                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                           July 10, 2013

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.
                                                      Nos. 12-7073 & 12-7075
                                                (D.C. Nos. (6:12-CR-00033-JHP-1-2)
 MARK ALDEN MONGOLD and
                                                            (E.D. Okla.)
 CLAUDIA MARIE MOORE,

        Defendants - Appellants.


                                ORDER AND JUDGMENT*


Before HARTZ, MCKAY, and MATHESON, Circuit Judges.


                                   I. INTRODUCTION

      Mark Mongold and Claudia Moore (“Defendants”) were charged as felons in

possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1). The charges arose

from evidence the police found during a March 6, 2012 search of Ms. Moore’s home.

Each Defendant filed a motion to suppress the evidence from the search. After a hearing,

the magistrate judge issued a report and recommendation (“R&R”) that the motions to


       * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
suppress be denied. The district court relied on the magistrate judge’s R&R and denied

the motions. The Defendants conditionally pled guilty. They appeal their convictions,

alleging that the district court erred in denying their motions to suppress. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and remand this case to the district

court for further review.

                                   II. BACKGROUND

       The facts recited here reflect the findings of the district court, which adopted

findings made by the magistrate judge. We accept the district court’s findings of fact

related to a motion to suppress unless they are clearly erroneous. United States v.

Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998). Findings of fact are clearly

erroneous only if they are “without factual support in the record or if,” after reviewing the

record, we have a “firm conviction that a mistake has been made.” Manning v. United

States, 146 F.3d 808, 812 (10th Cir. 1998) (quotations omitted). The magistrate judge

found the Government’s account more credible than the Defendants’. That determination

was not clearly erroneous. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574

(1985) (“Where there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.”). Because we are reviewing the district

court’s denial of a motion to suppress, we recite the facts “in the light most favorable to

the [G]overnment.” United States v. Polly, 630 F.3d 991, 996 (10th Cir.

2011) (quotations omitted).


                                             -2-
                                        A. Facts

       In 2010, Special Agent Ashley Stephens of the Bureau of Alcohol, Tobacco, and

Firearms (“ATF”) visited Ms. Moore’s residence while investigating a large drug

conspiracy and found a federal fugitive hiding there. Ms. Moore admitted to selling

drugs within that conspiracy. She was not charged or convicted as part of that

conspiracy, but Agent Stephens learned that Ms. Moore was a convicted felon.

       In early 2012, Agent Stephens received anonymous calls from two of Ms. Moore’s

neighbors complaining about the high volume of traffic entering and leaving her

property. After receiving these calls, Agent Stephens and other officers conducted

surveillance of traffic at Ms. Moore’s home. They noticed four different vehicles parked

in her driveway on one occasion and three cars entering and leaving during a 40-minute

period around noon on another day. The officers did not attempt to ascertain who owned

the cars. This was the only suspicious activity the officers observed at the home.

       Around a week later, on March 6, 2012, Agent Stephens and three other officers

conducted a “knock and talk” at Ms. Moore’s home. At the Defendants’ detention

hearing, Agent Stephens testified that he “arrived at the front door and knocked on the

door. You could hear scurrying and shuffling within the residence, which immediately

caused us concern. The door was then opened by an individual later identified as Mark

Mongold.” ROA, Vol. II (12-7075), at 14. He added, “Prior to opening the door, the

male from inside asked who it was and we said it was the police.” Id. At the suppression

hearing, Agent Stephens testified that, after they knocked a male voice asked who was
                                            -3-
there and they responded, “The police.” ROA, Vol. II (12-7075), at 79. Then “there was

scurrying” or “loud movements” inside and “a short delay” before the door was opened.

Id. at 79, 92. The sounds did not include toilets flushing or people’s voices.1

       After the delay, Mr. Mongold, who had been living in the home for several

months, opened the door. Agent Stephens smelled marijuana and recognized what he

believed were prison tattoos on Mr. Mongold. Agent Stephens asked for Ms. Moore.

Mr. Mongold told him that he would go get her and turned to walk to the back of the

house to find her. The officers followed him inside even though they did not have

permission to enter the house. Once inside, Agent Stephens saw ammunition in a

bedroom. He knew that Ms. Moore was a felon and that it was illegal for her to have

firearms or ammunition. Agent Stephens also believed Mr. Mongold was a felon, based

on his tattoos.

       Agent Stephens directed the home’s four residents—Ms. Moore, Mr. Mongold,

and Ms. Moore’s two adult children—onto the front porch. Agent Stephens told them

that he had smelled marijuana and had seen ammunition in the home. He then informed

them of their Miranda rights and asked them each to sign a form consenting to a search

       1
        Defendants argue that the delay, which Mr. Mongold testified was “[m]aybe two
minutes,” ROA (12-7073), Vol. II at 156, was caused by Ms. Moore’s adult son, Robert
Maes, going to tell Mr. Mongold that the police were at the door and Mr. Mongold
proceeding to the door from the back of the house. Mr. Mongold also testified that he
was the one who asked who was at the door, prompting the police to announce their
presence, immediately before the door was opened. We accept the district court’s
determination that Agent Stephens’s testimony was more credible than the Defendants’
and view all evidence in the light most favorable to the Government.

                                            -4-
of the home. All four occupants consented. After receiving the occupants’ consent to

search, officers re-entered the home and found a small amount of marijuana, drug

paraphernalia, bags containing white powder, ammunition, a shotgun, and a revolver.

                                  B. Suppression Hearing

       The Government charged Mr. Mongold and Ms. Moore as felons in possession of

firearms and ammunition under 18 U.S.C. § 922(g)(1). The Defendants filed motions to

suppress the evidence from the entry as unlawful. They argued that the police had no

legal justification to enter the home.

       A magistrate judge conducted the suppression hearing on May 14, 2012. At the

hearing, Agent Stephens testified that he did not have enough probable cause for a

warrant at the time of the knock and talk. But he explained that he entered the home out

of concern that the “scurrying and shuffling” sounds he heard might indicate the

destruction of evidence and that he or the other officers might be in danger.

       Mr. Mongold’s and Agent Stephens’s testimonies differed on a few important

points. First, Agent Stephens admitted that he did not have permission to enter. Mr.

Mongold went even further, testifying that he told the officers they could not enter and

tried to shut the door before he looked for Ms. Moore. He testified that Agent Stephens

blocked the door with his foot and “bulldogged” his way past Ms. Moore’s adult daughter

to get into the home. Second, Mr. Mongold testified that, after the officers entered the

home, some of them repeatedly drew and pointed firearms at him, but he did not know

which ones. Agent Stephens testified that he never drew his firearm and was not aware
                                            -5-
that any of the other officers did. Third, Mr. Mongold contended that he was handcuffed

before being taken to the porch and did not believe he was free to leave. Agent Stephens

said that they handcuffed the Defendants only after telling them they were under arrest.

       The magistrate judge determined that the officers had “reasonable suspicion of

criminal activity at the time of the ‘knock and talk’” based on the traffic at the home,

prior criminal activity there, and Ms. Moore’s prior criminal acts. ROA (12-7073), Vol. I

at 40. The magistrate judge also concluded that the scurrying sounds, the smell of

marijuana, and the presence of known or suspected felons justified the officers’ entry “to

secure evidence and for their own safety.” Id.

       The magistrate judge also determined that the Government had shown by a

preponderance of the evidence that the consent of all four residents was voluntary and not

obtained through duress or coercion: the Defendants gave their consent on an open

porch, there was no threat of physical violence, the officers gave Miranda warnings, and

Agent Stephens carefully explained the consent form to the occupants before they signed.

       The magistrate judge recommended that the district court deny the Defendants’

motions to suppress. The Defendants objected to the magistrate judge’s R&R. After

review, the district court adopted the magistrate judge’s R&R, denying the Defendants’

motions to suppress the evidence from the search.

                         C. Conviction, Sentencing, and Appeal

       The Defendants entered conditional guilty pleas, preserving the ability to appeal

the court’s denial of their motions to suppress. The district court sentenced Mr. Mongold
                                             -6-
to 57 months of imprisonment and Ms. Moore to 33 months. The Defendants filed timely

appeals.

                                   III. DISCUSSION

      The Fourth Amendment generally requires a warrant for searches and seizures

within a home; otherwise, the search or seizure is presumptively unreasonable. Brigham

City v. Stuart, 547 U.S. 398, 403 (2006); Lundstrom v. Romero, 616 F.3d 1108, 1128

(10th Cir. 2010). Unless an exception to the warrant requirement exists, warrantless

entries are “unconstitutional even when a felony has been committed and there is

probable cause to believe that incriminating evidence will be found within” the home.

Payton v. New York, 445 U.S. 573, 588 (1980); see also Manzanares v. Higdon, 575 F.3d

1135, 1142 (10th Cir. 2009). The officers in this case did not have a warrant to enter Ms.

Moore’s home. The district court should have suppressed the evidence obtained from

their entry unless the exceptions for (A) exigent circumstances or (B) consent applied.

                               A. Exigent Circumstances

      The presumption of unconstitutionality for warrantless searches may be overcome

by “reasonable exceptions,” such as when “the exigencies of the situation make the needs

of law enforcement so compelling that [a] warrantless search is objectively reasonable

under the Fourth Amendment.” Kentucky v. King, 131 S. Ct. 1849, 1856 (2011)

(quotations omitted); see also United States v. Martinez, 643 F.3d 1292, 1296 (10th Cir.

2011). These exigencies can include entering a home to aid an injured individual in an

emergency, to protect an occupant from imminent injury, to catch a fleeing suspect in
                                            -7-
“hot pursuit,” and to prevent the destruction of evidence. King, 131 S. Ct. at 1856. The

Government bears the heavy burden of proving that a warrantless entry was lawful based

on exigent circumstances. United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006).

       “The existence of exigent circumstances is a mixed question of law and fact.”

United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998) (quotations omitted).

“Although we accept underlying fact findings unless they are clearly erroneous, the

determination of whether those facts satisfy the legal test of exigency is subject to de

novo review.” Id. (quotations omitted).

       In a one-page order, the district court adopted the magistrate judge’s R&R as

“well-reasoned and based upon applicable law.” ROA, Vol. I (12-7075) at 58. The R&R

accepted Agent Stephens’s account of the underlying facts as “more credible” than the

Defendants’. With little analysis, the R&R determined that the “officers were justified in

entering the residence to secure evidence and for their own safety.” The R&R concluded

that warrantless entry was necessary either (1) to prevent the destruction of evidence of a

“serious crime” or (2) to protect officer safety, but it did not explain how the evidence

established these exigent circumstances. We therefore apply the tests for these two kinds

of exigent circumstances to the district court’s factual findings to determine whether the

warrantless entry was justified.

1. Destruction of evidence

       We employ a four-part test to determine whether the likelihood of destruction of

evidence justified the officers’ warrantless entry. The test requires that an officer’s entry
                                             -8-
be “(1) pursuant to clear evidence of probable cause, (2) available only for serious crimes

and in circumstances where the destruction of the evidence is likely, (3) limited in scope

to the minimum intrusion necessary to prevent the destruction of evidence, and (4)

supported by clearly defined indicators of exigency that are not subject to police

manipulation or abuse.” United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir. 1988).

       Officers must meet all four elements of the Aquino test before the destruction of

evidence exception to the warrant requirement applies. The Government meets the first

element here because, at the very least, the smell of the drugs established clear evidence

of probable cause for possession of marijuana. See, e.g., United States v. Garcia-

Zambrano, 530 F.3d 1249, 1260 (10th Cir. 2008) (determining that the smell of

marijuana can establish probable cause of drug possession).

       The second element includes two components: (a) the exception is only available

for serious crimes; and (b) destruction of evidence must be likely. The Government

failed to meet the first component and therefore the second element of the Aquino test.

       “Serious crime” is not well-defined. In Illinois v. McArthur, 531 U.S. 326, 336

(2001), and Welsh v. Wisconsin, 466 U.S. 740, 753 (1984), the Supreme Court explained

that penalties are the best indication of whether a crime is “serious,” but it never set a

threshold for what penalty qualifies to make a crime “serious.” We begin by addressing

whether marijuana possession is a serious crime because, at minimum, the officers had

probable cause for possession of marijuana.


                                              -9-
       In McArthur, the Court determined that the possession of marijuana justified

temporarily barring the defendant from his home. 531 U.S. at 336. Because a home

search is a greater intrusion than briefly preventing entry to a home, the Court declined to

address whether possession of marijuana justified a warrantless home search. Id.

(“Temporarily keeping a person from entering his home, a consequence whenever police

stop a person on the street, is considerably less intrusive than police entry into the home

itself in order to make a warrantless arrest or conduct a search.”).

       In United States v. Carter, 360 F.3d 1235 (10th Cir. 2004), we determined that

“possession of a small quantity of marijuana [was] in all likelihood a misdemeanor” and

did “not reach the level of ‘serious crime’ required by Aquino.” Id. at 1242. Here,

Oklahoma considers marijuana possession a misdemeanor that is not punishable by more

than one year in prison. Okla. Stat. tit. 63, § 2-402.

       Based on the foregoing, if marijuana possession is the only crime for which the

officers in this case had probable cause, the exigency exception for destruction of

evidence should not apply because marijuana possession is not a serious crime. We

therefore need to address whether the officers had probable cause for a more serious

crime—drug trafficking.

       In determining whether probable cause for a crime existed, we do not view the

evidence “in isolation” but “as . . . factor[s] in the totality of the circumstances.”

Maryland v. Pringle, 540 U.S. 366, 372 n. 2 (2003); see also United States v. Valenzuela,


                                              -10-
365 F.3d 892, 897 (10th Cir. 2004). Because no case closely matches the facts of this

one, we review this circuit’s analysis of cases with similar circumstances.

       In Carter, officers received a tip about “possible drug use and stolen property” at a

residence. 360 F.3d at 1238. Based on that information officers proceeded to perform a

“knock and talk” at the home around midnight after first driving by the house several

times and observing lights on inside. Id. After officers arrived, the defendant and a

friend emerged from the garage behind the house and “approached the officers in a

combative manner.” Id. The officers identified themselves, and one officer drew his

weapon, causing the defendant to stop and drop a bag of marijuana. Id. We determined

that, based on this combination of factors, the officers had probable cause only for

“possession of a small quantity of marijuana.” Id. at 1242.

       By contrast, we have found probable cause for more serious crimes when a tip

about drug trafficking at a home was corroborated by other evidence such as interviews

with known addicts coming from the home. United States v. Baca, 480 F.2d 199, 203

(10th Cir. 1973). In United States v. Artez, 389 F.3d 1106 (10th Cir. 2004), an officer

received a tip from a reliable confidential informant about an alleged methamphetamine

dealer. Id. at 1109. The officer corroborated the tip by verifying that the alleged dealer

lived at the residence identified by the informant and had a criminal record; collecting

corroborating information from another informant; performing two controlled drug

purchases using informants; and observing short term traffic at the residence. Id. at 1109-

10. We determined that this evidence constituted “a ‘substantial basis’ for . . . probable
                                            -11-
cause” for drug trafficking. Id. at 1115. See also United States v. Corral, 970 F.2d 719,

727 (10th Cir. 1992) (finding probable cause that drugs were stored at the defendant’s

residence when a reliable confidential informant told officers cocaine was stored and

distributed there; police observed an unusually high volume of visitors entering and

leaving the residence, consistent with drug-trafficking; and the defendant attempted to

complete a cocaine transaction with undercover detectives at another location); United

States v. Griffin, 501 F. App’x 751, 756-57 (10th Cir. 2012) (unpublished) (finding

probable cause for drug trafficking where officers received a tip about “constant activity”

at a home of a convicted felon, observed “short-term traffic” at the home, and found

garbage in a nearby alley that contained common drug packaging materials).2

       This case falls in between Carter and Artez. Agent Stephens did not have tips

from a reliable source about drug dealing, only complaints from anonymous neighbors

about traffic at Ms. Moore’s home. He corroborated those complaints by witnessing four

cars parked in Ms. Moore’s driveway on one occasion and three cars coming and going

on another, but he never verified who owned the cars or interviewed anyone leaving the

home. Combining this information with what he knew about Ms. Moore’s drug history,

Agent Stephens suspected drug dealing at the home but admittedly did not have enough

evidence for probable cause. At the home, he heard “scurrying” and smelled marijuana.



       2
        This opinion is unreported and is not binding precedent. We cite it here for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                           -12-
Based on that evidence, the Government argues he had probable cause to believe a

“serious crime” was being committed.

       This combination of evidence is sufficient to establish probable cause that a

crime—possession of marijuana—was being committed, but there was not sufficient

evidence to establish probable cause for drug trafficking. See, e.g., United States v.

Scroger, 98 F.3d 1256, 1259 (10th Cir. 1996) (finding probable cause of drug

manufacturing where the defendant “answered the door . . . holding a hot plate which is

commonly used to manufacture methamphetamine; his fingertips were stained rust-

colored which is commonly the result of handling . . . an ingredient in methamphetamine

production; and there was a strong odor of methamphetamine production”); Aquino, 836

F.2d at 1273 (determining that officers “clearly had probable cause” of the sale of illegal

drugs only after the informant successfully acquired a sample of the drugs).

       The probable cause evidence here was limited to marijuana possession, and

marijuana possession is not a “serious crime.” The officers’ concern that the Defendants

might be destroying evidence of marijuana possession therefore fails the “serious crime”

element of the Aquino test. Because we determine that the first component of the second

element of the four-part test for exigent circumstances is dispositive, we do not address

the last two elements of the test.

2. Officer safety

       We also have recognized concerns for officer safety as a valid exigent

circumstance justifying warrantless entry. United States v. Smith, 797 F.2d 836, 840
                                            -13-
(10th Cir. 1986). This exception provides that “(1) the law enforcement officers must

have reasonable grounds to believe that there is immediate need to protect their lives or

others or their property or that of others, (2) the search must not be motivated by an intent

to arrest and seize evidence, and (3) there must be some reasonable basis, approaching

probable cause, to associate an emergency with the area or place to be searched.” Id.

        At the suppression hearing, Agent Stephens argued that he feared for his and the

other officers’ safety because the home’s owner, Ms. Moore, was a known felon, and he

suspected Mr. Mongold was a felon as well, based on his “prison tattoos.” ROA (12-

7073), Vol. II at 14-15. On appeal, the Government does not argue that the need to

protect the officers’ safety excused their entry, but the district court cited it as a basis to

justify the officers’ warrantless entry of Ms. Moore’s home. We therefore address it

here.

        Officer safety is not an alternative ground to affirm because the first element of the

test is dispositive. The Government presented no evidence that the officers had

“reasonable grounds to believe that there [was] immediate need to protect their lives or

others.” Smith, 797 F.2d at 840. Before entering the home, the officers had not seen a

weapon or any other indication of heightened danger. They could most easily have

protected the officers’ safety by leaving Ms. Moore’s home, not by entering it.

        The test for justifying warrantless entry into a home based on the need to protect

officer safety requires that the facts establish all three elements of the test. The

Government failed to provide evidence to satisfy the first element. The officers’
                                              -14-
warrantless entry therefore was not justified by the need to protect officer safety.

Because we determine that the first element of the three-part test is dispositive, we do not

address the last two elements of the test.

                                       *       *        *

       In sum, the district court erred by accepting the magistrate judge’s determination

that destruction of evidence and officer safety justified the warrantless entry. The

officers’ warrantless entry of Ms. Moore’s home violated her Fourth Amendment rights

and those of the home’s other occupants.

                                           B. Consent

       Absent exigent circumstances, officers may enter a home without a warrant based

on the residents’ consent if the officers “are lawfully present in the place where the

consensual encounter occurs” and “consent is freely given.” King, 131 S. Ct. at 1858.

But if consent follows immediately after a Fourth Amendment violation, “the government

must prove not only the voluntariness of the consent under the totality of the

circumstances, but the government must also establish a break in the causal connection

between the illegality and the evidence thereby obtained.” United States v. Melendez-

Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994) (citation omitted) (quotations omitted); see

also Brown v. Illinois, 422 U.S. 590, 602 (1975) (requiring that, in addition to being

voluntary, consent be “sufficiently an act of free will to purge the primary taint” of an

initial Fourth Amendment violation (quotations omitted)).


                                              -15-
         The district court adopted the magistrate judge’s R&R, which relied on Agent

Stephens’s testimony as evidence that the Defendants’ consent was voluntary under a

totality of the circumstances standard. See Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973). Agent Stephens testified that he directed the home’s four residents onto the front

porch unhandcuffed. He informed them of their Miranda rights, and all four residents

voluntarily consented. As explained above, “[w]e do not disturb these factual findings, as

they are not clearly erroneous.” United States v. Fernandez, 18 F.3d 874, 882 (10th Cir.

1994).

         Because the district court found no Fourth Amendment violation, it did not

address whether the Government purged the Fourth Amendment taint. When, as in this

case, the district court determined that the Defendants voluntarily consented but did not

address whether a break in the chain of events overcame the initial Fourth Amendment

violation, we “review the fruit-of-the-poisonous-tree issue de novo, or remand for the

district court to make a finding.” Carter, 360 F.3d at 1243.

         This question requires consideration of “1) the temporal proximity between the

police illegality and the consent to search; 2) the presence of intervening circumstances;

and particularly 3) the purpose and flagrancy of the official misconduct.” Melendez-

Garcia, 28 F.3d at 1054 (citing Brown, 422 U.S. at 603-04). Because the district court is

better equipped to address these factual questions in the first instance, we remand this

issue to the district court for consideration.


                                                 -16-
                                  IV. CONCLUSION

       The officers’ initial entry into Ms. Moore’s home violated the Fourth Amendment,

obliging the district court to determine whether the violation tainted the occupants’

subsequent consents to enter. Because the district court did not evaluate this issue, we

reverse and remand to the district court to make that determination.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




                                            -17-
