United States v. Chambers ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0045p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
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Nos. 03-6298/6406
v.
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LESLIE DELYNN CHAMBERS, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20423—Jon Phipps McCalla, District Judge.
Argued: October 28, 2004
Decided and Filed: February 2, 2005
Before: MERRITT, DAUGHTREY, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Thomas A. Colthurst, ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellant. K. Jayaraman, Memphis, Tennessee, for Appellee. ON BRIEF: Thomas
A. Colthurst, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellant.
K. Jayaraman, Memphis, Tennessee, for Appellee.
MERRITT, J., delivered the opinion of the court, in which DAUGHTREY, J., joined.
SUTTON, J. (pp. 7-12), delivered a separate dissenting opinion.
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OPINION
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MERRITT, Circuit Judge. In this drug case, the District Court suppressed evidence of a
methamphetamine laboratory seized by police officers as a result of a warrantless search of a trailer
home and garage on a remote country road in a farming area of West Tennessee. The officers did
not seek judicial review and approval in advance as the Fourth Amendment requires except in
extraordinary circumstances. The government appeals the suppression order primarily on the ground
that the possible destruction of evidence justified the warrantless search under the “exigent
circumstances” exception to the warrant requirement. Secondarily, the government also claims as
an alternative theory that the officers obtained a valid consent to search after their forced entry at
the home. We will first set out the principles governing warrantless searches for evidence and then
apply those principles to the situation before us. We will affirm the judgment of the District Court
1
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because here there was no emergency justifying a warrantless search and the officers anticipated that
they would conduct the search and could easily have obtained a search warrant.
I. Principles Limiting Warrantless Searches Based on “Exigent Circumstances”
The principles governing warrantless searches based on “exigent circumstances” are fairly
well settled. In the Fourth Amendment, the Founders required a warrant for searches and seizures
because they did not trust constables, sheriffs and other officers to decide for themselves when they
had probable cause to search houses, individuals and places of business. The first and most
important principle is that searches must ordinarily be cleared in advance as a part of the judicial
process. In Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (footnotes omitted), the
Supreme Court explained:
Thus the most basic constitutional rule in this area is that “searches conducted
outside the judicial process, without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” The exceptions are “jealously and
carefully drawn,” and there must be “a showing by those who seek exemption . . .that
the exigencies of the situation made that course imperative.” “[T]he burden is on
those seeking the exemption to show the need for it.”
(Emphasis added and footnotes omitted.) In order for a warrantless search to pass muster, probable
cause must exist, but “no amount of probable cause can justify a warrantless seizure,” id. at 471,
because, in addition, the cause of the search must be based on an “emergency” and hence,
“inadvertent” or unanticipated. “Where the discovery is anticipated, where the police know in
advance the location of the evidence and intend to seize it, the situation is altogether different.” Id.
at 470.
Under these principles, officers must seek a warrant based on probable cause when they
believe in advance they will find contraband or evidence of a crime. They must articulate the basis
of their belief in the affidavit and bring the matter before a magistrate. When the police go to a
home with the intention of searching for evidence, they may not forgo a warrant.
When there is neither a warrant nor consent, courts will only permit a search or seizure to
stand under extraordinary circumstances. In McDonald v. United States, 335 U.S. 451 (1948),
“three police officers [without a warrant] surrounded the house” they had had under surveillance for
two months where they believed that McDonald was conducting a numbers racketeering operation.
“While outside the house, one of the officers thought he heard an adding machine. These machines
are frequently used in the numbers operation. Believing that the numbers game was in process, the
officers sought admission to the house.” Id. at 452. They entered the home and seized the evidence
while the numbers operation was in progress. The Court suppressed the evidence:
Where, as here, officers are not responding to an emergency, there must be
compelling reasons to justify the absence of a search warrant . . . . We will not
assume that where a defendant has been under surveillance for months, no search
warrant could have been obtained . . . . No reason, except inconvenience of the
officers and delay in preparing papers and getting before a magistrate, appears for
the failure to seek a search warrant . . . . Absent some grave emergency, the Fourth
Amendment has interposed a magistrate between the citizen and the police.
Id. at 454-55 (emphasis added). The “imperative” and “anticipated” language of Coolidge and the
“grave emergency” language of McDonald are designed to insure that officers will seek a warrant
based on probable cause when they have a belief in advance that they will find contraband or
evidence of a crime. They may only forego a warrant in the case of a true exigency or emergency.
Nos. 03-6298/6406 United States v. Chambers Page 3
Moreover, for a warrantless search to stand, law enforcement officers must be responding
to an unanticipated exigency rather than simply creating the exigency for themselves. In United
States v. Richard, 994 F.2d 244 (5th Cir. 1993), the officers were conducting surveillance of a hotel
room occupied by suspects. The officers approached the door, knocked, and announced that they
were police officers. The officers heard the sound of people talking softly, heard doors or drawers
slamming, and footsteps moving about. The officer kicked the door open and entered the room
without a warrant. Although officers claimed that they did not have probable cause to obtain a
warrant in the beginning, the evidence suggested otherwise. Id. at 248. The court held that the
officers could have secured the area around the room while they waited for a warrant; but because
they did not, the officers had created the exigent circumstances that they wanted to rely on to justify
their warrantless entry. A “warrantless entry became a foregone conclusion once officers knocked.”
Id. at 249-50. McDonald and Richard stand firmly for the proposition that warrantless searches are
not permitted when the only exigency is one that is of the officer’s creation.
Likewise, in Ewolski v. City of Brunswick, 287 F.3d 492, 504 (6th Cir. 2002), we reviewed
a number of the “created-exigency” cases that apply the emergency and inadvertence principle
which, we said, cannot be met “if the police controlled the timing of the encounter giving rise to the
search.” Our review concluded that “the created-exigency cases have typically required some
showing of deliberate conduct on the part of the police evincing an effort intentionally to evade the
warrant requirement.” Id. (Emphasis added.)
II. Application of “Exigent Circumstances” Principles to the Facts of this Case
The warrantless search in this case turned up extensive evidence of the operation of an
elaborate meth laboratory that the police believed was at the premises when they arrived. At the
suppression hearing below, the government offered evidence from the lead officer of the search,
George Freeman, a narcotics officer for the Sheriff of Fayette County, Tennessee. He testified that
four months before the search a known confidential informant advised police that the Chambers lab
was manufacturing methamphetamine at the trailer home and garage where the search was later
conducted. The informant’s identity was known and his information was clear. There is no claim
that the informant was anonymous, unreliable or had not given the officers a sound factual basis for
his statements. Based on the strength of the information from the confidential informant, officers
conducted both an extensive surveillance of the trailer home and garage from a nearby field for three
nights and later used helicopter flyovers. The surveillance uncovered frequent nighttime visits to
this remote location by numerous people in cars, some with out-of-county license plates — visits
that Officer Freeman believed were consistent with customers purchasing drugs from the meth lab
that the informant had described.1 In addition, at the trailer home in this remote farming area, the
1
Officer Freeman testified as follows:
Q: Now I started this line of questioning by asking you if anything unusual happened, why was this
activity significant to you?
A: ....So with the vehicles coming up and down the road and stopping there for, you know, ten, 15, 20
minutes and then leaving, it seemed to be significant as far as in and out quick, frequent, which is
consistent with narcotics activity.
....
Q: Why did you reach that conclusion?
A: It’s been my experience during narcotic investigations that a house where people pull up, either one
or more occupants stay in the vehicle where the engine is left running and they go in the house for a
short period of time and then leave, through — through my observations as a police officer that is
consistent with narcotics sales.
Nos. 03-6298/6406 United States v. Chambers Page 4
officers observed that Chambers was using surveillance cameras and several high intensity spotlights
to keep watch over the area — all of which fully corroborated the confidential informant’s report
to the police. There was now strong, indeed overwhelming, evidence of multiple drug sales at the
premises on a daily basis, evidence supporting the informant’s statements that a meth lab was in
frequent operation at the Chambers home. But the officers took no action at this time to secure a
search warrant despite the incriminating evidence in their possession. No magistrate was asked nor
has any magistrate ever turned down a request for a warrant in this case.
At the suppression hearing, narcotics Officer Freeman also testified that the sheriff’s office
then received an “anonymous” call on October 9, 2002, three months after the surveillance.
Freeman said that the caller “was adamant that I write this down and stated that the Chambers were
cooking meth right there on Linwood road right now and that we had better get out there, and hung
up the phone.” The police now had evidence from a known confidential informant, the strong
corroboration obtained as a result of their extensive surveillance and evidence from an anonymous
caller that the drug was being manufactured at the Chambers lab that day. Still the officers did not
seek a warrant.
Instead, the officers performed a warrantless “knock and talk investigative technique” that
Officer Freeman had been taught, a method of investigation requiring the officer to go to a home and
knock on the door and ask questions in an effort to gain consent to search.2 While en route to the
Chambers’ home, Freeman called Officer Feathers of the federal DEA task force to advise him to
be ready for a search at the Chambers residence. Three cars with armed deputies drove to the house
to participate in this so-called “consensual” encounter.
They knocked on a glass entry door of the trailer home. A woman came to the glass door
to answer the knock. She retreated when she saw that the police were at the door. She called out
that there were police at the door; and the police heard, according to Officer Freeman, footsteps
scurrying inside the trailer as the woman went into another room. Freeman then used the knock and
the occupant’s refusal to talk as the justification for entry. The police officers immediately went
through the door with guns drawn and into the trailer home to begin their search. The officers had
now entered the home without a warrant after appearing in three cars and after informing the DEA
task force of the impending search. Why and how exactly the officers thought that the occupants
were going to destroy an entire operating meth laboratory with heavy equipment and drums of
chemicals in two detached buildings is not explained.
After searching for a few minutes and finding incriminating evidence, indicating an operating
meth lab, Officer Freeman read Chambers, the owner, and his wife, their Miranda rights; and the
Chambers then signed a consent to search form at the request of officer Freeman. Freeman testified
that Chambers was under arrest and not free to leave.
After the entry and search, Freeman called Feathers back and asked him to come. Feathers
came to the premises with other officers and told Freeman that with the “information that they . . .
had prior on Mr. Chambers, they [the Feathers group of officers] just wanted to go ahead and stop
. . . and get a search warrant.” Freeman had not suggested a warrant. Unlike the sheriff’s officers,
these DEA officers believed a warrant necessary based on the “prior information” they had about
the Chambers. They would not participate in a search based on exigent circumstances. So at that
Testimony of George Freeman, Suppression Hearing, Feb. 26, 2003, at pp. 23-24 (J.A. at 166-67).
2
“Courts have defined [knock and talk] as ‘a noncustodial procedure [in which] the officer identifies himself
and asks to talk to the home occupant and then eventually requests permission to search the residence.’” United States
v. Hardeman, 36 F. Supp. 2d 770, 777 (E.D. Mich. 1999) (citation omitted). Courts generally have upheld this
investigative procedure as a legitimate effort to obtain a suspect’s consent to search.
Nos. 03-6298/6406 United States v. Chambers Page 5
point the various officers on the premises waited for the search warrant to arrive, long after the
initial search had actually been conducted after the warrantless entry.
The government’s claim that the officers did not have sufficient evidence of probable cause
even to seek a warrant is more farfetched than the similar claim that the Supreme Court rejected in
McDonald. Like the Court in McDonald, “[w]e will not assume that where a defendant has been
under surveillance for months, no search warrant could have been obtained.” 335 U.S. at 454-55.
The officers had the information from the confidential informant, the corroboration gained by their
extensive surveillance and the anonymous caller evidence. They had advised the DEA in advance
of the impending search. Clearly, they should have sought a search warrant. Moreover, they
completely “controlled the timing of the encounter giving rise to the search.” The fact that the
woman at the door called out “police” and retreated back to another room does not create an exigent
circumstance. It is her constitutional right. Such a retreat and refusal to allow soldiers or armed
officers into the home is every citizen’s right under the Fourth Amendment, the very reason for its
creation. The exercise of this fundamental right against armed invasion of the home is certainly not,
as the government seems to imply, the “equivalent” to yelling “destroy the drugs” — or “get your
guns ready” or “try to hide or destroy the boiler and all the lab equipment.” The exercise of a
constitutional right at the front door of your home not to consent to talk or allow a search does not
create an exigency justifying a warrantless entry.
“The burden is on those seeking the exemption [from the warrant requirement] to show the
need for it,” Coolidge, 403 U.S. at 455. There is no showing here at all that a magistrate would not
have issued the warrant earlier in the day or at some previous time, as he did later in the day upon
the affidavit of the DEA Task Force. There was no exigency. We therefore conclude that the
District Court did not err in its conclusion that the government has failed to show the need for an
exemption from the warrant requirement of the Fourth Amendment.
The failure to seek a warrant in the face of plentiful probable cause, the timing and
Freeman’s call to Officer Feathers advising him of the impending search, as well as the arrival with
three cars and the immediate entry with guns drawn, taken together, meet the requirement of “some
showing of deliberate conduct on the part of the police evincing an effort to evade the warrant
requirement.” Even were the Court to find exigent circumstances, the record indicates that any
exigency was calculated by the police in order to facilitate their warrantless search.
The freedom from armed intrusions of the home “outside the judicial process, without prior
approval by judge or magistrate,” as the Supreme Court explained in the Coolidge case quoted
above, is one of our most “basic” civil liberties. Like the rights of free speech and assembly, trial
by jury and the right to counsel, it is among the civil liberties the founding generation fought for and
included in our founding documents — a liberty that the American people have pointed to with pride
for 200 years. We should continue to take seriously the rule that judicial review is necessary to
allow such intrusions and not water down the warrant requirement because advanced judicial
clearance is an inconvenient or inefficient practice that the police or the military are too busy, or
otherwise unwilling, to observe.
III. The Consent to Search Issue
Within a few minutes after the warrantless entry, Officer Freeman encountered Chambers,
effectively advised him that the officers had looked around briefly and found evidence of
methamphetamine use and manufacture, read him his Miranda rights and asked him to sign a
consent to search further. Officer Freeman answered, “Yes” to the question on cross-examination,
“[Chambers] was actually detained, is that correct, he is not free to leave at the time he was asked
for the consent to search?” At that point, after the illegal entry and after the officers had found some
Nos. 03-6298/6406 United States v. Chambers Page 6
evidence of the methamphetamine lab they had expected to find, and after Chambers was not free
to leave, Chambers and his wife then signed a consent to search form.
The government’s brief correctly states the standard for consent to search after an illegal
entry:
When an individual consents to a search after an illegal entry is made, the
consent is not valid and “suppression is required of any items seized during the
search..., unless the taint of the initial entry has been dissipated before the ‘consents’
to search were given.” Buchanan, 904 F.2d at 356 (quoting United States v.
Vasquez, 638 F.2d 507, 527 (2d Cir. 1980), cert. denied, 450 U.S. 970 (1981)).
“Dissipation of the taint resulting from an illegal entry,” this Court has held,
“ordinarily involves showing that there was some significant intervening time, space,
or event.” Id. (quoting Vasquez, 638 F.2d at 528). Finally, it is the government’s
burden to show that the defendant’s consent “was sufficiently an act of free will to
purge the primary taint of the unlawful invasion.” Buchanan, 904 F.2d at 356
(emphasis in original).
We agree with the District Court that the consent to search forms were executed by
Chambers and his wife only a few minutes after the illegal entry by three police officers, after they
had conducted a brief preliminary search and found evidence of a methamphetamine lab and after
Chambers was no longer free to leave and therefore effectively under arrest. We agree with the
District Court as well that these events created a highly coercive atmosphere and that “it would be
reasonable for Chambers to think that refusing consent would be a futile gesture amounting to no
more than ‘closing the barn door after the horse is out.’” The District Court credited Chambers’
testimony: “He asked me if I had the keys to the shed [where the anhydrous was stored], and he had
me under arrest, I didn’t know what else to do . . . I had no choice in it.” (Op., p. 23, App. 107.)
Based upon the evidence in the case, we find no error in these findings and the conclusion of the
District Court as follows:
Considering the totality of the circumstances, the Court finds that Chambers’ consent
was the product of the prior illegal entry into his residence. Accordingly, it is
submitted that the government has not carried its burden to show by a preponderance
of the evidence through clear and positive testimony that Chambers’ consent was
voluntary.
(Op. p. 24, App. p. 108.)
Accordingly, the judgment of the District Court is AFFIRMED.
Nos. 03-6298/6406 United States v. Chambers Page 7
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DISSENT
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SUTTON, Circuit Judge, dissenting. As this matter comes to the court, the debate over the
officers’ initial entry into the house has focused on two questions: whether the officers had probable
cause to search the house and whether the exigent-circumstances exception allowed them to enter
the house in the absence of a warrant. The majority acknowledges that probable cause existed to
conduct a search, a conclusion with which I agree, and suggests that exigent circumstances did not
exist, a conclusion with which I do not agree—given that the police suspected that drugs and a drug-
manufacturing operation were in the house, one of the occupants yelled “the police are here” upon
answering the police officer’s knock on the door, this same occupant “ran” back into the house after
seeing who was there and other occupants of the house began moving quickly after hearing that the
police had arrived. Rather than stop there, however, the majority proceeds to invalidate the search
primarily on the ground that the officers manufactured the exigency, a ground neither argued by the
defendant nor supported by the facts. Because the manufactured-exigency exception requires
“deliberate conduct on the part of the police evincing an effort intentionally to evade the warrant
requirement,” Ewolski v. City of Brunswick, 287 F.3d 492, 504 (6th Cir. 2002), and because no such
conduct occurred here, I respectfully disagree with this conclusion as well. I thus would uphold the
initial search and, after that, the full search to which the defendant freely consented after the
officers’ initial and permissible entry.
First, was there probable cause? Under the “flexible, common-sense standard” of probable
cause, Texas v. Brown, 460 U.S. 730, 742 (1983), probable cause exists when “the facts available
to the officer would warrant a man of reasonable caution in the belief that certain items may be
contraband or stolen property or useful as evidence of a crime,” id. (internal quotations marks and
citation omitted), or when there is “a fair probability that contraband or evidence of a crime [would]
be found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238 (1983). The officers satisfied
this standard.
In June of 2002, a confidential informant told the police that methamphetamine was being
manufactured at the Chambers’ house. Surveillance corroborated the tip, revealing an elaborate
security system beyond that of a typical rural homeowner: motion detectors, floodlights,
surveillance cameras and a person acting as a lookout. Add to these observations a series of short-
duration visits made by different people to this rural house late at night in June, all observed by
Freeman, and it is not surprising that Freeman came to the conclusion that “narcotics activity” was
afoot. JA 166. Yet because Freeman did not believe he had enough facts at that time to support
probable cause, he did not seek a warrant to search the house or, for reasons that remain unclear,
conduct any other surveillance of the house. See JA 199 (Freeman testifying that he did not believe
he had probable cause prior to the knock-and-talk encounter).
Roughly four months after the surveillance ended, on October 9, the police received an
anonymous call about the Chambers’ house. “I’m not going to give you my name,” the caller said,
“but they’re cooking meth on Linwood, the third or fourth house on the left, the Chambers’
residence, and you need to get down there quick before somebody gets hurt.” JA 243. Immediately
after receiving the tip, several officers drove to the Chambers’ home and proceeded to conduct what
has come to be known as a “knock and talk” consensual encounter. They knocked on the door,
which was answered by a woman. Upon answering the door, she “ran back into the trailer home out
of sight, very excited and loudly shouting, ‘The police are here.’” JA 91 (magistrate judge’s
findings of fact, later adopted by district court). At the same time, the officers heard the sound of
several other occupants suddenly moving quickly within the house.
Nos. 03-6298/6406 United States v. Chambers Page 8
All of these factors considered—two tips (one by a confidential informant, the other
anonymous), the surveillance of the house four months earlier and on the day of the search, and the
reaction of the woman and the other occupants upon the arrival of the police—the police had
probable cause to believe that criminal activity was taking place in the house on October 9. See
Gates, 462 U.S. at 238 (explaining that probable cause exists when there is “a fair probability that
contraband or evidence of a crime [would] be found in a particular place”); United States v.
Velazquez-Rivera, 366 F.3d 661, 664 (8th Cir. 2004) (efforts at flight and evasion combined with
corroborated informant’s tip established probable cause); United States v. Clarence Pennington, 328
F.3d 215, 221 (6th Cir. 2003) (noting that the “sound of footsteps, indicating someone running away
from the front door . . . would indicate to a reasonable officer that . . . the person inside the home
was taking some type of evasive action, including the possible destruction of contraband”); see also
Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“[H]eadlong flight . . . is the consummate act of
evasion.”).
Chambers attempts to counter this conclusion by arguing that the events in June were too
remote in time to be factored into the probable-cause equation. Yet staleness is not measured “solely
by counting the days on a calendar.” United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998).
It turns on a host of “variables: the character of the crime (chance encounter in the night or
regenerating conspiracy?), the criminal (nomadic or entrenched?), the thing to be seized (perishable
and easily transferable or of enduring utility to its holder?), the place to be searched (mere criminal
forum of convenience or secure operational base?), etc.” Id. (quotation marks omitted). The old and
new evidence in this instance both pointed in the same direction, namely toward the existence of an
ongoing methamphetamine laboratory at the Chambers’ house. The two tips, separated by four
months, each attested that there was a methamphetamine laboratory there; the elaborate home
security measures suggested a fixed and ongoing operation; the presence of an unusual number of
automobiles at a dead-end road in a rural location with normally sparse traffic suggested an ongoing
criminal operation; and the reaction of the woman at the door confirmed that the prior apparent drug
activity at the house had become the prologue to current drug activity at the house. As these
variables demonstrate, even when a significant period of time has elapsed since a defendant’s last
reported criminal activity, it is still possible to infer that wrongdoing continues on the premises. Id.;
see also United States v. Wright, 343 F.3d 849, 864 (6th Cir. 2003) (a factor for evaluating staleness
is whether there is “any corroboration of the older and more recent information”); United States v.
Johnson, 461 F.2d 285, 287 (10th Cir. 1972) (when facts indicate “activity of a protracted and
continuous nature, a course of conduct, the passage of time becomes less significant”). A person
of reasonable caution, in short, could well have expected to find methamphetamine and the
equipment used to make it at the Chambers’ house on October 9.
Second, did exigent circumstances allow the police to enter the house without a warrant?
The police, the parties agree, may conduct a warrantless search when probable cause exists and
when they face exigent circumstances, see Groh v. Ramirez, 540 U.S. 551, 559 (2004), which
include the risk that evidence of criminal activity will be destroyed, see Coolidge v. New Hampshire,
403 U.S. 443, 477–78 (1971) (noting “the basic principle of Fourth Amendment law that searches
and seizures inside a man’s house without warrant are per se unreasonable in the absence of some
one of a number of well defined ‘exigent circumstances’” and then discussing the destruction of
evidence). The police, the parties further agree, may enter a house without a warrant (as well as
execute a search warrant without knocking and announcing) when “probable cause plus exigent
circumstances” exist. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (explaining that “police
officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful
entry into a home”); United States v. Campbell, 261 F.3d 628, 632–33 (6th Cir. 2001) (“The law is
well settled that a warrantless entry will be upheld when the circumstances then extant were such
as to lead a person of reasonable caution to conclude that such evidence would probably be
destroyed within the time necessary to obtain a search warrant.”). See also United States v. Douglas
Pennington, 287 F.3d 739, 747 (8th Cir. 2002) (holding that officer’s knowledge that drugs had just
Nos. 03-6298/6406 United States v. Chambers Page 9
left the house, that drugs had been found in the residence during a search three months prior, and
that the house currently smelled of drugs “created exigent circumstances justifying the officers’
entry into the house to arrest [an occupant] and to prevent the destruction of drug manufacturing
evidence while they obtained a search warrant”); United States v. Marshall, 157 F.3d 477, 482 (7th
Cir. 1998) (holding that the warrantless entry into the suspect’s home was justified because the
officers reasonably believed the occupant was aware of their presence and preparing to destroy
evidence). And the police, the parties finally agree, not only may use consensual encounters on the
street as a legitimate law-enforcement technique, but they also may use consensual encounters at
a doorstep—a “knock and talk”—as a legitimate investigative technique. See United States v. Jones,
239 F.3d 716, 720 (5th Cir. 2001) (“Federal courts have recognized the ‘knock and talk’ strategy
as a reasonable investigative tool when officers seek to gain an occupant’s consent to search or when
officers reasonably suspect criminal activity.”); see also Ewolski, 287 F.3d at 504 (concluding that
it was reasonable to approach a suspect’s home to attempt to learn more through consensual
questioning).
Given these principles, all agree, including defense counsel at oral argument, that the validity
of this search would have been a lay-down if the woman answered the knock on the door by yelling
“Police, destroy the drugs.” That response to a legitimate knock on the door by the police assuredly
would have removed any doubt about probable cause while at the same time establishing the
requisite exigent circumstances to enter the house and preserve the status quo before obtaining a
warrant or consent to search. Under these circumstances, the question in this case comes to this:
Is what the police saw and heard sufficiently akin to yelling “Police, destroy the drugs” as to justify
the officers’ actions? I think it is.
For one, while the woman did not yell “Police, destroy the drugs,” she did yell “the police
are here” and ran down the hallway after answering the door. That is not the way law-abiding
citizens generally react to an encounter with the police. See Clarence Pennington, 328 F.3d at 221
(noting that an occupant who runs away from the door when police knock is acting suspiciously);
cf. Illinois v. Lidster, 540 U.S. 419, 425 (2004) (“[C]itizens will often react positively when police
simply ask for their help as responsible citizens to give whatever information they may have to aid
in law enforcement.”) (quotation marks and brackets omitted). For another, what happened
immediately after the woman’s reaction to the presence of the police amounted to the visual and
aural equivalent of “destroy the drugs.” The woman “ran” down the hallway away from the door
and the officers heard “the sound of people running inside the trailer.” JA 174. At this point, of
course, the officers did not conduct a full-blown search of the house, but entered the house to
preserve the status quo. And had the Chambers not eventually consented to the search, there is every
indication that the group of officers engaged in the investigation would have proceeded to obtain
a search warrant for the house. JA 185 (testifying in response to the question “did you search the
house after receiving consent?,” Freeman said, “No, sir, we—we waited” for the DEA agents to
arrive); JA 196 (recording that when the DEA agents arrived and learned of the evidence initially
observed, they stopped and waited for a search warrant).
In view of the reaction of the woman and the other individuals in the house to the arrival of
the police and in view of the reality that there was probable cause that drugs and drug-manufacturing
equipment were in the house, exigent circumstances existed to enter the house promptly to control
the situation. Time and again, courts have recognized that because drugs (and, it follows, the raw
materials used to make them) are eminently disposable, exigent circumstances will often exist to
enter a house without knocking and announcing or, as here, without a warrant. See, e.g., United
States v. Banks, 540 U.S. 31, 39 (2003) (noting that prudent cocaine dealers keep their drugs near
a commode or sink for quick disposal in the course of ruling on the appropriate amount of time
officers must wait to enter a house after knocking on the door); United States v. Elkins, 300 F.3d
638, 655 (6th Cir. 2002) (“Exigent circumstances permitting police to enter a structure without a
Nos. 03-6298/6406 United States v. Chambers Page 10
warrant may arise when evidence of drug crimes is in danger of destruction.”); see also Campbell,
261 F.3d at 632–33 (same).
Third, does the manufactured-exigency exception (to the exigent-circumstances exception
to the warrant requirement) alter this conclusion? In the majority’s view, it does; in my view, it does
not.
Recognizing the need to give the police reasonable latitude in doing their job, our “created-
exigency cases have typically required some showing of deliberate conduct on the part of the police
evincing an effort intentionally to evade the warrant requirement.” Ewolski, 287 F.3d at 504
(emphasis added). In Ewolski, police received credible evidence that an individual was dangerous
and volatile and might be a risk to his wife and son. In the course of rejecting an argument that the
officers’ warrantless entry into the house grew out of a manufactured exigency, Ewolski explained
what happens when police go to a home to “attempt to learn more through consensual questioning.”
Id. “When an officer observes facts giving rise to exigent circumstances in the course of [ ] a
consensual encounter,” we held, “it usually cannot be said that the officer impermissibly ‘created’
the exigent circumstances.” Id. at 505.
Just as facts observed by the police in the course of a consensual encounter “usually” will
not be treated as deliberately prompting an exigency, so it is true that facts gathered in the course
of other ordinary police work typically will not be treated as contriving an exigency. In Campbell,
members of a police narcotics unit intercepted a Federal Express package containing drugs. Seeking
to catch the intended recipient of the package, the officers removed most of the drugs (replacing
them with another substance), inserted a transmitting device that would activate upon opening the
package and obtained a warrant to search the addressed residence. Campbell, 261 F.3d at 629–30.
Undercover officers monitored the delivery of the package, but the suspect defied their expectations
by taking the package to a different residence. Id. at 630. Soon after the suspect arrived at the
second residence, the transmitter signaled that the suspect had opened the package, after which
officers entered the residence without a warrant to prevent the destruction of evidence. Id. On
appeal from the conviction of the suspect, we rejected his claim that the police manufactured the
exigency, emphasizing that it was the actions of others, not the actions of the police, that established
the exigency. Id. at 634.
So it is here. On October 9, the police received an anonymous tip that methamphetamine
was being “cooked” at the Chambers’ residence and that “you need to get down there quick before
somebody gets hurt.” See JA 210 (Freeman describing methamphetamine labs as “very explosive”),
243. At that point, the officers did not believe that they had probable cause sufficient to support a
search warrant, see JA 199 (Freeman testifying that he did not believe he had probable cause prior
to the knock-and-talk encounter), and at all events could fairly believe that they did not have time
to try to get a warrant given the nature of the tip. The only deliberate conduct of the police under
these circumstances was to use a reasonable investigative tool—the consensual encounter—to gather
more evidence and to do so quickly. When the residents of the house responded to this legitimate
law-enforcement technique in incriminating and risky ways—by yelling “Police” and running back
into the house in one instance and by moving suddenly and quickly around the house in other
instances—it was the residents, not the police, who created the danger that evidence of drug activity
would soon disappear. As Ewolski makes clear, “[w]hen an officer observes facts giving rise to
exigent circumstances in the course of such a consensual encounter, it usually cannot be said that
the officer impermissibly ‘created’ the exigent circumstances.” 287 F.3d at 505. All of this may
explain why Chambers did not rely on the manufactured-exigency exception below or in the court
of appeals.
While the majority gives several explanations for applying the manufactured-exigency
exception here, I do not find them convincing. The one case cited by the majority in which a
Nos. 03-6298/6406 United States v. Chambers Page 11
manufactured exigency was found, United States v. Richard, 994 F.2d 244 (5th Cir. 1993), does not
cover our circumstances. There, police suspected a man of drug smuggling, knocked on his door
and announced that they were police officers. When the occupants responded, “Okay. Okay. Wait
a minute,” but did not open the door quickly, the police forced themselves into the hotel room. Id.
at 246–47. Noting that the officers did not have a warrant and did not have probable cause of illegal
activity before they entered the room and that the officers “did not know what, if any, evidence [the
hotel room] might contain,” the Fifth Circuit understandably did not accept the government’s claim
that “the possibility of destruction of evidence” provided an exigent circumstance. Id. at 249. I
agree with the resolution of Richard but not its application here. In Richard, unlike our case, the
police did not have probable cause of drug activity before entering the hotel room. And in Richard,
unlike our case, the residents did nothing unusual or incriminating in answering the door that would
have created probable cause or a drug-offense-related exigency.
While the majority relies on language in Coolidge for the proposition that the discovery of
evidence must be “inadvertent” or “unanticipated” to justify a warrantless entry, the inadvertence
requirement, as the majority’s citations demonstrate, see ante at 2, applies to the plain-view
exception, not the destruction-of-evidence exception, see Coolidge, 403 U.S. at 469, 471 (stating
that “the discovery of evidence in plain view must be inadvertent” and that an intrusion to seize
“objects—not contraband nor stolen nor dangerous in themselves—which the police know in
advance they will find in plain view and intend to seize, would fly in the face of the basic rule that
no amount of probable cause can justify a warrantless seizure”). Removing any doubt on this score,
the Supreme Court more recently has held that “even though inadvertence is a characteristic of most
legitimate ‘plain-view’ seizures, it is not a necessary condition.” Horton v. California, 496 U.S.
128, 130 (1990).
Nor do I see how McDonald v. United States, 335 U.S. 451 (1948), advances the majority’s
analysis. McDonald suppressed evidence found during a warrantless search because exigent
circumstances did not justify the entry. “[T]he defendant,” the Court observed, “was not fleeing or
seeking to escape. Officers were there to apprehend petitioners in case they tried to leave. Nor was
the property in the process of destruction nor as likely to be destroyed as the opium in the Johnson
case.” Id. at 455. Since the police went promptly to the house in response to a tip that “you need
to get down there quick before somebody gets hurt” and proceeded to act in response to the likely
destruction of evidence, McDonald reinforces the propriety of the officers’ actions.
Nor can I agree with the majority that because some meth lab components cannot be quickly
destroyed the police faced no threat of evidence destruction. Certainly the most incriminating
evidence, the methamphetamine itself, could be quickly flushed or otherwise destroyed. As the
indictment shows, destroying the methamphetamine would reduce the seriousness of the offenses
considerably. Compare JA 11 (listing count one, manufacturing a detectable amount of
methamphetamine in violation of 21 U.S.C. § 841(a)(1), as including a 20-year maximum sentence)
with JA 13 (listing count three, possessing materials which could be used to manufacture a
controlled substance in violation of 21 U.S.C. § 843(a)(6), as carrying a 10-year maximum
sentence). Nothing about the exigent-circumstances exception requires the police to wait patiently
outside because the suspects could destroy only some, but not all, of the evidence.
Neither can I agree that the potential existence of probable cause before the knock and
announce proves that the officers contrived this exigency. While there may be reasons to criticize
law-enforcement reticence in responding to evidence of criminal activity and while there may be
reasons to criticize law enforcement for failing to appreciate that they have probable cause that
criminal activity is afoot, I should not think the Fourth Amendment is one of them. It is far from
self evident that a restrained attitude toward the quantum of evidence needed to establish probable
cause is a police failing. Moreover, making the manufactured-exigency exception applicable
whenever courts (though not the police) conclude that probable cause existed before the encounter
Nos. 03-6298/6406 United States v. Chambers Page 12
would create a peculiar rule in which searches could be invalidated either because the police did not
have probable cause or because they did.
Nor do I agree with the majority’s other explanations for finding a manufactured
exigency—the decision to go to the Chambers’ house after receiving the anonymous tip rather than
seeking a warrant, the call to the DEA agent before arriving at the Chambers’ house and the number
of police that went to the house. The officers’ decision not to seek a warrant after the anonymous
tip on October 9 was no less likely a result of the tipper’s concern that “you need to get down there
quick before somebody gets hurt” than it was to gin up an exigent circumstance. See JA 210
(Freeman describing methamphetamine labs as “very explosive”). The decision to tell the DEA
agent that there would likely be a search later that day at the Chambers’ house was sensible as well.
In light of the tip, the trip to the Chambers’ house could well have led to sufficient evidence of
probable cause and consent to search or to the request for a warrant. Either way, the services of an
expert on methamphetamine laboratories might well be needed. And the number of officers that
went to the house had no impact on the exigency that arose and was again a sensible response to
what was plainly a serious investigation.
Despite my disagreement with the majority, I am not unmindful of the risk here—the
potential of undermining the warrant requirement and of doing so where it is needed most, the home.
Yet the traditional rules governing the exigent-circumstances exception, not the alteration of the test,
ought to address this concern. Police, for example, may not cry exigent circumstances whenever
probable cause exists that readily disposable drugs are in the home—no matter what the response
of the resident happens to be. Otherwise, all knock-and-talk encounters would generate the exigency
merely by the appearance of the officers. For my part, the question remains whether the resident’s
reaction is the verbal, visual or aural equivalent of “The police are here, destroy the drugs.” Here
it was. In most cases, it presumably will not be. See United States v. Renfro, 620 F.2d 569, 575 (6th
Cir. 1980) (“The government is not relying on the defendant’s knowledge of the police presence
alone as creating the exigent circumstances justifying the warrantless entry. [The defendants’]
actions in attempting to destroy evidence were a sudden intervening development which changed
the complexion of the entire incident and necessitated immediate action.”).
Nor will a ruling for the government in this case lead officers customarily to avoid seeking
a warrant (even when they already have probable cause) on the theory that the residents will react
to their presence in a way that creates an exigency. That is a gamble no sensible officer would
take—unless, as here, the officers were told to go to the house immediately because “somebody”
is going to “get[] hurt.” When no one answers the door (even if the residents are home), when no
one at the home is willing to talk about the matter or when no one at the home does anything
incriminating, the investigation will have reached a conspicuously low point. The officers will have
to leave, and the drug manufacturer will have the kind of warning that even the most elaborate
security system cannot provide.
For these reasons, I respectfully dissent.