectively reasonable for the

officers to hold any belief that suspects who took such

precautions during an apparently innocuous buy would

voluntarily consent to a search by law enforcement offi-

cers. Since the agents’ suggestion that'they returned

because they thought they could gain entrance to search

by consent defies credulity, and since the agents plainly

anticipated that the announcement of their identity

would precipitate an exigency, for they came armed with

a battering ram, I think the agents must be regarded as

having deliberately created the exigency precisely to jus-

tify their warrantless entry. We should not endorse such

contrivances by law enforcement officials in their efforts

to circumvent the Fourth Amendment’s warrant require-

ment.

25a

Conclusion

The majority’s ruling today gives law enforcement

officers broad license to enter premises without a war-

rant. Apparently, they need no more than to have prob-

able cause for belief that there is ongoing narcotics

trafficking within and to request entry; if they hear any

sounds in response other than the purest of verbal

refusals, they can justify a warrantless entry by their

fear that evidence will be destroyed or that suspects will

escape. Indeed, it appears that the majority would allow

the agents to enter simply on the basis that one agent

had recently been on the premises by consent and wit-

nessed the trafficking. After this decision there appears

to be little left of the warrant requirement in narcotics

cases.

The totality of the circumstances in this case reveals

an entrenched narcotics operation, carried on in apart-

ment 1-O for at least four months, by persons who,

before the agents’ trumpeting of their official presence,

were totally unaware of the surveillance, of the interro-

gation of their customers, and of the undercover nature

of Agee’s purchase. I believe that on this record the |

finding that there was an urgent need to disregard the

Fourth Amendment’s warrant requirement is clearly

erroneous.

Accordingly, I would vacate MacDonald’s conviction

and remand to the district court for a finding as to

whether or not he had standing to challenge the war-

rantless entry.