                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1315
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Missouri.
Bobby R. Leveringston,                   *
                                         *
             Appellant.                  *
                                         *
                                    ___________

                              Submitted: September 16, 2004
                                 Filed: February 16, 2005
                                  ___________

Before COLLOTON, HEANEY, and HANSEN, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

       Bobby R. Leveringston entered a conditional plea of guilty to a charge of
possession of crack cocaine with intent to distribute. He reserved the right to appeal
the district court's denial of his motion to suppress evidence seized from his hotel
suite after his arrest. We agree with the district court that the police had sufficient
justification to enter the hotel suite without a warrant, and we therefore affirm the
judgment of the district court.1

                                          I.

       On November 17, 2002, Officers Jason Quint and Michael Ward of the Kansas
City Police Department responded to reports of suspicious drug activity at the
Marriott Residence Inn. The manager of the hotel told the officers that he suspected
drug activity had been occurring in Leveringston's suite, because people had been
coming to the suite throughout the day and staying only two to three minutes before
leaving. The manager told the officers that he was unwilling to tolerate drug activity
at his motel, and that he planned to evict Leveringston.

       The two officers knocked on the door of the suite. Leveringston opened the
curtains, saw the officers, looked surprised, and closed the curtains again. The
officers knocked again and heard loud noises coming from inside the suite, including
what sounded like dishes breaking, pots and pans slamming, and a garbage disposal
and water both running. The officers pounded on the door and called out, "Police.
Open the door. Is everything okay?," but received no response. As he continued to
knock on the door, Quint called for a second patrol car to assist in forcing entry, if
necessary. The officers continued knocking for two or three minutes. Quint then
announced, "Open the door or we're going to kick in the door." The loud noises
stopped (except for the garbage disposal and running water), and Quint heard what
he believed to be a window opening from inside the suite. Quint looked around the
corner and saw Leveringston jump from the second-story window of the suite.




      1
       The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.

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       Both officers chased Leveringston as he ran through the hotel complex. As
they pursued him, Leveringston jumped over a six-foot wrought iron fence
surrounding the hotel complex, fell fifteen feet to the ground, and then continued
running. A third policeman in a second patrol car arrived on the scene and
apprehended Leveringston. After Leveringston was stopped, Officers Quint and
Ward returned to their patrol car and drove to where Leveringston was located. A
search of Leveringston's person discovered $1,355 in cash and a key card to the hotel
suite. Both officers noticed that Leveringston's hand was wounded and that his hand
and shirt were covered in blood. Quint called for an ambulance and for a wagon to
transport Leveringston to police headquarters. Quint and Ward returned to the hotel
after Leveringston was taken from the scene.

       Back at the hotel, the officers arranged for the manager to admit them to
Leveringston's suite. The officers looked around the living room, bedroom, and
bathroom, where they observed blood near a sink, a scale, plastic baggies, a razor
blade, and what they believed to be crack cocaine.

       Detective Jeanelle Cesena of the Drug Enforcement Unit was then called to the
scene, and she obtained a search warrant for the suite approximately two or three
hours later. Upon conducting a search pursuant to the warrant, police seized 25.1
grams of cocaine base and 47.31 grams of cocaine from baggies on the floor and from
inside the garbage disposal.

      Leveringston was charged with possessing with the intent to distribute five
grams of more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B), and possessing with the intent to distribute cocaine base in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He moved to suppress evidence on the
ground that the searches of the hotel suite were conducted in violation of his rights
under Fourth Amendment. The district court, adopting a magistrate judge's report and
recommendation, denied the motion to suppress. Leveringston then entered a

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conditional plea of guilty to the first count of the indictment, reserving his right to
appeal the denial of his motion to suppress. He was sentenced to 120 months'
imprisonment.

                                          II.

       Leveringston asserts that the evidence of drug trafficking seized from his hotel
suite was obtained in violation of the Fourth Amendment's proscription against
unreasonable searches and seizures. The Fourth Amendment generally prohibits
entry to a home without a warrant, unless the circumstances meet an established
exception to the warrant requirement, such as the presence of exigent circumstances.
See Payton v. New York, 445 U.S. 573, 589-90 (1980). Leveringston observes that
"the protections against warrantless intrusions into the home . . . apply with equal
force to a properly rented hotel room during the rental period," United States v.
Rambo, 789 F.2d 1289, 1295 (8th Cir. 1986), and argues that the warrantless entry
into the hotel suite by Officers Quint and Ward was unjustified by exigent
circumstances. Although the disputed evidence was seized only after police obtained
a warrant to search the suite, Leveringston contends that the initial warrantless entry
tainted the seizure.

       The government counters that the later-obtained warrant provides a sufficient
basis for the disputed seizure, even assuming the initial entry was unlawful, so there
is no need to decide whether exigent circumstances justified the warrantless entry.
The government's position is premised on the "independent source doctrine," which
rests upon the policy that "while the government should not profit from its illegal
activity, neither should it be placed in a worse position than it otherwise would have
occupied." Murray v. United States, 487 U.S. 533, 542 (1988). In this case, the
government contends that although the affidavit in support of the search warrant
included information gained during the initial entry, the remaining information in the
affidavit established probable cause to search the hotel suite. Thus, says the

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government, the warrant was obtained "independent" of any possible illegality in the
initial entry.

       We cannot accept the government's position on this point, because it
understates the showing required to establish that a search warrant is genuinely
independent of an earlier entry. The Supreme Court has explained that a search
warrant obtained after an illegal entry is not an independent source of evidence if "the
agents' decision to seek the warrant was prompted by what they had seen during the
initial entry, or if information obtained during that entry was presented to the
Magistrate and affected his decision to issue the warrant." Murray, 487 U.S. at 542
(footnote omitted). The government's argument in this case is directed only to the
second part of that equation: because the affidavit established probable cause to
search the suite based on information not obtained during the initial entry, the
information obtained during that entry did not affect the magistrate's decision to issue
the warrant. See United States v. Packer, 730 F.2d 1151, 1156 (8th Cir. 1984);
United States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980).

       Murray makes clear, however, that to employ the independent source doctrine,
the government also must establish that the police would have sought a warrant if
they had not earlier entered the hotel suite. It is not sufficient, under Murray, for a
court of appeals to infer from the circumstances that the police inevitably would have
sought a warrant; findings of fact by the district court are required. 487 U.S. at 543.
Here, the district court found that after the initial warrantless entry, "Sergeant Arroyo
called Detective Cesena of the Drug Enforcement Unit who arrived on the scene and,
based on her observations of the suite, obtained a no-knock search warrant for the
suite approximately two or three hours later." (D.R. 3) (emphasis added). While this
finding does not preclude the possibility that officers other than Detective Cesena
would have sought a warrant even if they had been prevented from entering the suite
without a warrant, it is not our function to determine the facts, and the district court



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certainly did not "explicitly find that the agents would have sought a warrant if they
had not earlier entered the [hotel suite]." Murray, 487 U.S. at 543.

       When the government seeks to rely on the independent source doctrine in a
case involving a later-obtained warrant, it should present specific evidence that the
officers were not prompted by allegedly unlawful activity to obtain the warrant, and
should seek a finding on that point from the district court. In this case, it turns out,
the government never even raised the independent source doctrine in the district
court, so it is little wonder that the district court made no pertinent finding.

       The government's alternative argument echoes the district court's conclusion
that the disputed evidence was admissible because the initial warrantless entry to the
hotel suite was justified by exigent circumstances. At the time the officers first
knocked and announced their presence at the hotel suite, there is no doubt that the
police had both probable cause to investigate and exigent circumstances that would
have permitted a warrantless entry. The hotel manager had informed the officers of
signs of suspicious drug activity in Leveringston's suite, that is, frequent visitors to
the suite who stayed only two or three minutes before leaving. The occupant of the
suite reacted to police knocking by looking through curtains, expressing surprise, and
then immediately shutting the curtains. This response was followed by sounds of pots
and pans slamming, dishes breaking, water flowing, and a garbage disposal running.
The officers reasonably could infer that these sounds indicated the destruction of
evidence of drug trafficking in response to the presence of the police. Police then
observed Leveringston flee from the suite, suggesting at least consciousness of guilt
on his part. If the officers had entered the suite at that moment, we believe it is clear
that entry without a warrant would have been justified by probable cause that
evidence of drug trafficking was within and that destruction of evidence was
imminent.




                                          -6-
       The police officers, however, did not enter immediately in response to this
exigency. When Leveringston lept from the window and fled the hotel suite, Officers
Quint and Ward participated in the pursuit and apprehension of Leveringston, and
they remained with Leveringston until he was transported from the scene. The
officers then returned to the hotel, and asked the hotel manager to open
Leveringston's suite. Leveringston contends that the delay occasioned by the chase
and arrest removed any exigency that might have justified entry at an earlier point in
time.

       In evaluating whether a warrantless entry was justified by exigent
circumstances, we consider the circumstances that confronted the police at the time
of the entry. As with most issues arising under the Fourth Amendment, we apply an
objective standard to evaluate the reasonableness of an assertion that exigent
circumstances justified a warrantless entry. United States v. Morales, 737 F.2d 761,
764 (8th Cir. 1984); United States v. Selberg, 630 F.2d 1292, 1295-96 (8th Cir. 1980).
Our analysis, therefore, is not limited to the subjective beliefs of the police officer
who actually made the entry. We examine, rather, what an objectively reasonable
officer on the scene could have believed, for if such an officer would have had
sufficient grounds to believe there was an exigency, then the Fourth Amendment did
not require a warrant, and the suspect's constitutional rights were not violated by a
warrantless entry. See generally United States v. Knights, 534 U.S. 112, 122 (2001);
United States v. Jones, 990 F.2d 405, 408 (8th Cir. 1993); Klingler v. United States,
409 F.2d 299, 304 (8th Cir. 1969).

      In this case, we believe that two separate concerns created a legitimate need for
immediate action that "could not brook the delay incident to obtaining a warrant."
Dorman v. United States, 435 F.2d 385, 392 (D.C. Cir. 1970) (en banc). The first is
destruction of evidence. The risk that evidence will be destroyed during the time
required to obtain a search warrant can be an exigent circumstance that justifies a
warrantless entry. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); Schmerber v.

                                         -7-
California, 384 U.S. 757, 770-71 (1966). With water continuing to run and a garbage
disposal continuing to grind inside Leveringston's hotel suite, the police had grounds
to believe there was a fair probability that evidence of drug trafficking – a serious
felony offense – would be lost if they did not make immediate entry. For one thing,
the officers could not be assured that after Leveringston fled, no accomplice (perhaps
one of his "frequent visitors") remained behind to continue the destruction of drug
trafficking evidence by feeding it through a garbage disposal. And even if the suite
were empty, it was likely that Leveringston himself had placed evidence in the
garbage disposal prior to fleeing, such that the continuing flow of water threatened
to dissolve or wash down the drain a quantity of drugs or other evidence. Indeed, the
police ultimately did seize cocaine from the garbage disposal after making the
warrantless entry.

       We also believe that the discovery of blood on Leveringston's hand and shirt
at the time of his arrest, combined with the sounds of dishes breaking and pots
slamming immediately before Leveringston's flight, gave the police a sufficient basis
to believe that there may be a person in need of immediate aid within the hotel suite.
See Mincey v. Arizona, 437 U.S. 385, 392 (1978). While it was of course possible
that the blood that covered Leveringston was simply his own blood flowing from
injuries incurred during his flight from the hotel suite, a reasonably prudent officer
– having heard the loud commotion in the suite and witnessed the blood on
Leveringston – also could infer a fair probability that another party was injured in the
suite after some sort of struggle with Leveringston. The Fourth Amendment does not
require certitude before police may act without a warrant to protect persons or
evidence; as we understand the Supreme Court, a showing of probable cause is
sufficient. See Minnesota v. Olson, 495 U.S. 91, 100 (1990). In our judgment, the
circumstances here were sufficient to lead a police officer of reasonable caution to
conclude that prompt investigation into the potential of an injured party in need of
assistance was warranted.



                                          -8-
       Our recent opinion in United States v. Janis, 387 F.3d 682 (8th Cir. 2004), is
instructive on this point. In Janis, the defendant had shot himself in the leg with a
firearm while in his own home, and then left the firearm in the home when he traveled
to a hospital. Police learned of the incident while at the hospital, and then progressed
to the home, where they found a puddle of blood in the driveway, and a trail of blood
between the driveway and the front door. Although the police had no specific
information the blood was from any person other than Janis, or that any other person
was injured, we held that a warrantless entry of the home "could be justified for the
officers to determine whether anyone else was injured or in danger." Id. at 688
(emphasis added). Because the officers in Janis reasonably could have believed that
exigent circumstances were present, the entry was consistent with the Fourth
Amendment. Id. So too here.

        Leveringston makes much of the fact that Officers Quint and Ward did not
enter the hotel suite until after Leveringston was apprehended, searched, and removed
from the scene. We are not persuaded, however, that the delay between the initial
encounter at the door of the hotel suite and the warrantless entry undermines the
district court's finding of exigent circumstances. While the record does not reveal a
precise time line of events, it suggests strongly that no more than twenty minutes
elapsed between Leveringston's flight from the suite and the warrantless entry.2 This
is far less than the two hours that eventually were required to obtain a warrant, and
for the reasons discussed, we do not believe the delay eliminated the reasonableness
of a concern that evidence would be destroyed if the officers did not enter promptly.



      2
        Officers Quint and Ward first arrived at the hotel at 2:52 p.m. (Hrg. Tr. 3).
They spoke with the acting manager, and then knocked on the door to Leveringston's
suite for at least two minutes before leaving to chase the fleeing suspect. (Id. at 4-7).
The officers then returned to the suite, and entered with the assistance of the manager.
After their entry, the officers telephoned Detective Cesena, who testified that she
traveled to the scene and arrived between 3:20 and 3:30 p.m. (Id. at 47).

                                          -9-
See generally United States v. McEachin, 670 F.2d 1139, 1145 (D.C. Cir. 1981)
(delay before search did not eliminate exigent circumstances).

       The delay is largely irrelevant to the concern that there may have been a person
within the suite in need of immediate aid. While the officers heard loud noises in the
suite before the suspect fled, the officers did not observe the blood on Leveringston's
hands and shirt until he was apprehended, and it was that observation that gave rise
to the heightened concern of a second exigency. Thus, that the officers failed to enter
the suite prior to chasing and apprehending Leveringston does not refute the
conclusion that a reasonable officer could have believed after the suspect's
apprehension that the totality of circumstances justified an entry to investigate
whether any other person was injured and in need of assistance. See United States v.
Gill, 354 F.3d 963, 967 (8th Cir. 2004).

      The judgment of the district court is affirmed.
                 ______________________________




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