March 25, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2010

                        UNITED STATES,

                          Appellee,

                              v.

                       ALEXANDER LOPEZ,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Ronald R. Lagueux, U.S. District Judge]
                                                    

                                         

                            Before

                   Torruella, Circuit Judge,
                                           
                Coffin, Senior Circuit Judge,
                                            
                  and Boudin, Circuit Judge.
                                           

                                         

William T. Murphy was on brief for appellant.
                 
Zechariah  Chafee, Assistant  United  States  Attorney, with  whom
                 
Lincoln C. Almond, United States Attorney, was on brief for appellee.
             

                                         

                        March 25, 1993
                                         

     BOUDIN, Circuit Judge.  In the district court, Alexander
                          

Lopez  was convicted  of  possessing cocaine  with intent  to

distribute and  with conspiracy  to commit the  same offense.

21  U.S.C.     841(a)(1), 846.   The  jury deadlocked  on two

other counts, later dismissed, charging Lopez with possessing

a  short barrel shotgun and with its use in drug dealing.  26

U.S.C.   5861(d);  18 U.S.C.    924(c)(1).   On this  appeal,

Lopez contests only the  district court's refusal to suppress

evidence obtained at the time of his arrest.  We affirm.

     The pertinent facts, developed mainly at the suppression

hearing, can be briefly stated.  Early on the morning of June

22,  1991, Charles Perry, a long-time cocaine user, went to a

building in  Providence, Rhode  Island, to  purchase cocaine.

The building was a decrepit  three-story tenement and, on the

second floor, there was a kitchen, an adjoining bathroom, and

three adjoining bedrooms available for rent on a weekly basis

to  tenants,  who  were  expected to  share  the  kitchen and

bathroom.  On the morning of June 22, one bedroom, previously

used  by  prostitutes,  was  empty;  one was  occupied  by  a

respectable tenant away at work;  and the last was used by  a

cocaine dealer named Blackie for whom Lopez worked.

     Arriving at  the second floor by the  back stairs, Perry

found the door to the kitchen open and entered  to find Lopez

and another  man.  Perry bought  a small bag  of cocaine from

Lopez and left to  inject the cocaine.  Several  hours later,

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Perry returned.  Finding the second floor door now closed, he

negotiated  a  sale  from  the  outside,  took  his  purchase

downstairs  and  found  that   he  had  bought  baking  soda.

Returning to the  second floor,  he pounded on  the door  and

yelled   until  admitted.     There   he  found   Lopez,  the

unidentified  man present  on his  first visit,  and Blackie.

When Perry began to yell, Blackie leveled a sawed-off double-

barrel shotgun at Perry and told him to leave.

     Retreating to the yard outside, Perry continued to yell.

Blackie left, threatening Perry as he did so.  Perry then had

someone call  the  police  to  report  that  Perry  had  been

threatened with a sawed-off shotgun.   Lopez emerged and gave

Perry  a packet  of cocaine.   Police  cars, responding  to a

radio  alert, began  to arrive.   Pointing  to the  building,

Perry then described to several officers a male wearing green

camouflage trousers and no shirt.  Officer Tombs, who arrived

separately, heard  the description and saw  Lopez standing in

the  yard behind  the building,  without a shirt  and wearing

green camouflage pants, apparently holding an object.

          Tombs, clad  in uniform,  called on Lopez  to halt.

Instead, Lopez dashed into the building and ran to the second

floor.   Tombs pursued, broke through  two intervening doors,

and  arrested  Lopez  in  the   little  bedroom.    As  Tombs

handcuffed  Lopez, a radio fell over, and six tiny baggies of

cocaine were disclosed.   Other officers  appeared, including

                             -3-

Officer  Vanderhorst, and  a search  for the  shotgun ensued.

Vanderhorst,  entering  the  bathroom,  saw  a  ceiling  tile

missing.   He stood on the  toilet, peered in, and  saw a big

bag,  which proved  to have smaller  bags of  cocaine inside.

Then,  looking in again,  he saw a  gun butt.   As he climbed

down,  possibly using  a  ceiling panel  as a  hand-hold, the

ceiling collapsed  and spilled  a sawed-off shotgun  onto the

floor.  From handcuffing  to discovery of the gun, only a few

minutes passed.

     After a  suppression hearing before  trial, the district

court refused to suppress the shotgun or the cocaine found in

the  bedroom  and the  bathroom.   The  court found  that the

arrest leading to the discovery of cocaine in the bedroom was

based upon probable cause  and that Lopez had no  standing to

object  to  the search  of  the bathroom.    On the  issue of

standing, the court  found that the bathroom was available to

anyone on the premises, had  no outside lock, and  engendered

no expectation  of privacy.   The  cocaine  and shotgun  were

offered as evidence  at trial.   Lopez was  convicted on  the

cocaine counts.

     On this appeal, Lopez argues  that as an authorized user

of the apartment, he  had standing to object to  the bathroom

search under  United States  v. Irizarry,  673 F.2d  554 (1st
                                        

Cir. 1982).   In turn,  the government  defends the  district

court's suppression  ruling  primarily  by  arguing  lack  of

                             -4-

standing, citing United States v. Thornley, 707 F.2d 622 (1st
                                          

Cir. 1983).   As a second  string to its  bow, the government

argues that  exigent circumstances justified  the search  for

the  shotgun  without  awaiting  a  warrant.    We  think the

standing  issue  a close  call and  prefer  to affirm  on the

merits of the Fourth Amendment claim.

     It is  common ground  that the Fourth  Amendment forbids

only  unreasonable  searches and  seizures;  that  normally a

search is unreasonable absent  a warrant issued by a  neutral

magistrate  upon  a showing  of probable  cause; and  that to

excuse  the lack  of a  warrant,  the police  must ordinarily

bring the case within one or  more of a list of exceptions to

the  warrant  requirement.   See  generally  Coolidge v.  New
                                                             

Hampshire,  403  U.S.  443, 477-78  (1971).    A  few of  the
         

exceptions are  huge, such as  arrest for  felony and  search

incident  to  arrest,  which  embrace Lopez'  arrest  in  the

bedroom--assuming probable  cause to pursue him  in the first

place.   Most  of the  exceptions, however, are  narrower and

more complex.  

     The exception with  which we are concerned in  this case

excuses the  lack of a warrant  where "exigent circumstances"

exist,   requiring  speed   and  making   delay  improvident.

Although   the  most  frequent   example  is  the  threatened

destruction of evidence, e.g., Cupp v. Murphy, 412  U.S. 291,
                                             

294-96  (1973),  a   solid  line  of  cases    finds  exigent

                             -5-

circumstances where the safety of law enforcement officers or

the  general public is  threatened.  E.g.,  Warden v. Hayden,
                                                            

387 U.S.  294, 298-99 (1967); Criminal  Procedure Project, 80
                                                         

Geo. L.J. 939, 987 (1992) (collecting numerous cases).   This

circuit has so  held.   E.g., United States  v. Rengifo,  858
                                                       

F.2d  800, 805 (1st Cir.  1988), cert. denied,  490 U.S. 1023
                                             

(1989).

     The  question here, then,  is whether  the police  had a

reasonable basis to believe  that a threat to safety  existed

of an urgency and magnitude that  would justify a warrantless

search  of the kind that  occurred.  In  truth, two different

issues  are  embraced in  this formula.    One is  the police

perception  of danger,  judged by what  the officers  saw and

knew at the time.   The other, a legal issue for  the courts,

is whether  under the  Fourth Amendment the  perceived threat

justified their behavior.   In this  case, what the  officers

saw and knew is largely apparent from the record.  By a close

margin, we think their perception justified their conduct.

     The most important element is that the police had reason

to believe that  Lopez had a sawed-off shotgun  nearby, which

had  been used only shortly  before to threaten  Perry.  That

Blackie had  done the threatening, not  Lopez, was apparently

unknown to the  officers; if  they had known,  it could  only

have  increased  their concern  since  Blackie  was still  at

large.  Thus, the  police had ample basis for  believing that

                             -6-

an extremely dangerous  weapon was lodged  close at hand  and

should be recovered as promptly as possible.

     It  is  hard  to  think  that  Lopez  himself  posed  an

immediate danger.   Although one in  custody may yet  present

risks, it  appears that Lopez  was handcuffed in  the bedroom

and  that other officers were there  when the bathroom search

occurred.   Still, the police had no assurance that Lopez was

acting alone (in fact, he was not), or that the apartment was

secure  (there  were actually  two  entrances  on the  second

floor).  Officer  Tombs thought that  others might have  been

with Lopez in  the second  floor apartment.1   The nature  of

the  building--a  dilapidated,  multi-tenant  structure--lent

further weight to a reasonable concern that the shotgun might

be hidden nearby, recovered by others, and used again.

     The nature of the search is also important.  This is not

because  Lopez lacked "standing" as  to the bathroom area (we

assume arguendo that he had standing), but because the degree
               

of  intrusion has  a  bearing on  the  reasonableness of  the

police action.   It is one  thing to break into  and search a

family home, another to frisk an arrested suspect, another to

search a car, and  yet another to make a  protective sweep of

                    

     1Tombs testified at the suppression hearing that when he
reached  the  second floor  in  pursuit  of Lopez,  he  heard
within:    "Footsteps, fast  moving  footsteps.   I  couldn't
determine how many people, how many, you know,  subjects were
in  the house.   But  there was  footsteps running  about the
house, inside the door."

                             -7-

an already entered  building to uncover  other suspects.   In

each  such  case,  the  extent  of  the  intrusion,  and  the

proportionality   of    response   to   need,    inform   the

constitutional judgment.

     Here, the  intrusion, although not minimal, was limited:

the  officer saw the opening in  the bathroom ceiling through

an  open door, entered the empty room, and with little effort

saw the  butt of the weapon.   There was no new  entry into a

private residence;  the police were lawfully in the kitchen. 

And  the  search  can be  justified  as  one  not merely  for

evidence or even contraband  but for a dangerous weapon  in a

building where others might gain access to it.  If the weapon

were not  swiftly recovered, a search for  others outside the

building might  be needed.   Thus,  this was  a proportionate

search, limited  in its range,  specific in  its object,  and

justified by exigent circumstances.

     There is considerable case law on exigent  circumstances

but, as one might expect in this area, the cases are  heavily

dependant on the  facts.   The closest case  in this  circuit

appears to be  Irizarry, upholding a warrantless search  of a
                       

hotel  room to the extent  needed to assure  that a suspected

armed "fourth person"  did not  remain within.   673 F.2d  at

558.   Irizarry, in  which the  fourth person  was reasonably
               

believed to be  hiding in the room, is a  stronger case for a

warrantless  search, but  other circuits  on facts  closer in

                             -8-

strength to our  own have  found them strong  enough.   E.g.,
                                                           

United  States v. Queen, 847  F.2d 346, 353  (7th Cir. 1988);
                       

United States  v. McKinney,  477 F.2d  1184, 1186  (D.C. Cir.
                          

1973).2   We agree, cautioning  that our own  facts may press

close to the outer limit of the Fourth Amendment.

     Lopez'  other  challenge is  to  the  lawfulness of  the

original  pursuit,  and  this  claim  can  be  answered  more

swiftly.   If the original entry was unlawful, the seizure of

the cocaine in the  bedroom might be suppressed as  the fruit

of  the  poisonous tree,  see  generally Wong  Sun  v. United
                                                             

States, 371 U.S. 471, 484 (1963), and the ban might extend as
      

well (we need not decide the point) to the  evidence found in

the  bathroom  and  a  volunteered statement  at  the  police

station.  Lopez  says that the original  pursuit was unlawful

because the attempted, and ultimately  successful, seizure of

Lopez was not  based on probable cause to believe that he had

committed a crime.

     On the  contrary, the police  had a reasonable  basis to

believe  that Lopez was the man who  had leveled a shotgun at

Perry, even though in the  event it turned out to be  Blackie

who  had  held  the  weapon.     Office  Tombs,  arriving  to

investigate the crime, heard Perry describe an Hispanic male,

                    

     2McKinney,   peculiarly   on   point,    sustained   the
              
warrantless search  of a  hotel room--while the  occupant was
out--after  a bellman  observed  a sawed-off  shotgun on  the
table.

                             -9-

shirtless and in camouflage pants, and saw a man fitting this

description  standing near  the building  to which  Perry had

pointed.   When  Tombs in  uniform called  on Lopez  to halt,

Lopez instead  fled.   These  circumstances including  flight

gave  Tombs reason  to believe  that Lopez  was the  culprit,

United  States v.  Vasquez,  534 F.2d  1142, 145  (5th Cir.),
                          

cert. denied, 429  U.S. 979  (1976), and the  belief in  turn
            

justified  entry  under  the  "hot   pursuit"  doctrine,  see
                                                             

generally  United  States  v.  Santana, 427  U.S.  38,  42-43
                                      

(1976), and ultimately arrest.

     In sum, the shotgun and cocaine evidence was permissibly

seized  and  introduced  at  trial,  and  the  conviction  is

therefore valid.   Accordingly, the judgment  of the district

court is affirmed.
                 

                             -10-
