                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2724
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         *    Appeal from the United States
      v.                                 *    District Court for the District
                                         *    of South Dakota.
Vernon R. Schmidt, Jr.,                  *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: December 14, 2004
                                 Filed: April 13, 2005
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      The United States appeals the district court's order granting Vernon
Schmidt, Jr.'s motion to suppress all the evidence obtained after an officer of the
Rosebud Sioux Tribal Police entered his home without a warrant. The government
contends that the district court erred both because exigent circumstances justified the
entry and because Mr. Schmidt committed a new and distinct crime after the entry.
We reverse and remand the case to the district court for further proceedings.
                                         I.
       In the early morning hours, Rosebud Sioux Tribal Police Officer Andrew
Martinez observed four cars that he believed were exceeding the speed limit. He
followed the vehicles and saw two of them pass the others and speed off. Officer
Martinez followed the remaining two cars until they pulled into the driveway of the
house that Mr. Schmidt shares with his grandmother on the Rosebud Sioux
Reservation. Officer Martinez parked his patrol car behind the vehicles and
approached three teenage boys, including Mr. Schmidt, who were standing in the
front yard of the house; two other teenage boys remained in one of the vehicles. As
Officer Martinez approached Mr. Schmidt, he made observations that led him to
believe that Mr. Schmidt, who was eighteen years old, had been consuming alcohol.
The exact nature of the exchange that ensued between Officer Martinez and
Mr. Schmidt is in dispute, but it is clear that Mr. Schmidt insisted that Officer
Martinez had no right to be on his property.

       Officer Martinez attempted to arrest Mr. Schmidt for underage drinking. As
Officer Martinez reached for his handcuffs, Mr. Schmidt kicked him in his left knee.
Mr. Schmidt then escaped and Officer Martinez tackled him but was unable to secure
him before he escaped again, running into his residence and closing the door. At that
point, Officer Martinez turned his attention to the other teenagers in the driveway and
arrested them for curfew violations. The arrest and detention of these individuals
took between five and ten minutes.

       While Officer Martinez was effecting these arrests, Mr. Schmidt emerged from
his house and began yelling at Officer Martinez from the doorstep. Mr. Schmidt
again insisted that Officer Martinez had no right to be on his property or to arrest him
there. This prompted Officer Martinez to approach the defendant. As he approached,
Mr. Schmidt once again retreated into his house and locked the door. Officer
Martinez then knocked on the door, announced his presence, and, when there was no



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response, kicked in the door and entered. At no point did Officer Martinez try to
secure a warrant.

       Once inside the house, Officer Martinez tried to gain control of Mr. Schmidt
in the hallway, but he escaped to the bedroom and began jumping on the bed while
yelling for his grandmother and throwing pillows and other objects at Officer
Martinez, causing him to lose his flashlight briefly. Mr. Schmidt then ran from the
bedroom and into the bathroom, closing the door behind him. After struggling to
open the bathroom door, Officer Martinez grabbed Mr. Schmidt by the belt as he was
attempting to escape out a window; but Mr. Schmidt wriggled free as Officer
Martinez was escorting him to the living room. Officer Martinez again gave chase,
and again he caught Mr. Schmidt, this time just a few feet outside the front door of
the residence. As they wrestled, Mr. Schmidt leaned his weight against Officer
Martinez's injured knee and Officer Martinez lost control of Mr. Schmidt, who then
ran away. The defendant was not arrested until weeks after the incident.

        Following the arrest, a grand jury returned a three-count indictment against
Mr. Schmidt for assaulting, resisting, or impeding a federal officer with a dangerous
weapon (shod feet), see 18 U.S.C. § 111; assaulting, resisting, or impeding a federal
officer resulting in bodily injury, see id.; and assault with a dangerous weapon (shod
feet), see 18 U.S.C. §§ 113(a)(3), 1153.

       Mr. Schmidt moved to exclude any testimony as to events that occurred after
Officer Martinez entered his house. The district court held that although Officer
Martinez had a right to approach Mr. Schmidt in his driveway, and, after the initial
scuffle in the driveway, had probable cause to believe that the defendant had
committed at least one felony offense, Officer Martinez's warrantless entry into
Mr. Schmidt's house violated the fourth amendment because it was not supported by
exigent circumstances. The court concluded that the officer's entry was motivated by
anger rather than exigency and that the officer abandoned his hot pursuit when he

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turned his attention to arresting the others in the driveway. The district court also
held that the charges against Mr. Schmidt dealt only with what took place in the
driveway before the entry into the home. For this reason, it refused to admit evidence
of the events inside the home under the so-called "new and distinct crime" theory.

                                            II.
       The government first contends that the district court erred in holding that
Officer Martinez's warrantless entry into Mr. Schmidt's home was not justified by
exigent circumstances. (Although the fourth amendment does not apply to the
conduct of Indian tribal officials in Indian territory, the same standards are applicable
to their actions under the Indian Civil Rights Act of 1968, see 25 U.S.C. § 1302(2);
United States v. Clifford, 664 F.2d 1090, 1091-92 n.3 (8th Cir. 1981).) When
reviewing a district court's conclusion regarding the presence of exigent
circumstances, we " 'review findings of historical fact only for clear error' and 'give
due weight to inferences drawn from those facts by resident judges and local law
enforcement officers.' " United States v. Ball, 90 F.3d 260, 262 (8th Cir. 1996)
(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). We review de novo the
ultimate conclusion that the historical facts amounted to exigent circumstances. Ball,
90 F.3d at 262.

       An exception to the warrant requirement permits an officer to enter a home if
he or she acts with probable cause in the presence of exigent circumstances. Radloff
v. City of Oelwein, 380 F.3d 344, 348 (8th Cir. 2004), cert. denied, 125 S. Ct. 967
(2005). Mr. Schmidt does not dispute the district court's finding that Officer Martinez
had probable cause to believe that he had committed a felony offense. In evaluating
whether exigent circumstances justify a warrantless entry, we concern ourselves with
"what an objectively reasonable officer on the scene could have believed." United
States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005). "[I]f such an officer
would have had sufficient grounds to believe there was an exigency, then the Fourth
Amendment d[oes] not require a warrant." Id.

                                          -4-
       The Supreme Court reaffirmed the proposition that the hot pursuit of a fleeing
suspect can be an exigent circumstance justifying a warrantless arrest in one's home
in Minnesota v. Olson, 495 U.S. 91, 100-01 (1990). See also United States v.
Santana, 427 U.S. 38, 42-43 (1976). Nevertheless, not all police pursuits will do so.
In Welsh v. Wisconsin, 466 U.S. 740, 753 (1984), the Supreme Court instructed courts
to weigh the "gravity of the underlying offense" in determining the legality of the
entry. The underlying offense here, assault with a dangerous weapon, is certainly a
serious offense. The Court cautioned, however, that probable cause to believe that
a serious crime has been committed does not, in and of itself, create an exigency. See
id. The Court in Welsh also required that the government demonstrate an "immediate
or continuous pursuit [of the suspect] from the scene of [the] crime," id., in order to
fall within the hot-pursuit exception. As we noted previously, the district court held
that Officer Martinez abandoned his pursuit of Mr. Schmidt when he took five to ten
minutes to arrest the others in the driveway.

       Against this legal background, we consider whether hot pursuit justified
Officer Martinez's entry into Mr. Schmidt's house in the relevant circumstances.
Though the question is close, we think that the answer is yes. Our conclusion is
primarily driven by a comparison of the present circumstances with those in Santana,
427 U.S. at 39-41. In Santana, the police set up a drug buy with marked money to
investigate drug dealers who were dealing out of the defendant's house. An
undercover officer drove to the defendant's residence with a target of the sting, who
went into the house and purchased heroin with marked bills. As they drove away
from the house, the officer obtained the drugs from the buyer; he then stopped the car,
displayed his badge, arrested the buyer, and asked her who had the money. After the
undercover officer notified other officers that the marked money was in the
defendant's possession, they drove approximately two blocks back to the defendant's
residence and spotted her standing in the doorway. Upon seeing the officers
approach, she retreated into her house. The officers, acting without a warrant,



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followed her into the house and arrested her. At trial, the defendant moved to
suppress the drugs and money found in her house. Id.

       The Court in Santana stated that when the police sought to arrest the defendant,
she was, much like Mr. Schmidt when he came onto his doorstep to taunt Officer
Martinez, "not merely visible to the public but was as exposed to public view, speech,
hearing, and touch as if she had been standing completely outside her house." Id. at
42. Thus, the Court concluded that when the police sought to arrest the defendant,
she was not in an area where she had an expectation of privacy, id. (citing Katz v.
United States, 389 U.S. 347, 351 (1967)), and the police were simply attempting to
effect a warrantless arrest of her in a public place upon probable cause pursuant to
United States v. Watson, 423 U.S. 411 (1976). Accordingly, the Court framed "[t]he
only remaining question" as "whether [the defendant's] act of retreating into her house
could thwart an otherwise proper arrest." Santana, 427 U.S. at 42. The Court
reasoned that once the defendant saw the police, there was a realistic expectation that
delay would result in the destruction of evidence and concluded that "a suspect may
not defeat an arrest which has been set in motion in a public place ... by the expedient
of escaping to a private place." Id. at 43.

       Here Mr. Schmidt persuaded the district court that Officer Martinez abandoned
his hot pursuit when he turned his attention to arresting the others in the driveway.
But we conclude that Officer Martinez's decision to arrest the others rather than enter
the home immediately is no more fatal to the justification of hot pursuit than the
decision by the officers in Santana to drive two blocks away from the residence,
complete the drug transaction, arrest the target, briefly confer, and then drive two
blocks back to the defendant's residence before arresting her. The Supreme Court
upheld the entry in Santana because when the police returned, they found the
defendant standing in a "public" place. Id. at 42. In the instant case, the facts are
even more stark: Mr. Schmidt voluntarily came back outside his home and began
yelling at Officer Martinez, only to retreat when Officer Martinez approached.

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Apparently, Mr. Schmidt thought that the enforcement of the criminal laws resembles
a children's game of tag where one is 'safe' if one reaches 'home' before being tagged
by an officer. Cf. Gasset v. State, 490 So. 2d 97, 98-99 (Fla. Dist. Ct. App. 1986).
But Santana instructs that our criminal laws do not play such games.

       This would be a more difficult case if Mr. Schmidt had not reemerged from his
home. We would then have had to confront directly the question of whether the five
to ten minutes that passed while Officer Martinez arrested the other teenage boys in
the driveway cooled his initial hot pursuit. But cf. Leveringston, 397 F.3d at 1117-18.
In the instant case, however, as in Santana, the defendant emerged into a "public"
place at a scene where the police had probable cause to believe that he had committed
a crime only minutes earlier. Once Mr. Schmidt reappeared at the scene of the crime,
Officer Martinez gave chase immediately and the chase continued uninterrupted. We
therefore reject Mr. Schmidt's argument that the time that Officer Martinez took to
arrest the others in the driveway distinguishes his case from Santana.

       Mr. Schmidt also attempts to distinguish his case from Santana by arguing that
the fact that a delay would likely have resulted in the destruction of evidence figured
in the Santana decision. We recognize that this assertion is not without support. For
example, in Duncan v. Storie, 869 F.2d 1100, 1102-03 n.5 (8th Cir. 1989), cert.
denied, 493 U.S. 852 (1989), we indicated that it was the existence of the additional
exigent circumstance in Santana that transformed the pursuit into a truly exigent
circumstance, or as the court put it, "a true 'hot pursuit,' " Santana, 427 U.S. at 42, as
quoted in Duncan, 869 F.2d 1102-03 n.5, thereby justifying the officer's entry into the
house. In Olson, 495 U.S. at 100, however, the Supreme Court implicitly rejected this
view and endorsed the idea that hot pursuit can justify a warrantless entry even in the
absence of another concern that requires swift police action. There the Court
considered the standard applied by the Minnesota Supreme Court to determine
whether entry was lawful: The state court had observed that a warrantless intrusion
may be justified by hot pursuit, the imminent destruction of evidence, the need to

                                           -7-
prevent escape, or the risk of danger to the police or others and "thought that in the
absence of hot pursuit there must be at least probable cause to believe that one or
more of the other factors justifying the entry were present." Id. The United States
Supreme Court approved this logic, calling it both "essentially the correct standard"
and "the proper legal standard." Id. This endorsement leads us to conclude that hot
pursuit can, without more, justify a warrantless entry.

      Even if this is not correct, we recently held that the threat to public safety
created by the possibility of juveniles driving away from a house while under the
influence of alcohol created an exigency justifying a warrantless entry into the house.
See Radloff, 380 F.3d at 348. The facts of this case present a similar risk. Officer
Martinez testified that he smelled a strong odor of alcohol on Mr. Schmidt and that
Mr. Schmidt's speech was slurred. Mr. Schmidt disputes the government's assertion
that he was intoxicated that night. We think, however, that under Radloff, an
objectively reasonable officer, believing, as the district court found that Officer
Martinez did, that Mr. Schmidt had been consuming alcohol, could have reasonably
believed that the same threat presented itself here. Accordingly, we reject
Mr. Schmidt's attempt to distinguish his case on this ground.

                                            III.
       We also note that the district court's reading of the indictment does not comport
with ours. The district court concluded that "[n]one of the present pending charges
in federal court deal with alleged criminal activities after the officer broke down the
door of the residence." As a result of this reading of the indictment, the district court
refused to rule that the evidence was admissible because Mr. Schmidt's acts inside the
home constituted a new and distinct crime. We find no reason not to read Count II
of the indictment, alleging that Mr. Schmidt did "forcibly assault, resist, oppose,
impede, intimidate and interfere with Andrew Martinez, resulting in the infliction of
bodily injury to Andrew Martinez, a law enforcement officer ... while said officer was
engaged in the performance of his official duties, in violation of 18 U.S.C. § 111," as

                                          -8-
encompassing the events inside the house. (Mr. Schmidt's actions inside the house,
including throwing objects at Officer Martinez and resisting Officer Martinez in a
manner that further injured his knee, could fall within the prohibitions of 18 U.S.C.
§ 111, which are specifically alleged in Count II.)

       Our conclusion that Mr. Schmidt's actions inside the house could constitute a
new and distinct crime does not depend on our earlier conclusion that Officer
Martinez's entry was lawful. In our circuit, resistance to an illegal arrest can furnish
grounds for a second, legitimate arrest. See United States v. Dawdy, 46 F.3d 1427,
1430-31 (8th Cir. 1995), cert. denied, 516 U.S. 872 (1995). Therefore, even if
Officer Martinez's first attempt to arrest Mr. Schmidt inside the house was invalid,
Mr. Schmidt's resistance provided an independent ground for his arrest, see Law and
Order Code of the Rosebud Sioux Tribe, § 5-5-1, that thereafter furnished an
independent justification for Officer Martinez's presence in the house. See United
States v. Collins, 200 F.3d 1196, 1198 (8th Cir. 2000); Dawdy, 46 F.3d at 1430-31;
see also United States v. Hunt, 372 F.3d 1010, 1012 (8th Cir. 2004); United States v.
Udey, 748 F.2d 1231, 1240 (8th Cir. 1984), cert. denied, 472 U.S. 1017 (1985).
Accordingly, the fourth amendment does not bar evidence obtained after Mr. Schmidt
committed a new crime. "A contrary rule would virtually immunize a defendant from
prosecution for all crimes he might commit that have a sufficient causal connection
to the police misconduct." United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir.
1982), cert. denied, 461 U.S. 933 (1983). Whether Mr. Schmidt was indicted for this
new crime does not matter to the fourth amendment question, so long as he could
have been arrested for it as an objective matter. It may, of course, bear on relevance
or some other consideration of the rules of evidence, but it does not affect the
constitutionality of Officer Martinez's presence.




                                          -9-
                                        IV.
      Accordingly, we reverse the order of the district court suppressing the evidence
obtained after Officer Martinez's entry into Mr. Schmidt's home and remand for
proceedings consistent with this opinion.
                      ______________________________




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