09-4263-cr
United States v. Emanus


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 30th day of August, two thousand and ten.

Present:         ROSEMARY S. POOLER,
                 ROBERT D. SACK,
                 REENA RAGGI,
                            Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                                        Appellee,

                           -v-                                         (09-4263-cr)


SYLVESTER EMANUS,

                                                        Defendant-Appellant.


For Appellee:             Maryanne E. Kampmann, Stetler, Allen & Kampmann, Burlington, VT

For Appellant:            Timothy C. Doherty, Jr., Assistant United States Attorney for the District
                          of Vermont, Burlington, VT (Gregory L. Waples, on the brief)

        Appeal from the United States District Court for the District of Vermont (Sessions, C.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
        Defendant-Appellant Sylvester Emanus appeals the denial of his motion to suppress
evidence seized following a warrantless entry into the hotel in which he was staying. We
assume the parties’ familiarity with the underlying facts, procedural history, and issues for
review.

        Warrantless entries, including entries into hotel rooms, are presumptively unreasonable
under the Fourth Amendment. See Payton v. New York, 445 U.S. 573, 586 (1980); Stoner v.
California, 376 U.S. 483, 490 (1964). To overcome the presumption of unreasonableness,
officers must show both that there was probable cause to believe a crime was being committed or
evidence of a crime would be found, and that exigent circumstances justified warrantless entry.
See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam) (citing Payton, 445 U.S. at 590).

         Probable cause exists when there is “a fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); Martinez
v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). In the present case, the agents established that
there was a fair probability that there was evidence of criminal activity within defendant’s hotel
room before they entered. First, a confidential informant (“CI”) stated that s/he overheard a
series of telephone conversations between two acquaintances and their drug supplier in which
the parties haggled over the details of a proposed drug sale. The CI also stated that the supplier
had a phone number with a 718 area code, that the informant believed that the supplier was
African-American, and that the supplier was being assisted by another person. The CI also
stated that her or his acquaintances indicated that their supplier was staying at the local Red Roof
Inn. Much of this was later corroborated by the agents when Red Roof employees confirmed
that two African-American males traveling from Brooklyn were then registered at the hotel and
had paid cash for a room. The agents’ own investigation revealed that one of these individuals
had a prior drug arrest. Thus, while defendant argumes that the government did not establish the
reliability of the CI or her/his sources, the fact that the CI’s information was heavily
corroborated renders concerns about her/his general reliability academic. See Gates, 462 U.S. at
242 (police may rely on an informant whose statements are reasonably corroborated by other
matters within the officers’ knowledge).

        Further, the agents conducted a “knock-and-talk” interview from outside defendant’s
hotel room before they entered, the circumstances of which further supported a reasonable
officer’s belief that evidence of a crime was to be found within. The room’s occupants did not
answer multiple knocks on the door. When confronted by name, defendant’s associate – not a
party here – stated that he would open the door but appeared to take no action to do so. Instead,
agents heard a sound from within that they concluded was the sound of a bathroom door being
closed. Taken together with the CI’s information, all this made it reasonable for the agents to
believe that the room’s occupants were attempting to conceal evidence of illegal activity.

        The commotion within the hotel room is also relevant to our exigent circumstances
analysis. Exigent circumstances exist, inter alia, when there is “an urgent need to prevent the
loss of evidence.” United States v. MacDonald, 916 F.2d 766, 773 (2d Cir. 1990) (en banc).
Here, having heard the sound of an inner door being shut from within the hotel room, a
reasonable officer could have concluded that one of the room’s occupants had withdrawn to the
bathroom in order to attempt to destroy evidence.


                                                 2
        Defendant argues that there was no way that the agents could have known that it was a
bathroom door that had been closed within the hotel room. However, the question is not one of
knowledge, but of reasonable likelihood: the agents were not required to review a floor plan in
order to reasonably conclude that it was a bathroom door that was being closed. More to the
point, the district court found that “[s]ounds emanating from the room reasonably suggested to
the officers the defendants were attempting to destroy evidence in the bathroom.” United States
v. Cromer, Nos. 2:08-CR-72-1, 2:08-CR-72-2, 2009 WL 1181301, at *3 (D. Vt. Apr. 30, 2009).
We review factual findings in support of the district court’s exigent circumstances determination
for clear error. MacDonald, 916 F.2d at 769. Defendant has not shown that the district court’s
findings were clearly erroneous. The judgment of conviction is, therefore, AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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