                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS               FILED
                                                        U.S. COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT              ELEVENTH CIRCUIT
                      ________________________             JANUARY 28, 2009
                                                           THOMAS K. KAHN
                                                               CLERK
                             No. 08-11913
                         Non-Argument Calendar
                       ________________________

                    D. C. Docket No. 07-00197-CR-WS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MICHAEL DAVIS TENNIS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                            (January 28, 2009)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Michael Davis Tennis appeals his conviction for being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). Specifically, he appeals the

district court’s denial of his motion to suppress all evidence and statements

obtained as a result of the police’s warrantless entry into his apartment. Tennis

argues the police violated his Fourth Amendment rights because they did not face

exigent circumstances or have probable cause to believe immediate entry was

necessary to render emergency assistance to an injured occupant or to protect an

occupant from imminent injury.

      We review a district court’s denial of a motion to suppress evidence as a

mixed question of law and fact. United States v. Holloway, 290 F.3d 1331, 1334

(11th Cir. 2002). We review the district court’s findings of fact for clear error and

its application of the law de novo. Id. The district court’s choice between two

permissible views of evidence cannot be clear error. United States v. Ndiaye, 434

F.3d 1270, 1305 (11th Cir. 2006). We construe the facts in the light most

favorable to the prevailing party below, which, in this case is the government.

Holloway, 290 F.3d at 1334.

      The Fourth Amendment of the United States Constitution provides: “The

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend.



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IV. “Under the Fourth Amendment, searches and seizures ‘inside a home without

a warrant are presumptively unreasonable.’” United States v. Davis, 313 F.3d

1300, 1302 (11th Cir. 2002) (quoting Payton v. New York, 100 S. Ct. 1371, 1380

(1980)). However, a warrantless search or seizure of a home may be justified

“where both probable cause and exigent circumstances exist.” Id. The government

bears the burden of proving an exception to the warrant requirement. Holloway,

290 F.3d at 1337.

      The exigent circumstances doctrine applies only when there is a compelling

need for official action, but no time for law enforcement to secure a warrant. Id. at

1334. The exigent circumstances doctrine extends to situations involving “danger

of flight or escape, loss or destruction of evidence, risk of harm to the public or the

police, mobility of a vehicle, and hot pursuit.” Id. The doctrine also extends to

“emergency situations involving endangerment to life.” Id. at 1337. Under the

endangerment-to-life exception, “law enforcement officers may enter a home

without a warrant to render emergency assistance to an injured occupant or to

protect an occupant from imminent injury.” Brigham City v. Stuart, 126 S. Ct.

1943, 1947 (2006).

      In emergencies, probable cause exists when “officers reasonably believe a

person is in danger.” Holloway, 290 F.3d at 1338. “An action is ‘reasonable’



                                           3
under the Fourth Amendment, regardless of the individual officer’s state of mind,

‘as long as the circumstances, viewed objectively, justify the action.’” Brigham

City, 126 S. Ct. at 1948 (quotation and alteration omitted). “The officer’s

subjective motivation is irrelevant.” Id.

      Officer Ronnie Marshall received a call from a dispatcher around 5:00 a.m.

on October 10, 2006, to respond to a disturbance call. Corporal Jeremy Anderson,

riding in a separate patrol call, also responded. When both officers approached the

apartment door, they noticed the window to the left of the door was broken and a

security camera was over the right of the door. They heard sounds of yelling and

hollering inside the residence. The officers knocked on the door and Tennis came

to the window. They asked Tennis for identification and to ask what was going on

in the apartment. Tennis told them he had lost his keys and he had to break into his

apartment. Tennis was agitated and visibly impaired. He also muttered something

about having, or having had, an argument with his girlfriend. The officers could

not see the girlfriend to whom Tennis was referring.

      When asked for identification, Tennis turned and went back into the

apartment. Corporal Anderson entered the apartment after Tennis refused to stop

and come back to the officers. Officer Marshall followed Corporal Anderson into

the apartment and stopped at the entrance to the hallway so he could view all the



                                            4
doors and watch what was going on. Officer Marshall testified he and Corporal

Anderson entered the residence was because Tennis did not stop, they did not

know whether Tennis resided in the apartment, they were not sure why he would

not come back to them, and they did not know if something else was going on in

the apartment. Officer Marshall also testified they needed to enter the apartment

under the circumstances because Tennis had said he was mad at his girlfriend and

they did not know if she was in there or if she was hurt.

      The district court accepted the testimony of the witnesses as credible and

accurate and found the conflicts in the testimonies were not particularly material.

Officer Marshall testified Tennis was told to stop, did not stop, and proceeded

toward a hallway. Corporal Anderson testified he did not hear the order to stop,

did not remember the order to stop, and acknowledged maybe the order to stop was

not given. In the face of this conflicting testimony, the district court stated “I will

accept the testimony of the officer who said that it did happen.”

      The district court, relying on Holloway, 290 F.3d at 1331, found the officers

were reasonable in their assumptions and in their actions to enter the apartment and

had exigent circumstances to do so. The district court found the agitated and

impaired state of Tennis, the noises the officers heard emanating from the

apartment, and the fact Tennis said he had an argument with his girlfriend



                                            5
compelled a reasonable officer to conclude there was “something wrong going on

in the apartment, and certainly that someone in the apartment, including the

officers on the outside of the apartment, could be in danger.”

      The district court did not clearly err in its factual finding. Additionally,

based on a review of the record, exigent circumstances and probable cause existed

to support the officers’ warrantless entry. Under the circumstances, a reasonable

officer could have believed another unseen person was inside Tennis’s apartment,

and the person was injured or about to be injured. Therefore, we affirm Tennis’s

conviction.

      AFFIRMED.




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