          United States Court of Appeals
                        For the First Circuit


No. 16-2005

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                            CHRISTIAN DENT,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]


                                Before

                          Howard, Chief Judge,
                  Kayatta and Barron, Circuit Judges.


     Jeffrey W. Langholtz on brief for appellant.
     Julia M. Lipez, Assistant United States Attorney, and Richard
W. Murphy, Acting United States Attorney, on brief for appellee.



                            August 8, 2017
           KAYATTA,     Circuit    Judge.      Defendant    Christian      Dent

appeals the district court's denial of his motion to suppress

evidence that was seized from his apartment pursuant to a warrant.

While two law enforcement agents were seeking the warrant, other

agents entered the apartment, detained the individuals who were

present, and, in the ostensible course of securing the premises,

came upon some of the evidence that was later seized.                      Dent

contends   that   the   officers    exploited    their     presence   in    the

apartment in so egregious a manner as to foreclose the application

of any relevant exceptions to the Fourth Amendment's exclusionary

rule.   Because it is undisputed that the warrant was not based on

information gleaned from the warrantless seizure and sweep of

Dent's apartment, and because the officers' conduct did not rise

to a level that might arguably justify a departure from the normal

rules   governing    suppression,    we     affirm   the   district   court's

ruling.

                                     I.

           On November 11, 2014, law enforcement agents monitoring

a court-authorized wiretap determined that a cell phone associated

with an individual named Troy Jones appeared to be moving from New

York to Maine.      Eventually, the phone was traced to the Lewiston-

Auburn area of Maine.      On November 12, the wiretap intercepted a

call from Jones--using a different phone than the one that the

agents had been tracking--to Dent.          During that call, Dent stated


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that "he fixed it, he tied that shit up, gave it to [Jones's

girlfriend, later identified as Dominique Jackson,] and told her

to put it up."    Dent further noted that Jackson was "still in the

crib."

           Federal Bureau of Investigation Special Agent Patrick

Clancy,   who    had    been   overseeing   the   wiretap   operation   and

monitoring the wiretap on the days in question, testified at the

suppression hearing that he understood the conversation to mean

that Jackson was in an apartment associated with Dent and that she

possessed individually bagged allotments of crack cocaine, which

Dent had prepared from powder cocaine.        Clancy also testified that

he believed that Dent was not in the apartment at the time of the

intercepted call.

           Based on his understanding of the situation, Clancy

decided not only to apply for a warrant to search the apartment,

but also "[t]o secure the residence in advance of obtaining a

search warrant."       Clancy testified that his decision was informed

by concern that the ready-to-sell drugs would be moved, as well as

concern about the safety of officers if they first arrived to

execute the warrant after Dent returned.          Clancy further testified

that he considered but decided against establishing a perimeter

around the apartment building, as Dent had previously been able to

recognize and "identif[y] some of the surveill[ing] [officers] on

the street by name"; Clancy stated that he "was concerned that an


                                    - 3 -
occupant inside or somebody passing by [the residence] might see

law enforcement in the area, [and] alert Mr. Dent or others to the

presence of law enforcement," which might thereby lead to the

disposal or relocation of the drugs that they suspected to be in

the apartment.       Clancy also acknowledged that he was "looking for

a conclusion to the investigation" of Dent, i.e., that he was

"hoping to catch somebody with a load of drugs," and that the

authorization for the relevant wiretap was about to expire.

             While   Clancy    and    another       agent     prepared      the   search

warrant   application,        three        police    officers        went   to    Dent's

apartment for the stated purpose of "preserv[ing] any evidence in

anticipation of th[e] search warrant."                      One officer stationed

himself outside of the apartment building, while the other two

officers entered the building and knocked on the door of the

apartment in question.          The officers were wearing clothing and

gear that indicated that they were law enforcement agents, but

they did not identify themselves as such when they knocked on the

door. When Jackson opened the door and saw the officers, she tried

to slam the door shut, but the officers pushed their way into the

residence,    forced    Jackson       to    the     ground,    and    placed      her   in

handcuffs.

             While they were subduing Jackson, the officers heard

music that had been playing elsewhere in the apartment decrease in

volume, which led them to believe that another individual was


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present.   With guns drawn, the officers began to "clear every room

in the apartment." When they reached the final room to be cleared,

they opened the closed door and observed an individual--later

identified as Jonathan Banyan--attempting to stuff something under

an air mattress.     After placing Banyan in handcuffs, the officers

"searched the vicinity of where he had his hand underneath the air

mattress and saw a baggie of what [they] believed at the time was

drugs," which they "left" undisturbed.             According to one of the

officers, they looked under the air mattress "[t]o make sure the

room was safe," but did not "search for any other contraband during

the security sweep" because they did not have a warrant.

            After    the   officers     finished    their    sweep    of    the

apartment, they detained Jackson and Banyan in separate rooms and

waited for the warrant to be issued. During this time, the officer

who had been stationed outside of the building joined the other

officers inside, as did at least one additional officer who had

not been on site for the initial entry.                  Upon issuance and

execution of the search warrant several hours after the initial

entry,    officers   seized   various    pieces     of   evidence    from   the

apartment.   In addition to "126.1 grams of cocaine base . . . found

in a package inside of a black bag," officers discovered an

unloaded revolver in the kitchen ceiling, small quantities of

cocaine     base     scattered   throughout        the    master     bedroom,

approximately 80.3 grams of cocaine base in the bathroom ceiling,


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approximately eight grams of heroin inside a cigarette box, and a

digital scale with drug residue in a kitchen closet.

           After    the   district      court   denied   Dent's   motion    to

suppress the evidence that had been seized from the apartment,

Dent pled guilty to one count of conspiracy to possess with intent

to distribute cocaine and twenty-eight grams or more of cocaine

base in violation of 21 U.S.C. §§ 841(a)(1) and 846.               Dent was

subsequently sentenced to 114 months of imprisonment and five years

of   supervised    release.       However,      Dent's   guilty   plea     was

conditional, preserving his right to pursue this appeal of the

district court's refusal to suppress the evidence seized pursuant

to the warrant.

                                      II.

           In reviewing a district court's disposition of a motion

to suppress, we examine the court's factual findings for clear

error, while we consider any legal conclusions, including the

court's application of law to facts, de novo.             United States v.

Fermin, 771 F.3d 71, 76–77 (1st Cir. 2014). "To succeed on appeal,

[the defendant] must show that no reasonable view of the evidence

supports   the    district    court's    decision."      United   States   v.

Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008).

           The Fourth Amendment requires suppression not only of

evidence seized during an unlawful search, but also of evidence

"that is the product of the primary evidence, or that is otherwise


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acquired as an indirect result of the unlawful search."        Murray v.

United States, 487 U.S. 533, 536–37 (1988).          However, under the

"independent     source"   exception     to   the   Fourth   Amendment's

exclusionary rule, "evidence acquired by an untainted search which

is identical to . . . evidence unlawfully acquired" is admissible.

Id. at 538 (emphasis omitted). Accordingly, "[w]hether the initial

entry [into a home] was illegal or not is irrelevant to the

admissibility of the challenged evidence" where "there was an

independent source for the warrant under which that evidence was

seized."   Segura v. United States, 468 U.S. 796, 813–14 (1984)

(plurality opinion); see also Murray, 487 U.S. at 541–42.

           The    district    court      denied     Dent's   motion    on

independent-source grounds, concluding that there was no evidence

that either the warrant or the decision to seek the warrant was

tainted by what the officers saw during the initial entry.            The

court found that "the process [of applying for a warrant] had

already been initiated based upon the wiretap and the preceding

information" and "the drugs observed under the air mattress were

not . . . included in the affidavit [supporting the warrant

application], nor was anything else that was seen or observed in

the apartment during that initial protective sweep."




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             Dent's appeal does not dispute these findings, nor does

it contest the validity of the later-issued warrant.1                   Instead,

Dent pursues two quite different approaches.

             Dent's   primary    argument       is   that        the    officers'

warrantless entry, and actions subsequent to that entry, were so

egregious as to foreclose application of the independent-source

exception.     In support of his position, Dent points to United

States v. Madrid, 152 F.3d 1034 (8th Cir. 1998), in which the

Eighth Circuit vacated the denial of a motion to suppress on the

ground that the inevitable-discovery exception did not apply, id.

at 1041.2    That case involved officers who entered a house without

a warrant and, in the course of performing a "'security sweep,'"

id.   at   1036,   "went   upstairs    and    downstairs    on    two   or   three

occasions, detained and searched the occupants, seized wallets and

placed them in envelopes marked 'evidence,' and leafed through

personal mail and a notebook,"         id. at 1040.    Information gleaned

from this warrantless entry and sweep was then included in the


      1Citing Segura's admonition regarding the "irrelevan[ce]" of
the legality of the officers' entry, seizure, and sweep in deciding
the independent-source question, see 468 U.S. at 813–14, the
district court made no finding in that regard for the purposes of
the independent-source inquiry. Therefore, "we proceed under the
assumption that the officers' [actions] . . . w[ere] improper."
See United States v. Rose, 802 F.3d 114, 123 (1st Cir. 2015).
      2The inevitable-discovery exception is a "close relative" of
the independent-source exception.    See, e.g., United States v.
Siciliano, 578 F.3d 61, 68 n.4 (1st Cir. 2009) (citing Murray, 487
U.S. at 539).


                                      - 8 -
affidavit used to secure a warrant, pursuant to which the house

was formally searched.       Id. at 1036.

            Faced with these facts, the court in Madrid opted not to

rest its decision on whether, after "excising illegally obtained

information from the warrant application, . . . the warrant was

supported by probable cause [and] the decision to grant the warrant

was unaffected by the illegally obtained information."          Id. at

1040.    Instead, the court expressed but did not resolve doubts

about those questions, and proceeded to hold that the results of

the     warranted   search    could   not   be   admitted   under   the

inevitable-discovery exception due to "the severity of the police

misconduct."    Id. at 1041.

            Whether we would follow Madrid we need not decide today.

For one thing, the officers' effort to confirm what Banyan was

attempting to hide under the mattress falls short of the blatant

search through personal effects in Madrid.           Furthermore, the

established chronology of events in this case eliminates any

uncertainty about the provenance of the information that provided

probable cause to secure the warrant.        In short, neither of the

two factors present in Madrid that might justify a refusal to apply

the independent-source exception are present here.

            Dent's second argument is that the warranted search was

not truly independent of the warrantless entry and sweep because,

had the officers not earlier entered and seized the premises,


                                   - 9 -
Banyan (and the drugs that he had tried to hide under the air

mattress) would have been gone from the apartment by the time the

warrant was executed.3          As Dent points out, we have previously

recognized     that    "[t]he    Segura        court   did    not      consider    the

consequences    if     the    seizure     itself,      by    preventing     loss    or

destruction    of     the    property     by   freezing      it   in    situ,     might

contribute     to     the    discovery,    except      to    require     more      than

speculation that this was the fact."                United States v. Palumbo,

742 F.2d 656, 669 (1st Cir. 1984) (opinion for rehearing) (per

curiam).     Even assuming that we would entertain a suppression

argument based on our observation in Palumbo, Dent's argument would

fail because he has produced no evidence to show that Banyan and

the bag of drugs would have been absent from the apartment at the

time of the warranted search. Instead, he says only that we should

take at "face value both the exigency arguments made by the

government and the suppression testimony of [the] law enforcement

officers."     Yet the arguments and testimony to which Dent refers

are based on the "reasonable belief[s]" of police officers given

the information available to them at the time of the warrantless

entry.   See United States v. St. Pierre, 488 F.3d 76, 79 (1st Cir.

2007).     Thus, the government's claim of exigent circumstances



     3 We note that Dent makes no argument in this regard about
the other evidence seized from the apartment, including the 80.3
grams of cocaine base discovered in the bathroom ceiling.


                                     - 10 -
cannot, by itself, establish that Banyan and the bag of drugs would

have left the apartment were it not for the earlier entry and

seizure.      All    in   all,   we   do   not   agree    with    Dent    that   the

independent-source exception, as described in Segura and Murray,

is inapplicable to this case.

           We therefore agree with the district court that the

evidence seized from the apartment had a sufficiently independent

source to deny Dent's motion to suppress.                Because we affirm the

district court's ruling on independent-source grounds, we decline

to   decide   whether      the   government       established      that    exigent

circumstances justified the initial warrantless entry.

                                       III.

           For      the   foregoing    reasons,    we    affirm    the    district

court's denial of Dent's motion to suppress.




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