                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-9-2006

USA v. Coles
Precedential or Non-Precedential: Precedential

Docket No. 04-2134




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                                     PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
                __________

                    No. 04-2134
                    __________

         UNITED STATES OF AMERICA

                         v.

               TERRANCE COLES
                                           Appellant


   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
          District Court No. 03-cr-00281-2
    District Judge: Honorable Harvey Bartle, III

                    __________

             Argued: November 7, 2005
                  ___________

Before: ROTH, FUENTES, and GARTH, Circuit Judges

              (Filed: February 9, 2006)
                         __________

                OPINION OF THE COURT
                      __________


PATRICK L. MEEHAN, Esquire
United States Attorney
LAURIE MAGID, Esquire
Deputy United States Attorney
for Policy and Appeals
ROBERT A. ZAUZMER, Esquire
Assistant United States Attorney
Senior Appellate Counsel
MARTIN HARRELL, Esquire (Argued)
Special Assistant United States Attorney

Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Attorneys for Appellee United States of America

JEFFREY M. LINDY, Esquire (Argued)
1800 John F. Kennedy Blvd., Suite 1500
Philadelphia, PA 19103

Attorney for Appellant Terrance Coles




                             -2-
GARTH, Circuit Judge.

       Terrance Coles (“Coles”) appeals his conviction and
sentence for drug-related crimes, challenging, inter alia, the
District Court’s denial of his motion to suppress physical
evidence. In that motion, Coles argued that the physical
evidence must be suppressed under the Fourth Amendment
because police officers had removed it from his hotel room
without a search warrant. The District Court concluded that
exigent circumstances – to wit, the imminent destruction of the
evidence – justified the warrantless search. We cannot agree.

       Concluding that the police impermissibly created the very
exigency which they claim permitted the warrantless search, we
hold that the exigent circumstances exception to the warrant
requirement is not applicable here. Accordingly, we will reverse
the District Court’s denial of Coles’s suppression motion, and
we will vacate Coles’s conviction and sentence and remand for
further proceedings.

                               I.

                              A.

        On June 7, 2002, Terrance Coles checked into room 511
at the Hawthorne Suites Hotel, 1100 Vine Street in Philadelphia.
Coles initially checked into the hotel for the weekend, but
subsequently arranged to stay for an additional 10 nights. After
Coles had been there for about a week, the hotel manager, David
Bradley (“Bradley”), sought unsuccessfully to locate Coles to
discuss payment arrangements. On June 14, 2002, Bradley let

                              -3-
himself into Coles’s room to see if the room was still occupied.
Once inside the room, he observed a plastic bag and small vials
containing a white substance. Suspecting that he had seen
illegal drugs in the room, Bradley called Federal Bureau of
Investigation (“FBI”) Special Agent John Warrington, and
described what he had seen.

       Later that afternoon, when Agent Warrington and local
narcotics officers met with Bradley at the hotel, Bradley
repeated the information that he had provided earlier to the FBI
on the telephone.1 Bradley then unlocked room 511 for the
officers. The officers entered the room and observed a plastic
bag and small vials containing a white substance, as well as an
empty holster. After a few minutes, the officers left the room,
without touching anything. The government concedes that this
entry was illegal and does not rely on anything seen on this visit
in establishing probable cause for the subsequent warrantless

       1
          The record is inconsistent as to the details of Bradley’s
initial observations inside room 511. Agent Warrington testified
that “[u]pon entering the room, [Bradley] said he observed what
he thought was drugs and, you know, things of - - items related
to drugs and what he thought was a holster.” But Agent
Warrington did “not recall exactly what he said to me, in terms
of the items.” Officer Barry Wilson testified that Bradley
reported seeing “something suspicious that appeared to be
narcotics,” specifically “[a] plastic bag with something white
inside and also some vials with something white inside.”
Bradley later testified at trial that he could not remember what
he had seen in room 511, but that “it appeared to me to be, you
know, paraphernalia, if you would.”

                                -4-
entry and search.

        Bradley next provided the officers with access to room
514, located directly across the hall from room 511, where the
officers established surveillance by using the peephole in the
door. At some point, Sgt. Jonathan Josey, the supervising
officer, sent Officer Barry Wilson to check additional records on
Terrance Coles and perhaps to secure a search and seizure
warrant.2 As Officer Wilson approached the elevator to leave
the fifth floor, he noticed two men exiting the elevator, at least
one of whom carried a black nylon backpack. After Officer
Wilson watched the two men enter room 511, he returned to
room 514 to inform the officers positioned there that two men
had just entered room 511. There is no indication that either of
the two men, later identified as Coles and co-defendant Jonathan
Jackson, were aware of the police surveillance, either then or at
any time thereafter.

        Despite having the room under covert surveillance, the
officers decided to enter room 511. Sgt. Josey, Officer Wilson
and two other officers, all dressed in plain clothes with
identification badges hanging around their necks, positioned
themselves in two parallel columns outside the entrance to room
511. Sgt. Josey knocked on the door, attempting to gain access

       2
           During the suppression hearing, neither Agent
Warrington nor Officer Wilson mentioned that Officer Wilson
left to secure a warrant. Sgt. Josey testified at trial, however,
that “[t]he initial plan was to stand by and monitor the room for
any activity, while Police Officer Wilson went back to our
headquarters and secured a search and seizure warrant.”

                               -5-
by a subterfuge. He first announced “room service” in an
attempt to get the two men to open the door. A man replied that
he had not ordered anything and refused to open the door. (Co-
defendant Jackson later testified that the man answering was
Coles). Sgt. Josey knocked a second time, this time announcing
that he was from maintenance to fix a reported leak. A voice
again responded, saying there was no leak and again refused to
open the door. Sgt. Josey knocked a third time, more forcefully,
identifying himself as a police officer and telling the occupants
to “open the door, this is the police.”

       At this critical juncture, the officers heard the sounds of
rustling and running footsteps.3 Sgt. Josey attempted to open the
door using an electronic passkey provided by Bradley, but the
officers could not enter because there was a bar latch over the
door. After partially opening the door with the passkey, the
officers heard the sound of a toilet flushing and the sounds of
more running.4


       3
          The accounts of the participating officers differ here.
Agent Warrington, who remained behind the door in room 514,
heard “[l]oud banging, intermittent pounding and scuffling.”
Officer Wilson heard “what sounded to be rustling about,
somebody running back and forth.” Sgt. Josey (who testified at
trial) heard “what appeared to be footsteps going away from the
door.”

       4
         The District Court found that the officers “heard the
sounds of rustling, running footsteps and a flushing toilet”
before attempting to open the door. (emphasis added). This is

                               -6-
       Coles eventually opened the door for the officers. Upon
entering the room, the police discovered, among other things,
several containers of cocaine base “crack,” multiple bags
containing cocaine, 25 vials of “crack” cocaine, approximately
$2,000 in cash, and a firearm inside of Coles’s open carrying
bag. The street value of the confiscated drugs was $31,000.
Coles and Jackson were then arrested.

       After securing the room, the police obtained and executed
search warrants in order to search the room further and to search
Coles’s rental car. The application for the search warrants made
no mention of the first illegal entry into room 511. No
additional evidence or contraband was discovered after the
warrants had been secured.

                               B.

        Coles was indicted on April 29, 2003 by a grand jury
sitting in the Eastern District of Pennsylvania. The indictment
charged Coles with possession of a firearm in furtherance of
drug trafficking, in violation of 18 U.S.C. § 924(c) (Count 1),
and possession with intent to distribute cocaine base (crack) and
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts 2 and 3).5


not consistent with the record. According to the officers’
accounts, they heard the sound of a toilet flushing only after
attempting to gain entry by using the passkey.
       5
        The indictment also charged co-defendant Jonathan
Jackson with a fourth count – possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 4).

                               -7-
        On August 6, 2003, Coles filed a pre-trial motion to
suppress the evidence seized from his hotel room, claiming
violations of his Fourth Amendment rights. The District Court
conducted an evidentiary hearing on Coles’s suppression motion
on or around October 15, 2003, at which Agent Warrington and
Officer Wilson testified for the government. Coles argued that
based on the information provided by the hotel manager, the
police lacked probable cause to enter the room. He argued, in
the alternative, that probable cause or not, the warrantless entry
into the hotel room could not be justified under the exigent
circumstances exception because the officers had created those
circumstances in attempting to gain access to the room.

       The District Court denied the suppression motion the
next day. The District Court found that the police had probable
cause based on their initial conversation with Bradley at the
hotel, and that, in any event, the police gained additional
information to support probable cause after they had knocked on
the door to room 511 and announced their presence – to wit, the
rustling, running footsteps and flushing toilet. The District
Court also found that the likelihood of imminent destruction of
evidence created exigent circumstances, thus justifying the
warrantless entry and search. However, the District Court made
no explicit finding as to whether the police created those exigent
circumstances.



Jackson pled guilty to Counts 2 and 3 on October 26, 2003, and
was sentenced to 9 years imprisonment on January 9, 2004.
Counts 1 and 4 were dismissed as to Jackson after his
sentencing.

                               -8-
       The case proceeded to trial, and Coles was subsequently
convicted by a jury of all three counts of the indictment.6 The
District Court sentenced Coles to 138 months of incarceration
on or around April 14, 2004. Coles thereupon filed the instant
appeal, seeking, inter alia, our review of the District Court’s
denial of his suppression motion.7

                               II.

        The District Court had subject matter jurisdiction over
this federal criminal action pursuant to 18 U.S.C. § 3231. We
have appellate jurisdiction to review the judgment of conviction
pursuant to 28 U.S.C. § 1291 and the final sentence pursuant to


       6
       Coles also moved for reconsideration of the denial of his
motion to suppress. The District Court denied that motion on
October 24, 2003.
       7
         In addition to the suppression issue, Coles raises two
other issues on appeal. First, he argues that the District Court
erred in denying his motion for judgment of acquittal on Count
1 – possession of a firearm in furtherance of drug trafficking.
Coles submits that the evidence failed to establish the requisite
connection between the firearm and the drug offense to sustain
a conviction as to that count. Second, he challenges his sentence
on Blakely/Booker grounds, arguing that the District Court
engaged in impermissible fact-finding during the sentencing
phase. Because we will reverse the District Court on the
suppression issue, we do not reach the remaining issues raised
by Coles’s appeal.


                               -9-
18 U.S.C. § 3742. We review the denial of a suppression
motion for clear error as to the underlying facts, but exercise
plenary review as to its legality in light of the district court’s
properly found facts. United States v. Givan, 320 F.3d 452, 458
(3d Cir. 2003).

                               III.

                               A.

      We begin our discussion with the relevant constitutional
text. The Fourth Amendment to the federal Constitution
provides:

       The right of the people to be secure in their persons,
       houses, papers, and effects, against unreasonable
       searches and seizures, shall not be violated, and no
       Warrants shall issue, but upon probable cause, supported
       by Oath or affirmation, and particularly describing the
       place to be searched, and the persons or things to be
       seized.



U.S. CONST. amend IV. It protects people in their homes from
unreasonable searches and seizures by permitting only a neutral
and detached magistrate to review evidence and draw inferences
to support the issuance of a search warrant. Johnson v. United
States, 333 U.S. 10, 13-14 (1948). This Fourth Amendment
protection extends to guests staying in hotel rooms. Stoner v.
State of Cal., 376 U.S. 483, 490 (1964) (“No less than a tenant

                              -10-
of a house . . . a guest in a hotel room is entitled to constitutional
protection against unreasonable searches and seizures.”)
(internal citations omitted).

       Warrantless searches and seizures inside someone’s
home (or in this case, a hotel room) are presumptively
unreasonable unless the occupants consent or probable cause
and exigent circumstances exist to justify the intrusion.
Steagald v. United States, 451 U.S. 204, 211 (1981); Payton v.
New York, 445 U.S. 573, 586 (1980); see also United States v.
Rubin, 474 F.2d 262, 268 (3d Cir. 1973) (“Probable cause to
believe contraband is present is necessary to justify a
warrantless search, but it alone is not sufficient . . . Mere
probable cause does not provide the exigent circumstances
necessary to justify a search without a warrant.”). Consent is
not at issue in this appeal, and Coles does not challenge the
District Court’s finding of probable cause. This appeal thus
requires us to reexamine the exigent circumstances exception to
the warrant requirement.

        Examples of exigent circumstances include, but are not
limited to, hot pursuit of a suspected felon, the possibility that
evidence may be removed or destroyed, and danger to the lives
of officers or others. U.S. v. Richard, 994 F.2d 244, 247-48 (5th
Cir. 1993); see also Rubin, 474 F.2d at 268-69. In these limited
situations,8 the need for effective law enforcement trumps the

       8
        The Supreme Court has “emphasized that exceptions to
the warrant requirement are ‘few in number and carefully
delineated,’ . . . and that the police bear a heavy burden when
attempting to demonstrate an urgent need that might justify

                                -11-
right of privacy and the requirement of a search warrant, thereby
excusing an otherwise unconstitutional intrusion. Warden v.
Hayden, 387 U.S. 294, 298-99 (1967). Exigent circumstances,
however, do not meet Fourth Amendment standards if the
government deliberately creates them. United States v. Acosta,
965 F.2d 1248, 1254 (3d Cir. 1992); United States v. Duchi, 906
F.2d 1278, 1284-85 (8th Cir. 1990); United States v.
Timberlake, 896 F.2d 592, 597 (D.C. Cir. 1990); United States
v. Thompson, 700 F.2d 944, 950 (5th Cir. 1983).

       The presence of exigent circumstances is a finding of
fact, which we review for clear error. Richard, 994 F.2d at 248.
The District Court found that exigent circumstances – the
possibility of evidence being destroyed – existed after the
officers knocked on the hotel room door and demanded entry.
Coles does not challenge that finding on appeal. He asks us to
review only the second prong or requirement of the exigency
exception to the warrant requirement – i.e., whether the police
improperly created the exigency.9 Our attention is thus focused


warrantless searches . . . .” Welsh v. Wisconsin, 466 U.S. 740,
749-50 (1984) (quoting United States v. United States District
Court, 407 U.S. 297, 318 (1971)).
       9
          As we have stated, the District Court never made an
explicit finding as to whether the police impermissibly created
the exigency. Remand for further findings of fact and
conclusions of law is nevertheless unnecessary, inasmuch as a
finding that the police did not create the exigency is evidently
implicit in the District Court’s conclusion that exigent
circumstances justified the warrantless search.

                              -12-
upon this second prong for the remainder of our discussion.

                                B.

       We turn at the outset to Johnson v. United States, supra.
There, the Supreme Court considered the Fourth Amendment
implications of a warrantless search on a very similar set of facts
to those presented here. In Johnson, the police obtained
information from an informant that persons were smoking
opium in the Europe Hotel. When the officers went to the hotel
to investigate, they immediately recognized the smell of opium,
and then traced the odor to Room 1. The officers did not know
who occupied the room, and so they knocked and announced
themselves. After a slight delay, there was “some shuffling or
noise” in the room and then the defendant opened the door. The
lead officer told the defendant that “I want to talk to you a little
bit,” and the defendant “stepped back acquiescently and
admitted [the officers].” 333 U.S. at 12. The officers proceeded
to search the room, uncovering incriminating evidence of drugs
and smoking apparatus.

        The Supreme Court found that the search violated the
Fourth Amendment. The government had offered no reason “for
not obtaining a search warrant except the inconvenience to the
officers and some slight delay necessary to prepare papers and
present the evidence to a magistrate.” Id. at 15. The Court
noted that the following factors were relevant to its
determination: (1) no suspect had been fleeing or likely to take
flight; (2) the search was of a hotel room [permanent premises],
not of a movable vehicle; and (3) no evidence was threatened
with removal or destruction. Id. Finally, the Court observed

                               -13-
that “[i]f the officers in this case were excused from the
constitutional duty of presenting their evidence to a magistrate,
it is difficult to think of a case in which it should be required.”
Id.

       Notwithstanding the striking similarity between Johnson
and the present case, the government attempts to distinguish
Johnson, arguing that “in that case, the Supreme Court did not
rule that officers impermissibly created exigent circumstances;
instead, it noted that the government had not established an
exigency.” Appellee’s Br. at 32 n.7. Under a fair reading of
Johnson as applied here, however, the police in the instant case
had no justification for knocking and demanding entry to
Coles’s hotel room before first securing a warrant.

         In this case, as in Johnson, no suspect was fleeing and the
search was of permanent premises, i.e., Coles’s hotel room.
More importantly, prior to the police announcing themselves at
the hotel room door, police surveillance had not been detected
by Coles and no evidence was being destroyed at that point.
Whatever exigencies might have arisen after the police
announced their presence at the door cannot excuse their failure
to first obtain a search warrant. Indeed, this case constitutes an
a fortiori application of Johnson inasmuch as the police here
attempted to gain access by subterfuge.10

       10
         The police officers first asserted “room service” in an
effort to get the occupants of room 511 to open the door.
Because this ploy was unsuccessful, they then asserted
“maintenance,” which was also unsuccessful. It was only then
that they announced themselves as police officers.

                               -14-
        While Johnson casts serious constitutional doubt upon
the warrantless entry of Coles’s hotel room, we do not conclude
our discussion with that decision. Leaving aside the factual
similarities between Johnson and the instant appeal, we read
Johnson as focusing the Fourth Amendment inquiry upon the
reasonableness and propriety of the actions taken by the police
preceding the warrantless search. That inquiry is also essential
in the police created-exigency context.

                                C.

        The Fifth Circuit, which appears to have taken the lead
in this area, generally requires exigent circumstances to exist
before the police decide to knock and announce themselves at
the door. In this respect, United States v. Richards, supra, is
instructive. In that case, officers approached a motel room
looking for a man suspected of drug trafficking. After the
officers knocked on the door and announced their presence, they
heard people talking softly and drawers slamming. Fearing that
they were in danger and that evidence was being destroyed, the
officers entered the room without a warrant.

       The Fifth Circuit affirmed the district court’s finding that
the officers created the exigent circumstances by their own
actions – i.e., by announcing their presence when they could
have easily waited for and obtained a search warrant. In
reaching that conclusion, the court “distinguish[ed] between
cases where exigent circumstances arise naturally during a delay
in obtaining a warrant and those where officers have deliberately
created the exigent circumstances.” 994 F.2d at 248 (citations
omitted). The court emphasized that exigent circumstances did

                               -15-
not arise until the agents announced themselves at the door. By
that time, the agents had successfully and covertly secured the
room, thus allowing them to maintain their surveillance pending
the issuance of a warrant. Id. at 249.

       As Richards makes clear, the Fifth Circuit, in assessing
whether police impermissibly create exigent circumstances,
focuses on the reasonableness and propriety of the officers’
actions and investigative tactics leading up to the warrantless
entry. See U.S. v. Gould, 364 F.3d 578, 590 (5th Cir. 2004);
U.S. v. Rico, 51 F.3d 495, 502 (5th Cir. 1995).11 Exigent
circumstances will not provide an exception to the warrant
requirement where those actions are found to be unreasonable.
Compare United States v. Munoz-Guerra, 788 F.2d 295, 298
(5th Cir. 1986) with United States v. Jones, 239 F.3d 716, 720
(5th Cir. 2001).12


       11
         The Fifth Circuit employs two levels of inquiry: “first
whether the officers deliberately created the exigent
circumstances with the bad faith intent to avoid the warrant
requirement, and second, even if they did not do so in bad faith,
whether their actions creating the exigency were sufficiently
unreasonable or improper as to preclude dispensation with the
warrant requirement.” Gould, 364 F.3d at 590.
       12
          In Munoz-Guerra, officers responded to anonymous
tips of drug activity by establishing surveillance around a
residence. After noticing some suspicious activity, the officers
walked along the side of the residence and noticed marijuana in
plain view through a window. Thereupon, the officers knocked
on the patio door, and one of the occupants motioned through

                              -16-
        Other courts of appeals have followed the Fifth Circuit’s
lead. They also look to the reasonableness and propriety of the
actions and investigative tactics of the police which precede the
exigency relied upon to justify warrantless entry. See, e.g.,
United States v. Chambers, 395 F.3d 563, 566 (6th Cir. 2005)
(noting that the exigent circumstances exception cannot be met
“if the police controlled the timing of the encounter giving rise
to the search” and requiring “some showing of deliberate
conduct on the part of the police evincing an effort intentionally


the door that he needed to get a key. Fearing that he was in fact
going to retrieve a weapon, the officers broke through the door
and arrested the occupants.
       The Fifth Circuit rejected the agents’ approach to the
patio door as unreasonable. The court noted that it was possible
to secure the residence covertly from the outside, and that the
officers knew that their putative “knock and talk” investigative
strategy would require a warrantless entry. 788 F.2d at 298.
       In Jones, by contrast, officers approached an apartment
to investigate complaints of criminal activity and to identify the
occupants. The officers observed a firearm in plain view
through an open apartment door, which compelled them to enter
the apartment without a warrant.
       The Jones court held that exigent circumstances justified
the warrantless entry. It noted that the “knock and talk”
procedure was a reasonable investigative tactic under the
circumstances, inasmuch as the police did not observe any
criminal activity before approaching the apartment and did not
know that the occupants of the apartment were armed until they
were directly in front of the open apartment door. 239 F.3d at
721-22.

                              -17-
to evade the warrant requirement”) (citation omitted); United
States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990) (adopting
antecedent inquiry into tactics leading up to exigency).

        As compared to the decisions in those courts, however,
the Second Circuit construes the exigency doctrine more
broadly. The Second Circuit provides greater latitude to law
enforcement officers in disregarding the warrant requirement.
See United States v. MacDonald, 916 F.2d 766 (2d Cir. 1990)
(en banc). MacDonald announced the following principle to
govern determinations about whether the police impermissibly
create exigent circumstances: “when law enforcement agents act
in an entirely lawful manner, they do not impermissibly create
exigent circumstances.” MacDonald, 916 F.2d at 772. The
government here relies heavily on MacDonald to support its
position that the warrantless search of Coles’s hotel room passes
constitutional muster.

       In MacDonald, an undercover officer had entered an
apartment and bought drugs. The officer then immediately left
the building and reported his observations to other task force
members waiting outside. Approximately ten minutes after the
controlled purchase, the undercover officer returned to the
apartment with reinforcements. They knocked and announced
their presence. Agents watching the rear of the apartment
radioed to the agents stationed in the front that the occupants
were trying to escape through the back door. The agents at the
apartment door then used a battering ram to force entry.

      The Second Circuit found that the agents’ conduct did not
impermissibly create the exigent circumstances to circumvent

                              -18-
the warrant requirement. Id. at 771. The court noted that the
agents acted properly in knocking on the door and announcing
themselves.

       Contrary to the Fifth Circuit, the reasonableness of the
police investigative tactics precipitating the exigency does not
seem to figure into the Second Circuit’s analysis. In
MacDonald, as in Richard, the police created the exigency by
announcing their presence under circumstances that were likely
to lead to a warrantless search. We find it hard to reconcile
MacDonald with Richard. It suggests to us that the Second and
Fifth Circuits have adopted different inquiries for purposes of
deciding whether police impermissibly create exigent
circumstances.

        Although MacDonald is an en banc opinion of the
Second Circuit, we are hard-pressed to agree with the majority
opinion. We find the dissent in MacDonald much more attuned
to the governing principles of the exigency exception because
the dissent concentrates on the reasonableness of the actions and
investigative tactics of the police which precede their
warrantless entry. As the MacDonald dissent noted, “it [is]
difficult to conceive of the officers’ return to the apartment [10
minutes after their purchase of drugs] as anything other than
pretext, in an effort to precipitate a crisis that did not then exist.”
Id. at 776 (Kearse, J., dissenting). The MacDonald dissent
further noted that the agents arrived at the door with a battering
ram, “plainly anticipat[ing] that the announcement of their
identity would precipitate an exigency.” Id. Judge Kearse in
dissent thus concluded that “[w]e should not endorse such
contrivances by law enforcement officials in their efforts to

                                 -19-
circumvent the Fourth Amendment’s warrant requirement.”
Id.13

        Like our sister courts of appeals to which we have
referred and like the dissent in MacDonald, we are guided by
the principle that in order to determine whether the police
impermissibly manufacture or create exigent circumstances, we
must look to the reasonableness and propriety of their actions
and investigative tactics preceding their warrantless entry.
Mindful of that principle, we now examine the District Court’s
finding of exigent circumstances.

                                D.

       Our analysis here is particularly informed by three

       13
           We have, as the government points out, cited to
MacDonald in United States v. Acosta, 965 F.2d 1248 (3d Cir.
1992). Acosta, however, is readily distinguishable from this
case. First, the “Coles” officers here did not possess an arrest
warrant, as they did in Acosta. Second, the officers here did not
speak truthfully in identifying themselves at the door, as this
court found that they had in Acosta. Third, the officers here had
been inside of room 511, thus learning of the illegal drugs in the
room. And fourth, the officers here had every intent to enter
room 511 without a warrant. In short, it is clear that the officers
in this case engaged in pretextual conduct in order to gain access
to Coles’s hotel room. The government’s reliance on Acosta is
therefore misplaced.



                               -20-
overarching factors: (1) the existence of probable cause; (2) the
initial decision to gain entry by subterfuge; and (3) the covert
and undetected surveillance. We address each of these factors
below.

       In Johnson, which we discussed earlier, the Supreme
Court emphasized that “[a]t the time entry was demanded the
officers were possessed of evidence which a magistrate might
have found to be probable cause for issuing a search warrant.”
333 U.S. at 13. In this case, too, the police possessed probable
cause based on the initial observations of Bradley, the hotel
manager. Based on this evidence, the police could have
obtained a search warrant for Coles’s hotel room.

       Contrary to the government’s characterization, this case
does not present the situation where the police reasonably
attempted to utilize the “knock and talk” investigative tactic.
Having knowledge of criminal activity inside room 511, both
from Bradley’s observations and from their own earlier
observations, the police had no legitimate reason to utilize the
“knock and talk” procedure. Compare Jones, 239 F.3d at 721
(“Because the officers were not convinced that criminal activity
was taking place and did not have any reason to believe that the
occupants were armed, the “knock and talk” procedure was a
reasonable investigative tactic under the circumstances.”). In
any case, in identifying themselves as hotel personnel providing
“room service” or “maintenance,” the police resorted to
subterfuge, clearly manifesting their intention to mislead the
occupants into believing that they were not police officers. At
the very least, the actions of the officers at this time
demonstrated that the police had no intention of merely

                              -21-
investigating matters further or perhaps obtaining consent to
search.14

       As the record plainly indicates, the officers decided to
enter room 511 without a warrant. It was that decision to
conduct a warrantless entry and search of the room, without any
urgent need to do so, that impermissibly created the very
exigency relied upon by the government in this case. See United
States v. Timberlake, 896 F.2d 592, 597 (D.C. Cir. 1990)
(holding that police created exigent circumstances where “[t]he
record contains no evidence that the police, when they knocked
on the door, intended anything other than a warrantless search
of the apartment”).

        Nor is this a case where Coles had detected the law
enforcement surveillance, thereby creating an urgent need for
the officers to bypass the warrant requirement. See Jones, 239
F.3d at 721 (“[The Fifth Circuit] has limited the exigent
circumstances exception to situations when a suspect detects law
enforcement surveillance rather than when officers make their
presence known.”). There is no indication in the record that
Coles was aware of the surveillance prior to the officers’
decision to gain entry. Compare 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

       14
         Under these circumstances, the government’s assertion
that the police knocked on the hotel room door to “seek
information” or “to ask for consent to search,” Appellee’s Br. at
25, cannot be taken seriously.

                              -22-
and was preparing to destroy evidence); U.S. v. Rodea, 102 F.3d
1401, 1408 (5th Cir. 1996) (defendant’s detection of police
officer conducting surveillance outside of mobile home where
marijuana had been delivered created exigent circumstances
justifying warrantless search). Consequently, the police here
could have maintained their surveillance until a search warrant
had been secured.15

         We emphasize that the record reveals no urgency or need
for the officers to take immediate action, prior to the officers’
decision to knock on Coles’s hotel room door and demand entry.
It is, of course, true that once the officers knocked on the door
and announced, “open the door, this is the police,” they heard
sounds indicating that evidence was being destroyed. But that
exigency did not arise naturally or from reasonable police
investigative tactics. Quite to the contrary, the officers, after
their pretextual announcements had failed to gain entry to room
511, deliberately created the exigency by knocking on the door
to room 511 and demanding entry.

                                IV.

       Focusing on the reasonableness of the officers’
investigative tactics triggering the exigency, we conclude that
the police impermissibly manufactured the exigency. We

       15
          Although the record is not clear as to whether Officer
Wilson was dispatched to secure a search warrant, see note 2
supra, it is evident that there was sufficient time for the officers
to have remained in surveillance pending the issuance of a
warrant.

                               -23-
therefore hold that the exigent circumstances exception to the
warrant requirement does not justify the warrantless entry and
search of Coles’s hotel room. As a result, the physical evidence
that led to Coles’s conviction, which evidence was the product
of an unlawful search and seizure, should have been suppressed.

       Accordingly, we will reverse the District Court’s denial
of Coles’s suppression motion, and we will vacate Coles’s
conviction and sentence and remand to the District Court for
further proceedings consistent with this opinion.

U.S v. Coles, No. 04-2134

__________________________________________________

ROTH, Circuit Judge, dissenting:

       The majority’s opinion is based on the dubious
proposition that two rights, as determined by the Supreme Court,
make a wrong. More concretely, the majority’s decision to
focus the exigency analysis on the subjective intent of the
investigating officers, and the subsequent, haphazard reaction
the investigation generates on the part of the alleged criminal,
produces the “could’ve, should’ve, would’ve” analysis that is so
anathema to our judicial role. For these reasons, I respectfully
dissent.

      As an initial matter, the majority’s central reliance on
Johnson is misplaced. The majority seemingly accepts the
government’s argument that in Johnson “the Supreme Court did
not rule that officers impermissibly created exigent

                              -24-
circumstances; instead, it noted that the government had not
established an exigency”, Maj. Op. at 14. In this regard, the
majority and the government are correct – Johnson was not
about exigent circumstances. In Johnson, the Supreme Court
specifically found that “[n]o evidence or contraband was
threatened with removal or destruction.” 333 U.S. at 15. This
case, however, is entirely about exigency. As opposed to the
opium being smoked in Johnson, here the police heard the sound
of a toilet flushing. Subsequently, the police found drugs in and
around the toilet.

        Nonetheless, the majority argues that here, as in Johnson,
the police had no justification for knocking and demanding entry
to Coles’s hotel room before securing a warrant. The majority’s
use of Johnson ignores the salient, distinguishing factor with the
instant case; here, there was a exigency.

        With this misreading of Johnson, the majority then
ignores the point that knocking and attempting to engage a
person in conversation are not violations of the Fourth
Amendment. See generally Florida v. Bostick, 501 U.S. 429,
439 (1991) (noting that “[t]he Fourth Amendment proscribes
unreasonable searches and seizures; it does not proscribe
voluntary cooperation.”). Also, entry into a dwelling in the face
of exigent circumstances when the police have probable cause
is not a violation of the Fourth Amendment. Payton, 445 U.S.
586-87. The majority feels, however, that these two otherwise
constitutional actions performed in sequence are greater than the
sum of their parts and, therefore, constitute a violation of the
Fourth Amendment because the police could have and,
consequently, should have waited to obtain a warrant.

                              -25-
        The majority’s math is not supported by the Fourth
Amendment. The majority implicitly acknowledges the fact that
its analysis is constitutionally unmoored when it categorizes
conflicting Fifth and Second Circuit precedent. According to
the majority, the Fifth Circuit correctly focuses on the
reasonableness of the police investigative tactics giving rise to
the exigency while the Second Circuit incorrectly focuses on the
legality. Maj. Op. at 18, 19. The majority’s reasonableness test,
however, imposes a standard for police behavior that is not
derived from the Constitution.

       The Fourth Amendment to the Constitution protects the
people “against unreasonable searches and seizures.” U.S.
CONST. amend IV. Such unreasonable searches are “illegal” in
the sense that they violate one’s constitutional rights. In order
to give import, however, to the difference between Fifth Circuit
and Second Circuit jurisprudence, one must acknowledge a
category of police behavior which is legal, i.e., not violative of
the Constitution, yet unreasonable. Otherwise, the Fifth
Circuit’s use of “unreasonable” would be synonymous with the
Second Circuit’s use of “legal.” The majority, however, goes to
great lengths to distinguish the two competing threads of
jurisprudence. The result is a reasonableness inquiry completely
devoid of a base in the Fourth Amendment.

       The practical flaw with the reasonableness inquiry is best
captured in the majority’s statement that the police “had no
legitimate reason to utilize the ‘knock and talk’ procedure.”
Maj. Op. at 22. First, the majority’s use of quotation marks
around the phrase ‘knock and talk’ is a result of this
investigatory technique entering the police lexicon due to its

                              -26-
compatibility with the Fourth Amendment in a way similar to
the association of Miranda with the Fifth Amendment. See
Gould, 364 F.3d at 590 (noting that the “‘knock and talk’ police
investigatory practice has clearly been recognized as
legitimate.”). The majority’s holding, however, disturbs this
venerable precedent.

       Second, the assertion that there was no legitimate reason
for further investigation is purely speculative.              By
communicating with Coles, the police could have learned
whether he was carrying a weapon, with whom he was
expecting to transact business, or other bits of information
which individuals are prone to disclose in like circumstances.
The potential information would help the police meet the
conviction burden of reasonable doubt – a concern reflected in
the Supreme Court’s observation that:

       Law enforcement officers are under no constitutional
       duty to call a halt to a criminal investigation the moment
       they have the minimum evidence to establish probable
       cause, a quantum of evidence which may fall far short of
       the amount necessary to support a criminal conviction.



Hoffa v. United States, 385 U.S. 293, 310 (1966). The
majority’s opinion allows Coles’s malfeasance to restrict law
enforcement’s ability to support a criminal conviction and is,
therefore, an unwarranted departure from Supreme Court
precedent.



                              -27-
       Finally, the majority’s opinion, and the adoption of the
Fifth Circuit’s jurisprudence, can only be implemented via an
inquiry into the subjective intent of the officers who created the
exigency. As the majority notes, the first step in the analysis is
to ask “whether the officers deliberately created the exigent
circumstances with the bad faith intent to avoid the warrant
requirement.” Gould, 364 F.3d at 590; Maj. Op. at n.11. Such
an inquiry is inconsistent with this Circuit’s precedent. Acosta,
965 F.2d at 1254 (quoting Scott v. United States, 436 U.S. 128,
136 (1978), for the proposition that “subjective intent alone . .
. does not make otherwise lawful conduct illegal or
unconstitutional.”).

       In contrast, the Second Circuit, whose precedent, I
believe, is more consistent with our Circuit’s in this area, relies
on an objective test when analyzing exigent circumstances.
MacDonald, 916 F.2d at 769. In this regard, the Second
Circuit's focus is truer to Supreme Court precedent. See
generally Horton v. California, 496 U.S. 128, 138 (1990)
(arguing that “evenhanded law enforcement is best achieved by
the application of objective standards of conduct, rather than
standards that depend upon the subjective state of mind of the
officer.”).

       A correct inquiry analyzes each of the interactions
between the police and Coles.16 The first interaction between
the police and Coles was Sgt. Josey’s announcement of “room


       16
           I note that the only issue on appeal vis-à-vis the motion to
suppress is whether the police improperly created the exigency. Maj.
Op. at 11.

                                 -28-
service.”      The second interaction was Sgt. Josey’s
announcement that he was seeking entry to fix a reported leak.
The third interaction was Sgt. Josey’s announcement “open the
door, this is the police.” Upon then hearing the sound of a
flushing toilet, the police entered the apartment. Since none of
the three interactions violated the Fourth Amendment, and since
entry was made only on hearing the toilet flushing, I would
affirm the District Court’s denial of Coles’s motion to suppress
the physical evidence.




                              -29-
