                United States Court of Appeals
                 FOR THE EIGHTH CIRCUIT



                       No. 97-1085



United States of America,     *
                              *
        Appellant,            *
                              *
        v.                    *
                              *
Larry Duane Conner,           *
                              *
         Appellee.            *
                              Appeal from the United
States
-----------------------------------------      District
Court for the
                              Northern District of Iowa

United States of America,     *
                              *
        Appellant,            *
                              *
        v.                    *
                              *
John Charles Tilton,          *
                              *
         Appellee.            *


               Submitted:     June 12, 1997

                          Filed:    October 8, 1997
Before MURPHY and          HEANEY, and NORRIS,1 Circuit Judges.


HEANEY, Circuit Judge.

    The   government   appeals   the   district  court’s
suppression of evidence obtained after police demanded
entry into a motel room rented by appellants. We affirm.

                                       I.

    On February 22, 1996, a federal grand jury in the
Northern District of Iowa returned separate two-count
indictments against Larry Duane Conner and John Charles
Tilton charging each with being a convicted felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), and with
possession of a stolen firearm, 18 U.S.C. § 922(j). Both
defendants moved to suppress evidence seized pursuant to
a search warrant authorizing the search of Room 31 at
the Elmdale Motel in Sioux City, Iowa. Conner also moved
to suppress evidence seized from his home pursuant to a
warrant. Conner and Tilton argued that the court should
suppress the evidence obtained pursuant to the warrants
because police used illegal methods to obtain the
information relied on to establish the probable cause to
issue the search warrant. After an evidentiary hearing,
the district court granted the motions to suppress. The
court agreed that essential information in the search
warrant affidavits was obtained in violation of the
Fourth Amendment. The court rejected the government’s
contention that the evidence was admissible under either

      1
       The Honorable William A. Norris, United States Circuit Judge for the United
States Court of Appeals for the Ninth Circuit, sitting by designation.
                                        2
the good-faith   exception   or   the   independent-source
exception.

    We find no clear error in the district court’s
detailed factual findings. See United States v. Murray,
34 F.3d 1405, 1409 (8th Cir. 1994) (standard of review)
(citations omitted).   Police in Sioux City, Iowa were
investigating a burglary that occurred in late




                             3
December 1995. The victim had given police a detailed
description of the stolen items, which included a large
coin collection, jewelry, silver place settings, and three
handguns.    Several days after the burglary, police
received an anonymous telephone call reporting that Larry
Conner and John Tilton had committed the burglary and that
they were staying at an unknown hotel or motel in Sioux
City. According to the caller, Conner and Tilton had the
coins with them and they were preparing to leave the city
later that day to dispose of the stolen property. They
reportedly had been driving a red Pontiac Fiero with Iowa
license plate WEH624.

    Based on the anonymous tip, police checked area motels
and hotels for the red Fiero. Because three handguns had
been taken in the burglary, the investigators believed
that Conner and Tilton might be armed. Two Sioux City
police detectives located the Fiero in front of Room 31 at
the Elmdale Motel and called for backup.      In all, six
police officers were on the scene; only one was in
uniform. Sergeant Young, the officer in charge, testified
that he planned to knock on the front door of the room and
attempt to speak to individuals inside about the burglary.
He incorrectly assumed that one of the other officers had
checked with the motel office to ascertain who had rented
Room 31. In fact, at the time the officers approached
Room 31, they did not know that Conner had rented the
room. The officers approached Room 31 solely because they
observed the red Fiero parked in front of it.

    Two officers, including Sergeant Young, went to the
door of Room 31; two others positioned themselves by the
room’s picture window; and two officers took up positions

                            4
behind the motel. One of the officers, who knew nothing
about the burglary except what he had been told when he
arrived at the motel, noticed packages of coins on the
windowsill between the room’s curtains and window.   He
attempted to draw the coins to the attention of the
officer in charge, but no other officer noticed the
gesture or the coins on the windowsill.




                           5
    An officer knocked on the door and identified himself
as a police officer. No one in the room responded. The
officer knocked again, and announced a second time that he
was a police officer. One of the officers stationed by
the window saw someone move aside the drawn curtains and
look out of the window.         In response, the police
repositioned themselves for better protection, and at
least one officer drew his pistol and held it behind his
back. The officer at the door knocked again and announced
the police presence. In addition, Sergeant Young shouted,
“Open up,” in a voice loud enough to be heard by a motel
resident two rooms away. The officers were loud enough to
awaken another guest and cause her to step out of her room
under the mistaken belief that the police were knocking at
her door.

    Shortly after the officers’ third attempt, Tilton
opened the door to the room.          The district court
explicitly found that Tilton opened the door in response
to Sergeant Young’s command. When Tilton opened the door,
officers observed what appeared to be foreign currency,
coins, and envelopes the size of currency on the bed and
blue, gold, and maroon boxes matching the victim’s
description scattered throughout the room. Believing that
the currency and other materials were related to the
burglary, Sergeant Young drew his weapon on Tilton,
ordered him to back away from the door, and placed him
under arrest.     Another officer found Conner in the
bathroom and arrested him as well.

    The officers stayed in the motel room to secure the
evidence but did not conduct a search of the room until
they obtained a warrant. The search warrant application

                            6
included the following information: “Officers knocked on
the [motel] door and identified themselves and Mr. Tilton
opened the door. At that time, in plain view were coin
rolls and coin sets throughout the room.”      The police
obtained a search warrant for the motel room and seized a
Smith & Wesson .38 caliber revolver, a Colt pistol, coins,
three large briefcases, and other items believed to have
been taken during the burglary. After searching the room,
police obtained a warrant for Conner’s residence in Sloan,
Iowa based on the same facts used to support the first
warrant and a list of the items




                            7
seized from the motel room. During the search of Conner’s
house, law enforcement officers seized items they believed
had also been taken during the burglary.

                           II.

    Based on these facts, we agree with the district court
that the officers’ entry into the motel room and arrest of
the occupants violated Conner’s and Tilton’s Fourth
Amendment rights. It is a well-established constitutional
principle that law enforcement officers may not enter a
person’s home without a warrant unless the entry is
justified by exigent circumstances or the consent of the
occupant. Steagald v. United States, 451 U.S. 204, 211
(1981); Payton v. New York, 445 U.S. 573, 586 (1980). In
Payton, the Supreme Court explained that no zone of
privacy is more clearly defined than a person’s home:
“[T]he Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a
warrant.” 445 U.S. at 590. The same protection against
unreasonable searches and seizures extends to a person’s
privacy in temporary dwelling places such as hotel or
motel rooms. Hoffa v. United States, 385 U.S. 293, 301
(1966); Stoner v. California, 376 U.S. 483, 490 (1964);
United States v. Rambo, 789 F.2d 1289, 1295 (8th Cir.
1986).

    The government contends that Payton does not apply
because the police did not “enter” the motel room; they
merely observed contraband in plain view when Tilton
opened the door. In other words, the government asserts
that Conner and Tilton voluntarily engaged with the police

                            8
at the motel. See United States v. Deanda, 73 F.3d 825,
825-26 (8th Cir. 1996) (person who opens door voluntarily
or in response to a simple knock by police knowingly
exposes to the public anything that can be seen through
the door thereby defeating any possible Fourth Amendment
arguments because it involves no “search.”); United States
v. Peters, 912 F.2d 208, 210 (8th Cir. 1991) (same). The
district court, however, correctly determined that an
unconstitutional search occurs when officers gain visual
or physical access to a motel room after an




                            9
occupant opens the door not voluntarily, but in response
to a demand under color of authority. See United States
v. Jerez, 108 F.3d 684, 692 (7th Cir. 1997); United States
v. Tovar-Rico, 61 F.3d 1529, 1535-36 (11th Cir. 1995);
United States v. Winsor, 846 F.2d 1569, 1572 (9th Cir.
1988) (en banc).     Further, we find no error in the
district court’s determination that, under the totality of
circumstances, Tilton did not voluntarily consent to the
officers’ entry into the motel room.2    Thus, the police
officers’ action constituted an unconstitutional intrusion
into that zone of privacy.3

      2
        In fact, the district court’s determination that the police entered Room 31 under
color of authority is well supported by the record. Four police officers were positioned
at or near the door. They knocked on the door longer and more vigorously than would
an ordinary member of the public. The knocking was loud enough to awaken a guest
in a nearby room and to cause another to open her door. Several minutes passed before
Conner or Tilton responded to the knocks. Before Tilton opened the door, he looked
out the window to assess the forces outside. Only after two of the officers had
identified themselves as police and demanded him to “open up” did he concede to that
demand.
      3
        Our analysis of the entry of the motel room under Payton necessarily rejects the
government’s argument that we should assess the police officers’ command to open the
door under a reasonableness standard. See Terry v. Ohio, 392 U.S. 1 (1968). The
government asserts that the demand was part of a brief, investigatory questioning
consistent with the Fourth Amendment and that the occupants of the room “control” the
situation--they decide how far to open the door and what objects to leave in plain view
during the questioning. This argument is as detached from real life as it is from
established constitutional principles. Despite the four police officers outside the room
and the two other officers in the general area, Conner and Tilton attempted without
success to “control the nature of the encounter” by refusing to answer the door. Also,
once inside the room, the officers would be entitled to make a sweep of the motel room
to ensure their safety during questioning. Thus, it is disingenuous to assert that the
defendants could have limited the officers’ exposure to the room by opening the door
just a crack. Finally, if the police could demand entry into a person’s home or hotel
                                           10
    As an alternative basis for reversal, the government
argues that either the good-faith or the inevitable-
discovery exception to the exclusionary rule renders the
evidence admissible despite the Fourth Amendment violation
in gaining access to the motel room.       The government
contends that the evidence obtained in the searches of the
motel room and Conner’s home should be admissible even if
we find the warrant invalid because law enforcement
officers reasonably relied on warrants issued by a neutral
magistrate.   See United States v. Leon, 468 U.S. 897, 922
(1984).   The rule in Leon is based on the theory that
where there has been no police illegality, there is no
conduct the courts need to deter and therefore no basis to
enforce the exclusionary rule.      As the Supreme Court
stated:   “Penalizing the officer for the magistrate’s
error, rather than his own, cannot logically contribute to
the deterrence of Fourth Amendment violations.” Leon, 468
U.S. at 921. The ultimate question under Leon is whether
the officers “had an objectively reasonable basis to
believe they were complying with [applicable law] and the
Fourth Amendment.” United States v. Moore, 956 F.2d 843,
848 (8th Cir. 1992).     In the context of investigatory
stops, we have stated that suppression is unwarranted
where pre-warrant police conduct was “close enough to the
line of validity to make the officers’ belief in the
validity of the warrant objectively reasonable.” United
States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989);
United States v. Fletcher, 91 F.3d 48, 51 (8th Cir. 1996).
If, on the other hand, the officers’ pre-warrant conduct


room to investigate suspected criminal activity in situations where they lack a warrant
or even probable cause to search or arrest, the Fourth Amendment rule would be
swallowed by the Terry exception.
                                          11
is “clearly illegal,” the good-faith exception does not
apply. United States v. O’Neal, 17 F.3d 239, 242-43 n.6
(8th Cir. 1994).

    The district court concluded that the government could
not invoke Leon in this case because “[n]o officer could
in good faith believe, under the facts as they existed at
the time, that the defendants consented to the officers’
visual or physical access to the motel room.”       United
States v. Conner, 948 F. Supp. 821, 853 (N.D. Iowa 1996).
Nor could the police reasonably believe that exigent
circumstances justified the intrusion on Conner and
Tilton’s reasonable expectation of privacy. Id. at 854.
Sergeant Young stated that he planned only to talk to the
occupants of Room 31 and that he lacked probable cause to
arrest prior to viewing the contents of the room. In




                            12
fact, none of the officers involved even knew to whom the
room was rented. We agree with the district court that
the exception in Leon does not salvage the warrantless
entry by police.

    Finally, for the first time on appeal, the government
advances the argument that even if the police had not
commanded the defendants to open the door to the motel
room, they inevitably would have discovered the evidence
through independent search warrants. See Nix v. Williams,
467 U.S. 431, 433 (1984). Although we need not address an
issue that was not raised below, see United States v.
Johnson, 64 F.3d 1120, 1126 (8th Cir. 1995); United States
v. Chalmers, 800 F.2d 737, 738 (8th Cir. 1986), the
district court made factual findings that dispose of this
claim and those factual findings are not clearly
erroneous.    To succeed under the inevitable-discovery
exception to the exclusionary rule, the government must
prove by a preponderance of the evidence: (1) that there
was a reasonable probability that the evidence would have
been discovered by lawful means in the absence of police
misconduct, and (2) that the government was actively
pursuing a substantial, alternative line of investigation
at the time of the constitutional violation.        United
States v. Wilson, 36 F.3d 1298, 1304 (5th Cir. 1994). The
district court concluded that there was no independent
basis for admission of the evidence. Specifically, the
court found that the officers would not have sought either
search warrant but for their observation of what they
believed to be the proceeds of the Uhlir burglary
following their illegal entry into the motel room.
Conner, 948 F. Supp. at 859. Given that finding and the
fact that the government offers no concrete evidence that

                            13
police explored any alternative investigatory approach, we
find no basis to apply the inevitable-discovery exception
to this case.

                          III.

    Police officers entered appellees’ motel room in
violation of the Fourth Amendment. The evidence obtained
following that entry, including that which police seized
pursuant to search warrants, was tainted by the illegal
entry and the evidence




                            14
was properly excluded over the government’s assertions of
good faith and inevitable discovery. Therefore, we affirm
the district court’s suppression order.

MURPHY, Circuit Judge, dissenting.

    Since I believe that the police were justified in the
investigation they undertook and that their conduct did
not violate the fourth amendment, I respectfully dissent.

    On December 25, 1995, the Sioux City police received
a report of a burglary at the Uhlir residence. Among the
stolen items were a coin collection worth approximately
$100,000, a Chrysler LeBaron convertible, and three
handguns.     The officers investigating the burglary
received a tip from an anonymous source on the morning of
January 2. The tip indicated that Larry Conner and John
Tilton had been seen with the stolen coins in a red 1986
Pontiac Fiero with Iowa license plate WEH624. The source
further stated that the two suspects were staying in a
Sioux City motel but were planning to leave town that same
day to dispose of the stolen property.

    Police were dispatched to locate the Pontiac Fiero
with a warning that the suspects might be armed because
weapons and ammunition were taken in the burglary. Two
officers found the car at the Elmdale Motel. Access to
the motel rooms was directly from the parking lot, and the
police observed a number of cars parked in front of rooms,
including the red Fiero parked outside of room 31.

    When Sergeant Young, the officer in charge of the
investigation, arrived on the scene, he and officer Hein,

                            15
who was in uniform, approached the door of room 31 in the
hope of talking with the occupants. Young was already
familiar with Larry Conner and knew he had prior offenses
involving drugs and burglaries. Detectives Iddings and
Polak positioned themselves next to the room's picture
window at one side of the door.       After knocking and
identifying themselves at least twice, the officers
observed someone inside the room peer out the window, but
no one came to the door. Detective Iddings




                           16
also saw on the inside windowsill some coins packaged in
clear protective covers which he recognized from a
briefing describing the Uhlir burglary. He pointed at the
coins in the hope of attracting Sergeant Young's notice,
but Young was repositioning himself next to the door
outside the line of fire. Hein knocked again more loudly
and Young called out, "Open up."

    At this point John Tilton opened the door, and he
opened it wide enough so that Young could see the items
taken in the burglary in plain view. Tilton and Conner
were placed under arrest and given Miranda warnings.
Young directed two of the officers to secure the room, but
not to search further or touch anything. He and another
officer left to get search warrants for the room and for
Conner's residence, and evidence was later gathered
pursuant to those warrants.

    We review the district court's ultimate conclusion on
probable cause and exigent circumstances de novo.      See
United States v. Ball, 90 F.3d 260, 262 (8th Cir. 1996)
(citing Ornelas v. United States, --- U.S. ---, 116 S.Ct.
1657, 1663 (1996)). Before the officers approached the
motel room door, they had already located the vehicle with
the exact make, model, color, and license plate described
in the tip, and the car was parked at a local motel as the
tip had indicated it would be.      Even though they had
knocked and identified themselves as police, no one had
answered the door, and Iddings had observed coins through
the window which appeared to be those taken from the Uhlir




                            17
home.4 At this point the officers had probable cause to
believe that the burglars and the stolen property were
inside of room 31.

    There also was reason to believe there was a risk of
flight or of danger to others in the vicinity.         The
officers knew that the proceeds of the burglary included
three handguns and ammunition, and they had reason to
suspect the burglars would be armed. The only element of
the tip not yet corroborated at the time the police asked
that the door be opened was the information that the
suspects intended to leave town that day to dispose of the
goods.    Since the rest of the tip had proven to be
reliable, there was reason to suspect that attempted
flight was imminent.      In such exigent circumstances
immediate police action is justified without the delay
required to obtain a warrant. See Ball, 90 F.3d at 263.



    For these reasons the police were justified in
ordering the occupants to open the door and their conduct
did not violate the fourth amendment.       They went no
further without first obtaining a warrant, and it was the
occupants who opened the door wide enough to permit the



      4
        The collective knowledge of all officers involved in an investigation is relevant
to determining whether there was probable cause to make an arrest or search. See
United States v. Horne, 4 F.3d 579, 585-86 (8th Cir. 1993), cert. denied, 510 U.S.
1138 (1994); United States v. Morgan, 997 F.2d 433, 435-36 (8th Cir. 1993). In this
case the officers had all been briefed on the circumstances of the burglary and the
anonymous tip, and they were working right next to each other at the scene, responding
to rapidly unfolding events. See United States v. Shareef, 100 F.3d 1491, 1504 (10th
Cir. 1996); Collins v. Nagle, 892 F.2d 489, 495 (6th Cir. 1989).
                                           18
burglarized property to be seen.   The order suppressing
the evidence should be reversed.




                          19
A true copy.

    Attest.

        CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                       20
