United States v. Cruz ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 9, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2127
JOSE JESUS CRUZ,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:18-CR-01105-JB-1)
_________________________________
Carey C. Bhalla, Albuquerque, New Mexico, appearing for Appellant.
Tiffany L. Waters, Assistant United States Attorney (John C. Anderson, United States
Attorney, with her on the briefs), Office of the United States Attorney for the District of
New Mexico, Albuquerque, New Mexico, appearing for Appellee.
_________________________________
Before BRISCOE, MURPHY, and MATHESON, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
Defendant-Appellant Jose Jesus Cruz entered a conditional guilty plea to
possession of heroin with intent to distribute and to possession of a firearm during a
drug trafficking crime. Mr. Cruz appeals the district court’s denial of his motion to
suppress evidence, arguing that evidence should have been excluded because it was
the result of an unlawful search and seizure. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I
Mr. Cruz was charged in a four-count superseding indictment: Count 1, being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); Count 2,
possession of fifty grams or more of methamphetamine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); Count 3, possession of heroin
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);
Count 4, using and carrying a firearm during and in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). ROA, Vol. I at 46–47. Mr. Cruz
moved to suppress evidence police recovered during a search of Mr. Cruz’s residence
and vehicle, arguing that police officers made a warrantless entry into his home
unsupported by probable cause and that no exigent circumstances justified the entry.
Id. at 11–24.
At the hearing on the motion to suppress, Detective Gerald Koppman of the
Bernalillo County Sheriff’s Department testified to the following: In the fall of 2016,
Detective Koppman learned that a person named “Chino,” who was subsequently
identified as Mr. Cruz, was trafficking narcotics. Id., Vol. III at 13. Mr. Cruz was on
federal probation at the time, and Detective Koppman arranged to meet with him to
obtain information about another drug trafficker who was a target of Detective
Koppman’s investigation. Id. at 13–14. Mr. Cruz admitted to trafficking and selling
drugs. Id. at 14. Detective Koppman concluded any contact with Mr. Cruz after the
2
target was apprehended. Id. at 15. Approximately a year later, in early August 2017,
a confidential informant (CI) told Detective Koppman about a person named “Chino”
who was selling large quantities of narcotics. Id. at 16. Detective Koppman showed
the CI a photograph of Mr. Cruz, whom the CI identified as “Chino.” Id. The CI
stated that he 1 had met Mr. Cruz outside of Mr. Cruz’s residence at Lansing and
Airway to purchase methamphetamine. Id. at 16–17. The CI also provided a phone
number for Mr. Cruz. Id., Vol. I at 28. The CI believed Mr. Cruz was obtaining
narcotics through a trafficker from Arizona who moved hundreds of pounds of
narcotics through Albuquerque monthly. Id., Vol. III at 20.
On September 5, 2017, Detective Koppman executed a search warrant on
another suspect and found a large quantity of methamphetamine. Id. at 16, 46. The
suspect agreed to cooperate with Detective Koppman as a Confidential Source (CS).
The CS named “Chino” as his supplier, and when shown a photograph of Mr. Cruz,
the CS said that was the person he knew as “Chino.” Id. at 16. The CS stated that he
regularly conducted narcotic transactions with Mr. Cruz at the intersection of Lansing
and Airway. Id. at 16–17. The CS also showed Detective Koppman text messages
on his phone from Mr. Cruz, discussing the amount of methamphetamine that the CS
was ordering from Mr. Cruz and describing the methamphetamine. Id., Vol. I at 29.
The CS provided three different phone numbers used by Mr. Cruz, including one that
matched the number provided by the CI. Id. Both the CS and Detective Koppman
1
The record is not clear as to the gender of the CI, and the pronoun “he” is
used throughout the opinion for ease of reference.
3
believed Mr. Cruz did not keep drugs at his home because, given his probation status,
it was subject to search at any time. Id., Vol. III at 17, 27, 37.
Detective Koppman asked the CS to call Mr. Cruz and request that Mr. Cruz
bring a few ounces of methamphetamine to the CS. Id. at 17, 22, 26. Detective
Koppman listened as the CS ordered several ounces of methamphetamine from Mr.
Cruz. Id. at 17, 26. Mr. Cruz agreed to provide the methamphetamine after he
returned from work and told the CS he would call him later. Id. at 17.
Detective Koppman, however, did not plan to conduct a controlled buy. His
objective was to conduct an investigative detention with Mr. Cruz and convince Mr.
Cruz to “flip” on a bigger target. Id. at 29–30. Detective Koppman did not want to
arrest Mr. Cruz if he was willing to flip, and he did not intend to search Mr. Cruz’s
home because he did not believe Mr. Cruz would store drugs there. Id. at 30–31, 47.
Detective Koppman and other officers went to Mr. Cruz’s residence to conduct
surveillance while waiting for the arranged drug deal between Mr. Cruz and the CS.
Id. at 17–18. Shortly after Detective Koppman arrived at the residence, the CS called
Detective Koppman and told him that Mr. Cruz instructed the CS to meet in front of
the residence in fifteen minutes. Id. at 22, 24. Approximately fifteen minutes later,
Detective Koppman observed Mr. Cruz come out of his residence, open his gate, and
walk out onto the street. Id. at 24. According to Detective Koppman, Mr. Cruz
began looking around as if he were waiting for someone, consistent with behavior
expected of someone about to engage in a narcotics transaction. Id. at 24–25.
4
 At this point, Detective Koppman began to walk up to Mr. Cruz to speak with
him. Id. at 25. But when Mr. Cruz saw the law enforcement officers, he ran back
onto his property. Id. Detective Koppman instructed Mr. Cruz to stop and get on the
ground, but Mr. Cruz kept running. Id. at 47.
Detective Koppman believed, based on his experience, that Mr. Cruz was
going to destroy evidence. Id. at 26. He explained, “If [narcotics traffickers are]
running away from us, it’s usually because they have evidence that they don’t want to
be found with, and they want to try to get rid of it. Usually flushing it. Flushing it or
throwing it over a fence, throwing it on a roof. I’ve seen it all.” Id.
After Mr. Cruz ran, officers chased him as he ran, and then followed him as he
entered his home. Id. at 32. They saw Mr. Cruz come out of his bathroom and took
him into custody. Id. at 32–33. Mr. Cruz’s arm was wet up to the elbow, and
officers could see what appeared to be a bag of methamphetamine in the toilet. Id.
The officers detained Mr. Cruz, but they did not search anywhere else in the home at
that time. Id. at 33–34, 36.
After detaining Mr. Cruz, the officers read him his Miranda warnings and sat
him on the couch. Id. at 30, 34. They offered him the option of consenting to a
search, or having the officers obtain a search warrant. Mr. Cruz cooperated and
provided the officers with consent to search “whatever [the officers] want[ed] to
search.” Id. (quotations omitted).
Pursuant to this consent, officers searched Mr. Cruz’s residence. Id. The bag
recovered from the toilet contained ten grams of methamphetamine. Id., Vol. I at 30.
5
Officers found two firearms in the living room; one firearm in the bedroom;
approximately fifteen ounces of methamphetamine in the trunk of a vehicle; and
twenty grams of methamphetamine, twenty-three grams of heroin, and a firearm in a
purse in his car. Id. at 30–32. On Mr. Cruz’s person, officers found bags in his
pocket containing sixteen grams of methamphetamine and eight grams of heroin. Id.,
at 30.
The district court denied Mr. Cruz’s motion to suppress, concluding that the
warrantless entry into his home was supported by probable cause and justified by
exigent circumstances—specifically, the destruction of evidence and the hot pursuit
of a suspect. Id. at 140–41, 144. Mr. Cruz subsequently entered a conditional plea to
Counts 3 and 4 of the superseding indictment. Id. at 145–55. The district court
sentenced Mr. Cruz to a total of 360 months’ imprisonment. Id. at 156–63. Mr. Cruz
has timely appealed and only challenges the district court’s denial of his motion to
suppress.
II
When reviewing a denial of a defendant’s motion to suppress, we view the
evidence in the light most favorable to the government. United States v. Smith, 531
F.3d 1261, 1265 (10th Cir. 2008). We review the court’s factual findings for clear
error. Id. However, we review de novo the ultimate question of reasonableness
under the Fourth Amendment. Id. The existence of exigent circumstances is a mixed
question of law and fact. United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir.
1998). “Although we accept underlying fact findings unless they are clearly
6
erroneous, the determination of whether those facts satisfy the legal test of exigency
is subject to de novo review.” Id. (quotations omitted).
Under the Fourth Amendment and applicable case law, warrantless searches
and seizures are presumptively unreasonable. Brigham City v. Stuart, 547 U.S. 398,
403 (2006); United States v. Najar, 451 F.3d 710, 713 (10th Cir. 2010). Warrantless
searches inside the home are particularly suspect, and the Supreme Court has
recognized that even with probable cause, police officers may not enter a dwelling to
make an arrest absent consent or exigent circumstances. Brigham City, 547 U.S. at
403. Under the exclusionary rule, the government may not introduce evidence
obtained in violation of the Fourth Amendment. United States v. Esquivel-Rios, 786
F.3d 1299, 1306 (10th Cir. 2015).
When analyzing warrantless arrests that begin outside the home and end with
police chasing a suspect into his residence, we ask whether police had probable cause
to make the arrest in the first place and then whether there were exigent
circumstances to justify the officers’ intrusion into the home. See United States v.
Martin, 613 F.3d 1295, 1303 (10th Cir. 2010) (“Having determined that officers had
probable cause to effect an arrest . . . the question remains whether exigent
circumstances existed to justify doing so in [defendant’s home.]”). To uphold Mr.
Cruz’s warrantless arrest, we must determine whether the police officers had
probable cause to arrest him and whether there were exigent circumstances to justify
his arrest within his house. The district court concluded that there was probable
cause for Mr. Cruz’s warrantless arrest, and that two exigent circumstances justified
7
the warrantless entry into his residence: (1) the destruction of evidence and (2) the
hot pursuit of a suspect. ROA, Vol. I at 140.
III
A. Probable Cause
Mr. Cruz argues that the district court erred in finding that there was probable
cause for his arrest. Aplt. Br. at 12. To determine whether there was probable cause
for Mr. Cruz’s arrest, we look to see “whether at that moment the facts and
circumstances within [the officer’s] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent [officer] in believing
that the [defendant] had committed or was committing an offense.” United States v.
Snow, 82 F.3d 935, 942 (10th Cir. 1996) (last alteration added) (quoting Beck v.
Ohio, 379 U.S. 89, 91 (1964)). “Probable cause must be evaluated in light of
circumstances as they would have appeared to a prudent, cautious, trained police
officer,” United States v. Morgan, 936 F.2d 1561, 1568 (10th Cir. 1991), and
“[p]robable cause determinations are properly made using a totality-of-the-
circumstances analysis,” id. at 1569. “[P]robable cause requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity.”
Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983).
Moreover, where, as here, probable cause is based on information received
from a confidential informant and a confidential source, “the court makes a probable
cause determination based on the totality of the circumstances, including the
informant’s veracity, reliability, and basis of knowledge.” United States v. Hendrix,
8
664 F.3d 1334, 1338 (10th Cir. 2011). Information received from these sources
which provides “highly specific or personal details from which one could reasonably
infer that the informant had firsthand knowledge about the claimed criminal activity”
is more likely to support probable cause. United States v. Quezada-Enriquez, 567
F.3d 1228, 1233 (10th Cir. 2009). Further, information from any source (whether a
mere tipster, a confidential source, or a confidential informant) is more reliable if it is
confirmed, and thereby corroborated, by officers’ independent observations.
Hendrix, 554 F.3d at 1338.
Here, considering all that the officers knew when they approached Mr. Cruz
outside his home, they had probable cause to arrest him at that time. The officers
knew that Mr. Cruz had trafficked drugs in the past, based on his own admission to
Detective Koppman in 2016. See United States v. Artez, 389 F.3d 1106, 1114 (10th
Cir. 2004) (“[C]riminal history, combined with other factors, can support a finding of
reasonable suspicion or probable cause.”). In addition, Detective Koppman received
highly specific information from both a CI and CS that Mr. Cruz was presently
trafficking narcotics. The CI provided details supporting his claim of firsthand
knowledge of Mr. Cruz’s drug dealing, including a description of the location of Mr.
Cruz’s home; providing a phone number for Mr. Cruz; and identifying him in a
photograph. See United States v. Tuter, 240 F.3d 1292, 1298 (10th Cir. 2001)
(observing that “highly specific or personal details” can support the reasonable
inference that a source has firsthand knowledge). Moreover, the information from
the CI was corroborated by the CS. The CS identified a photograph of Mr. Cruz;
9
provided one of Mr. Cruz’s phone numbers that matched that provided by the CI; and
showed Detective Koppman text message exchanges with Mr. Cruz describing the
methamphetamine and the amount the CS was ordering from Mr. Cruz. See Artez,
389 F.3d at 1114 (noting that information received “from a second informant can also
help corroborate information from a confidential informant”). Officers also
confirmed the information from both the CI and CS through independent observation
by asking the CS to set up a drug buy with Mr. Cruz while officers listened. The CS
called Detective Koppman and told him that Mr. Cruz had asked to meet the CS at
the intersection in front of Mr. Cruz’s house in fifteen minutes. At the agreed-upon
time, Mr. Cruz walked out onto the street and began looking around as if waiting to
meet someone, behavior Detective Koppman believed was consistent with a drug
transaction. It is also relevant that Mr. Cruz fled upon seeing the officers. See
United States v. Polly, 630 F.3d 991, 999 (10th Cir. 2011) (noting flight from police
can be considered, among other factors, in probable cause analysis). In sum,
considering the officers’ knowledge of Mr. Cruz’s criminal history; detailed,
corroborated information from a CI and CS that Mr. Cruz was selling drugs; and Mr.
Cruz’s behavior at the prearranged drug buy, Detective Koppman had probable cause
to arrest Mr. Cruz when he approached Mr. Cruz outside of his home.
Nevertheless, Mr. Cruz argues that there was no probable cause for his arrest
unless and until a controlled buy was completed, see Aplt. Br. at 12, and that the
information obtained from the CI and CS was not reliable, see id. at 14. These
arguments are unpersuasive. As noted, “probable cause requires only a probability or
10
substantial chance of criminal activity, not an actual showing of such activity.”
Gates, 462 U.S. at 243 n.13 (emphasis added). Mr. Cruz relies on Aquino to support
his argument, but that case does not stand for the proposition that probable cause
arises only if there is a completed controlled buy. United States v. Aquino, 836 F.2d
1268 (10th Cir. 1988). In Aquino, the police did not have evidence linking the
defendant to drug trafficking until a controlled buy was completed. Id. at 1272–73.
Here, however, there was significant evidence linking Mr. Cruz to drug trafficking
even in the absence of a completed controlled buy, including detailed, corroborated
information from a CI and CS; text messages between the CS and Mr. Cruz setting up
drug transactions; a phone call between the CS and Mr. Cruz arranging for the sale of
methamphetamine; and Mr. Cruz appearing for the transaction at the time and place
arranged by the CS. Aquino only underscores the fact that probable cause
determinations are made using a totality of the circumstances approach. Under the
totality of the circumstances presented here, probable cause is more than supported.
Mr. Cruz’s arguments regarding the reliability of the CI and CS are also
without merit. Mr. Cruz states that the CI only provided “vague references to prior
drug deals.” Aplt. Br. at 15. But the information provided by the CI was quite
specific, including the address of Mr. Cruz’s residence and his phone number. And
contrary to Mr. Cruz’s assertion, the CI’s information was not stale. While it was
provided one month before Mr. Cruz’s arrest, the information provided suggested
that Mr. Cruz’s drug trafficking was ongoing. See ROA, Vol. III at 19 (Detective
Koppman testifying that the CS identified Mr. Cruz as “the subject that sells me
11
narcotics”) (emphasis added, quotations omitted). “When the circumstances suggest
ongoing criminal activity, the passage of time recedes in importance.” See United
States v. Cantu, 405 F.3d 1173, 1177 (10th Cir. 2005).
Mr. Cruz also points out that the CS had to ask Mr. Cruz for directions to his
home and that Mr. Cruz came outside before the CS had parked as instructed. See
Aplt. Br. at 16. While true, these arguments do not wholly undercut the CS’s
veracity. The officers corroborated what the CS told them as they watched Mr. Cruz
leave his house at the appointed time, head to the street, and look for someone. As
the government points out, “[w]hen there is sufficient independent corroboration of
an informant’s information, there is no need to establish the veracity of the
informant.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000).
Finally, it is irrelevant that the specific amount of methamphetamine in the controlled
buy was not established before the arrest. See Aplt. Br. at 16. Again, probable cause
requires only a probability or substantial chance of criminal activity, not an actual
showing of such activity. 2 Here, there was abundant evidence to support probable
cause for Mr. Cruz’s arrest.
2
Mr. Cruz also contends that Detective Koppman admitted to a lack of
probable cause for his arrest. See Aplt. Br. at 14. The record, however, only shows
that Detective Koppman stated that prior to surveilling Mr. Cruz at his residence,
officers lacked probable cause to search his home. See ROA, Vol. III at 37–38.
Whether there was probable cause to arrest Mr. Cruz and whether there was probable
cause to search his home for drugs are two separate inquiries, and here, officers did
not search Mr. Cruz’s home until they obtained his consent to do so. See United
States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998) (“Probable cause to search a
person’s residence does not arise based solely upon probable cause that the person is
guilty of a crime.”). Regardless, in addition to having probable cause to arrest Mr.
12
B. Exigent Circumstances
Having concluded there was probable cause to support Mr. Cruz’s arrest, we
must next ask whether there were exigent circumstances which would justify the
officers’ entry into Mr. Cruz’s dwelling without a warrant. The district court ruled
that this entry was supported by two exigent circumstances—destruction of evidence
and hot pursuit.
1. Destruction of Evidence
We employ a four-part test to determine whether the likelihood of destruction
of evidence justified the officers’ warrantless entry. The test requires that an
officer’s entry be: “(1) pursuant to clear evidence of probable cause, (2) available
only for serious crimes and in circumstances where the destruction of the evidence is
likely, (3) limited in scope to the minimum intrusion necessary to prevent the
destruction of evidence, and (4) supported by clearly defined indicators of exigency
that are not subject to police manipulation or abuse.” Aquino, 836 F.2d at 1272. The
district court found that each of the four prongs were met. ROA, Vol. I at 140. Mr.
Cruz does not dispute that drug trafficking is a serious crime or that the officers’
entry was limited in scope to the minimum intrusion necessary to prevent the
destruction of evidence. See Aplt. Br. at 12–20.
i. There was clear evidence of probable cause.
Cruz in his home, the officers had probable cause to believe that Mr. Cruz had
transported drugs into his home after witnessing his flight.
13
As discussed above, officers had ample evidence of probable cause to arrest
Mr. Cruz for drug trafficking when he was still outside of his home. When Mr. Cruz
ran indoors from the location of a planned drug sale, police officers had reason to
believe that he possessed drugs and was fleeing with them.
ii. Destruction of evidence was likely.
Because Mr. Cruz’s arrest was supported by clear evidence of probable cause,
we now turn to the second prong of the Aquino test, which has two parts: (1) the
destruction of evidence must be likely and (2) the crime must be serious. Mr. Cruz
only disputes the former.
In determining whether the destruction of evidence was likely, “we are guided
by the realities of the situation presented by the record” and “evaluate the
circumstances as they would have appeared to prudent, cautious, and trained
officers.” United States v. Wicks, 995 F.2d 964, 970 (10th Cir. 1993) (citing United
States v. Cuaron, 700 F.2d 582, 586 (10th Cir. 1983)); see also United States v.
Creighton, 639 F.3d 1281, 1288 (10th Cir. 2011).
Mr. Cruz contends that “there was no indication of loss or destruction of
evidence when [Mr.] Cruz exited his home or stood outside.” Aplt. Br. at 20. More
specifically, he argues that officers did not observe a drug buy before following Mr.
Cruz into his home and did not see any other signs consistent with the destruction of
evidence. Id.
Under the circumstances presented, however, Detective Koppman’s belief that
Mr. Cruz would try to destroy evidence was justified. While a drug buy was not
14
completed, officers reasonably believed that Mr. Cruz went out to the street to
engage in a prearranged drug transaction; he appeared at the agreed-upon time and
place and appeared to be looking for someone. Therefore, although the officers did
not see the controlled substance, it was logical for the officers to believe that Mr.
Cruz had the controlled substance on his person in anticipation of the drug deal. And
it was reasonable for officers to believe that Mr. Cruz was going to destroy that
evidence—a small quantity of drugs—when he fled into his home upon seeing the
officers, where there was ample opportunity for the destruction. See Aquino, 836
F.2d at 1273 (holding that the destruction of evidence was likely even though the
officers did not see or hear the destruction because there was “evidence that the
source of the cocaine was growing suspicious [of police activity]”). As Detective
Koppman explained at the suppression hearing, he believed that Mr. Cruz was going
to destroy evidence when he fled because “[t]hat’s what narcotics traffickers do.”
ROA, Vol. III at 26. Detective Koppman relied on his training and experience,
testifying that “[i]f [narcotics traffickers are] running away from us, it’s usually
because they have evidence that they don’t want to be found with, and they want to
try to get rid of it. Usually flushing it. Flushing it or throwing it over a fence,
throwing it on a roof. I’ve seen it all.” Id. The foregoing reasonably created an
exigency under the totality of circumstances, despite the fact that the officers did not
hear or see the evidence being destroyed. See Aquino, 836 F.2d at 1273.
iii. Officers’ entry was limited in scope to the minimum intrusion necessary to
prevent the destruction of evidence.
15
Mr. Cruz does not dispute that the officers’ entry was limited in scope to the
minimum intrusion necessary to prevent destruction of the evidence. He has
therefore waived this argument. See United States v. Beckstead, 500 F.3d 1154,
1162–63 (10th Cir. 2007) (finding that defendant waived an argument by failing to
include the argument in opening brief).
Regardless, the officers’ entry here was limited in scope to the minimum
intrusion necessary to prevent the destruction of evidence. Officers went into the
bathroom of the residence—where Mr. Cruz was located—and they did not search
anywhere else in the house until they obtained Mr. Cruz’s consent to do so. See
ROA, Vol. III at 32–36.
iv. Officers’ warrantless entry was supported by clearly defined indicators of
exigency not subject to police manipulation or abuse.
As for the fourth prong, police manipulation is present only when officers
“engag[e] or threaten[ ] to engage in conduct that violates the Fourth Amendment.”
Hendrix, 664 F.3d at 1339–40 (quoting Kentucky v. King, 563 U.S. 452, 462 (2011))
(alterations added).
Although acknowledging the Supreme Court’s holding in King, Mr. Cruz relies
on pre-King cases to argue that the police created the exigency here by setting up a
controlled buy but failing to obtain a warrant. See Aplt. Br. at 22–23. King
forecloses Mr. Cruz’s argument. King answered the following question: “Under what
circumstances do police impermissibly create an exigency?” 563 U.S. at 471. In
doing so, it rejected the rule that police are prohibited from relying on an exigency
16
where “it was reasonably foreseeable that the investigative tactics employed by the
police would create the exigent circumstances.” Id. at 464–65 (internal quotation
marks omitted) (reasoning that it would create difficulties for law enforcement
officers who must make quick decisions in the field). Rather, King held that the
police only impermissibly create an exigency when they engage or threaten to engage
in conduct that violates the Fourth Amendment. Id. at 462.
Here, the officers did not create the exigency by engaging or threatening to
engage in conduct that violates the Fourth Amendment. As discussed above, the
officers had probable cause for Mr. Cruz’s arrest before he entered his home, and Mr.
Cruz created the exigency of their having to enter his home when he fled from the
officers. See id. at 470 (explaining that individuals who “elect to attempt to destroy
evidence have only themselves to blame for the warrantless exigent circumstances
search that may ensue”). Moreover, we have concluded that similar investigative
tactics do not violate the Fourth Amendment. For instance, in Hendrix, we concluded
that a warrantless entry into a defendant’s motel room was justified where officers
went “directly to the motel room at night without first seeking a warrant or further
corroboration of the informant’s tip, [gave] a false name, and continually demand[ed]
entry after initially being refused.” 664 F.3d at 1339. As in Hendrix, Mr. Cruz has
not argued that the officers “threatened to enter the [residence] without permission
unless admitted.” Id. at 1340. For these reasons, the fourth prong is satisfied. The
officers’ warrantless entry was therefore justified under the destruction of evidence
exception to the warrant requirement.
17
2. Hot Pursuit
The government argues—and the district court found—that the hot pursuit
exception to the warrant requirement also justified the officers’ entry into Mr. Cruz’s
home. Aple. Br. at 27; ROA, Vol. I at 140–42. On appeal, Mr. Cruz contends that
this exception is inapplicable because the “police were not in the process of
conducting a legitimate warrantless arrest [or] in the process of making an arrest at
all.” Aplt. Br. at 21.
One category of exigent circumstances is “an ongoing hot pursuit of a fleeing
suspect.” United States v. Martin, 613 F.3d 1295, 1299 (10th Cir. 2010). Under this
doctrine, “police who attempt to arrest [a] felon outside [her] home may pursue her if
she takes refuge inside.” Aquino, 836 F.2d at 1271 (citing United States v. Santana,
427 U.S. 38, 42–43 (1976)). In other words, “a suspect may not defeat an arrest
which has been set in motion in a public place.” Santana, 427 U.S. at 43. “[H]ot
pursuit means some sort of a chase, but it need not be an extended hue and cry in and
about (the) public streets.” Id. at 42–43 (internal quotation marks omitted). Hot
pursuit occurs when an officer is in “immediate or continuous pursuit” of a suspect
from the scene of a crime. Welsh v. Wisconsin, 466 U.S. 740, 753 (1984).
As discussed above, Mr. Cruz’s contention that there was no probable cause
for his arrest is without merit. At issue, then, is Mr. Cruz’s contention that the
officers were not in the process of making an arrest. See Manzanares v. Higdon, 575
F.3d 1135, 1147 (10th Cir. 2009) (noting that both probable cause and either a
warrant or exigent circumstances are required “to seize an individual in his home”).
18
The record demonstrates that the officers were in “immediately or continuous
pursuit” of Mr. Cruz from a public street into his home after he fled, in an effort to
apprehend him. Welsh, 466 U.S. at 753. Detective Koppman testified that Mr. Cruz
walked “out to the street,” ROA, Vol. III at 24, then ran from the officers into his
home, id. at 47. “When he ran,” the officers tried to apprehend him, “[giving] him
specific instructions to stop running, to get on the ground.” Id.; see United States v.
Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996) (“An order to freeze
communicates that suspects are not free to leave and is sufficient to effect a
seizure.”). Mr. Cruz did not stop, however. Instead, Detective Koppman testified
that Mr. Cruz went “in the door [to his residence],” ROA, Vol. III at 32, and that the
officers chased him immediately, see id. (“[W]e went in the door right after him.”).
See also id. at 36 (Detective Koppman stating that the chase occurred in a “matter of
seconds”). Detective Koppman testified that as soon as the officers “[saw] him
coming out of the bathroom . . . he was ordered to the ground and taken in custody.”
Id. at 32.
Mr. Cruz is correct that the officers initially did not want to arrest him, but the
record demonstrates that their plans changed after he ran. At that point, officers
attempted to seize him by asking him to stop and get on the ground, then arrested him
immediately after chasing him into his home. Thus, Mr. Cruz’s argument that “an
arrest was not already in motion” when the officers went into the residence is not
supported by the record. Aplt. Br. at 22. Accordingly, the hot pursuit exception, in
addition to the destruction of evidence exception, justified the officers’ warrantless
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entry into Mr. Cruz’s home. There was thus no taint to Mr. Cruz’s consent to
officers’ search of his home, and the evidence should not be suppressed.
IV
For the foregoing reasons, we AFFIRM the district court’s denial of Mr.
Cruz’s motion to suppress.
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