                                                                          RECOMMENDED FOR FULL-TEXT PUBLICATION
12   United States v. Pollard, et al.      Nos. 98-5908/6118                   Pursuant to Sixth Circuit Rule 206
                                                                       ELECTRONIC CITATION: 2000 FED App. 0201P (6th Cir.)
                                                                                   File Name: 00a0201p.06
996 n.5 (6th Cir. 1994). While we generally limit “exigent
circumstances” to these three situations, we may recognize
new exigencies when necessary. See United States v. Rohrig,
98 F.3d 1506, 1519 (6th Cir. 1996). In determining whether         UNITED STATES COURT OF APPEALS
to fashion a new exigency, we assess the nature of the                           FOR THE SIXTH CIRCUIT
government interest involved; the interplay of that interest and                   _________________
the citizen’s privacy interests; and whether immediate action
is needed. See id. at 1518.
                                                                                                     ;
                                                                                                      
   In this case, none of our traditionally recognized exigent       UNITED STATES OF AMERICA,
                                                                                                      
circumstances justify the officers’ search of the home, and the               Plaintiff-Appellee,
                                                                                                      
facts of this case do not support creating a new exigency.

                                                                                                      
There is no evidence of any threat to Officer Askew; no                                                  Nos. 98-5908/6118
evidence that either Pollard or Rodriguez was armed; and no                    v.
                                                                                                      
evidence that either Pollard or Rodriguez intended to destroy                                          >
any evidence. Under the analysis we articulated in Rohrig,          JERRY POLLARD (98-5908)           
the government has not demonstrated that it was necessary                                             
                                                                                                      
                                                                    and EDDIE RODRIGUEZ
that the officers raid the home when they received the signal
                                                                           Defendants-Appellants. 
                                                                    (98-6118),
from the informant, nor has it shown, on the facts of this case,
that any legitimate government interests purportedly                                                  
vindicated by the “consent once remove doctrine” override                                            1
Pollard’s privacy expectations. In short, without any specific
reason to believe that evidence would be destroyed or that                Appeal from the United States District Court
officer safety was in danger, there is no justification for a          for the Western District of Tennessee at Memphis.
warrantless intrusion into the sanctity of a private home.           No. 97-20159—Julia S. Gibbons, Chief District Judge.
Without an exigent circumstance to support the government’s
entry, all evidence recovered after the illegal search should be                  Argued: January 28, 2000
suppressed. See, e.g., United States v. Dice, 200 F.3d 978,
982-83 (6th Cir. 2000).                                                        Decided and Filed: June 15, 2000

  While I agree that Rodriguez does not have standing to             Before: JONES, NORRIS, and SILER, Circuit Judges.
challenge the government’s search, I respectfully dissent from
the majority’s adoption of the “consent once removed”                                _________________
doctrine and its decision to affirm the denial of Pollard’s
suppression motion.                                                                       COUNSEL
                                                                   ARGUED: Doris A. Randle-Holt, OFFICE OF THE
                                                                   FEDERAL PUBLIC DEFENDER FOR THE WESTERN
                                                                   DISTRICT OF TENNESSEE, Memphis, Tennessee, Jeffrey
                                                                   M. Brandt, BRANDT LAW OFFICES, Cincinnati, Ohio, for
                                                                   Appellants. Thomas A. Colthurst, ASSISTANT UNITED

                                                                                               1
2     United States v. Pollard, et al.      Nos. 98-5908/6118        Nos. 98-5908/6118        United States v. Pollard, et al.   11

STATES ATTORNEY, Memphis, Tennessee, for Appellee.                                       ________________
ON BRIEF: Doris A. Randle-Holt, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                                                      DISSENT
DISTRICT OF TENNESSEE, Memphis, Tennessee, Jeffrey                                       ________________
M. Brandt, BRANDT LAW OFFICES, Cincinnati, Ohio, for
Appellants. Thomas A. Colthurst, ASSISTANT UNITED                       NATHANIEL R. JONES, Circuit Judge, dissenting. In
STATES ATTORNEY, Memphis, Tennessee, for Appellee.                   affirming the district court’s denial of Pollard’s motion to
                                                                     suppress, the majority adopts the Seventh Circuit’s “consent
  SILER, J., delivered the opinion of the court, in which            once removed” doctrine. This rule provides essentially that
NORRIS, J., joined. JONES, J. (pp. 11-12), delivered a               when an individual grants an undercover officer consent to
separate dissenting opinion.                                         enter a residence, the citizen has sufficiently compromised his
                                                                     Fourth Amendment privacy expectations to justify a
                     _________________                               warrantless search. See United States v. Akinsaya, 53 F.3d
                                                                     852, 856 (7th Cir. 1995). Because I believe this doctrine
                         OPINION                                     represents an unjustified extension of our traditional exigent
                     _________________                               circumstances jurisprudence, I respectfully dissent.
   SILER, Circuit Judge. Defendants Jerry Pollard and Eddie             While the Fourth Amendment is implicated whenever
Rodriguez appeal their convictions after entering conditional        government attempts to search its citizens, its protections
guilty pleas of conspiracy to possess with intent to distribute      apply with particular force to the home. See Payton v. New
cocaine in violation of 21 U.S.C. § 846. On appeal, the              York, 445 U.S. 573, 590 (1980) (holding that the Framers
defendants argue the district court erred in denying their           drew “a firm line at the entrance to the house”). It is well
motions to suppress evidence because they claim the arresting        settled that warrantless searches of a home are unreasonable
officers illegally searched a residence in effecting their arrest.   unless supported by probable cause and exigent
The government contends that the defendants lack standing to         circumstances. See Pray v. City of Sandusky, 49 F.3d 1154,
challenge the search of the residence and that exigent               1158 (6th Cir. 1995); Wilson v. Strong, 156 F.3d 1131, 1134
circumstances justified the entry of the residence without a         (11th Cir. 1998); see also Welsh v. Wisconsin, 466 U.S. 740,
warrant. We AFFIRM.                                                  750 (1984) (“Before agents of the government may invade the
                                                                     sanctity of the home, the burden is on the government to
                     I. BACKGROUND                                   demonstrate exigent circumstances that overcome the
  On August 4, 1997, Pollard and Rodriguez were arrested             presumption of unreasonableness that attaches to all
while selling cocaine to a confidential informant and                warrantless home entries.”).
undercover police officer. The arrests occurred in Memphis,            We have recognized the existence of the following three
Tennessee, at a residence rented to Irma Howard, who lived           exigent circumstances: 1) when officers are in hot pursuit of
there with her cousin, her son and two grandchildren. She            a fleeing suspect; 2) when the suspect represents an
had known Pollard about six or seven years, and he                   immediate threat to the arresting officers or the public; or 3)
occasionally spent the night there, sleeping on the couch in         when immediate police action is necessary to prevent the
the living room. Pollard kept personal belongings in a closet        destruction of vital evidence or to thwart the escape of known
in the living room but did not know how to open the door             criminals. See O’Brien v. City of Grand Rapids, 23 F.3d 990,
10   United States v. Pollard, et al.     Nos. 98-5908/6118      Nos. 98-5908/6118            United States v. Pollard, et al.           3

  Although the court found Howard consented to the search,       without a key.1 Howard did not know Rodriguez before the
we need not decide that question in light of finding there was   night in question, when Pollard brought him to the house.
a “consent once removed.”
                                                                   Before the arrests, on July 31, officers learned that a
  AFFIRMED.                                                      shipment of drugs was en route to Memphis. On August 4,
                                                                 the informant told Officer Anthony Berryhill that Pollard had
                                                                 contacted him, told him that his source of cocaine had arrived
                                                                 in Memphis from Texas, and arranged to meet him.
                                                                   At approximately 8:00 p.m., on August 4, the informant
                                                                 met Pollard and Rodriguez at Howard’s residence. Rodriguez
                                                                 wrote down the price ($76,500) and the amount (4 kilograms)
                                                                 and told the informant he needed to be back by 10:00 p.m.
                                                                 because Rodriguez was leaving Memphis.
                                                                   The informant returned to Officer Berryhill’s office and
                                                                 gave him the piece of paper. Berryhill wired the informant,
                                                                 assembled a team of officers, and gathered $50,000 in
                                                                 purchase money for the drugs. A “takedown” signal was
                                                                 established. During these preparations, the informant was
                                                                 paged at least twice and returned the calls to tell the sellers he
                                                                 was coming.
                                                                   Between 11:00 p.m. and 11:30 p.m., approximately six
                                                                 officers and the informant returned to the residence. The
                                                                 back-up officers were monitoring the transmitter on the
                                                                 informant.
                                                                   The informant and Detective Rodney Askew, who was
                                                                 acting undercover, approached the house and knocked on the
                                                                 door. Pollard admitted them. Rodriguez immediately left by
                                                                 the front door and returned a few seconds later with a duffle
                                                                 bag. Howard then told Pollard to lock the door; Pollard led
                                                                 them to a back bedroom and Howard switched on the light
                                                                 and left. Rodriguez placed the duffle bag on top of the bed,


                                                                     1
                                                                       Since the original key had been lost, Howard would lock the house
                                                                 from the inside and return by means of a “little trick lock on the wrought
                                                                 iron door” or she would have one of the grandchildren go through the
                                                                 wrought iron bars and take out a window screen.
4    United States v. Pollard, et al.     Nos. 98-5908/6118      Nos. 98-5908/6118       United States v. Pollard, et al.     9

opened it, removed some clothes and pulled out three bundles     been, is being or will be committed,” Sangineto-Miranda, 859
wrapped in plastic. He began to unwrap one of the bundles.       F.2d at 1507, Askew could have arrested both Pollard and
The takedown signal was given before Rodriguez finished          Rodriguez had he chosen to do so.
unwrapping the bundles.
                                                                   Instead, Askew relied upon the back-up officers to effect
   The back-up officers, without knocking or announcing          the arrest. The government argues that this court should
themselves, broke down the front door, entered and said          adopt the doctrine of “consent once removed,” which requires
“police, get down.”         They entered without a prior         the following:
announcement to avoid the risk that the undercover officer
(the “new” face in the transaction) would be taken hostage or      The undercover agent or informant: 1) entered at the
injured by gunfire. Howard and her cousin were in the front        express invitation of someone with authority to consent;
of the house. Some officers stayed in the front of the house       2) at that point established the existence of probable
while others went toward the back. One officer forced his          cause to effectuate an arrest or search; and 3)
way into the locked bedroom where Pollard, Rodriguez, the          immediately summoned help from other officers.
informant and Askew were gathered. Rodriguez jumped into
a closet and Pollard ran into a nearby bathroom. The officers    United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995);
arrested everyone in the room and took them into the living      accord United States v. Bramble, 103 F.3d 1475, 1478 (9th
room for questioning.                                            Cir. 1996). In United States v. Ogbuh, 982 F.2d 1000 (6th
                                                                 Cir. 1993), this court considered this argument based on the
  No threats were made to Askew or the informant. Before         decision in United States v. Paul, 808 F.2d 645 (7th Cir.
the officers entered the house, there were no indications that   1986). We held that “assuming without deciding that Paul is
Pollard or Rodriguez was planning to destroy the drugs.          correctly decided,” the case before us was distinguishable
                                                                 because the contraband had been brought by the informant
  Howard signed a consent to search form. Although she           and the agents entered without receiving a signal from the
testified that the drugs had already been removed from the       informant. Ogbuh, 982 F.2d at 1005.
bedroom by the time she signed the form, Askew testified that
no evidence had been retrieved from the bedroom prior to the       We adopt the doctrine of “consent once removed” because
consent to search. After Howard had signed the form, Askew       this entry was lawful under those circumstances. Pollard
observed one bundle in the closet and one bundle halfway         admitted the undercover officer and informant in Howard’s
under the bed.                                                   presence; the officer obtained probable cause for an arrest
                                                                 when Rodriguez displayed the cocaine on the bed; and the
   In 1997, Magistrate Judge James H. Allen filed his            informant accompanying the officer immediately summoned
Recommendation. He found that while Rodriguez had no             the other officers for assistance. Moreover, the back-up
standing to contest the entry and search, Pollard had a          officers were acting within constitutional limits when they
reasonable expectation of privacy in the Howard home and         entered to assist him since no further invasion of privacy was
thus had standing to contest the search. But the magistrate      involved once the undercover officer made the initial entry.
reasoned that the question of “exigent circumstances” was
controlling.
  The district court adopted the magistrate’s findings of fact
and conclusions of law in part. But the court determined that
8       United States v. Pollard, et al.          Nos. 98-5908/6118           Nos. 98-5908/6118           United States v. Pollard, et al.          5

                 III. LEGALITY OF ENTRY                                       neither defendant had standing to contest the search, because
                                                                              Pollard “was, at most, a casual visitor.” It further concluded
  We review the district court’s factual determination that                   that there were exigent circumstances to justify the entry
there were exigent circumstances for clear error, while the                   without a warrant, because the drug sale was being transacted
lower court’s legal conclusions with respect to exigency are                  at the time the officers entered, an undercover detective and
reviewed de novo. See United States v. Gaitan-Acevedo, 148                    an informant were possibly in danger and the drugs may have
F.3d 577, 585 (6th Cir. 1998). In addition, this court must                   been destroyed by a further delay. Therefore, it denied the
review the evidence in the light most likely to support the                   motions to suppress.
district court’s conclusion. See United States v. Bates, 84
F.3d 790, 794 (6th Cir. 1996). The government bears the                         Later, Pollard and Rodriguez entered guilty pleas to the
burden of proving exigent circumstances exist. See Roark, 36                  conspiracy charge. Each was sentenced to seventy months
F.3d at 17.                                                                   imprisonment.
  It is undisputed that the officers did not identify themselves                II. STANDING OF POLLARD AND RODRIGUEZ
prior to entry. The defendants argue there was no exigency
justifying the forced entry because they did not suspect that                    When ruling on a motion to suppress evidence, this court
their guests were working with the police. The district court                 reviews the district court’s factual findings for clear error and
found that “once the undercover officer had probable cause                    its legal conclusions de novo. See United States v. Roark, 36
for the arrest, the raid team was clearly acting within                       F.3d 14, 16 (6th Cir. 1994). Similarly, the trial judge’s
Constitutional limits when they entered to assist him.”                       findings of fact regarding the defendants’ standing to
                                                                              challenge alleged Fourth Amendment violations are examined
  Under normal circumstances, the police are required to                      for clear error, while the legal determination of standing is
knock on the door, announce their presence and await                          reviewed de novo. See United States v. Rohrig, 98 F.3d 1506,
admittance for a reasonable time before forcibly entering a                   1511 (6th Cir. 1996).
residence. See Wilson v. Arkansas, 514 U.S. 927, 929 (1995).
However, it is well established that an undercover officer may                   “[I]n determining whether a defendant is able to show the
gain entrance by misrepresenting his identity and may gather                  violation of his (and not someone else’s) Fourth Amendment
evidence while there. See Lewis v. United States, 385 U.S.                    rights, the ‘definition of those rights is more properly placed
206 (1966); United States v. Baldwin, 621 F.2d 251, 252-53                    within the purview of substantive Fourth Amendment law
(6th Cir. 1980). Askew, the undercover officer, entered the                   than within that of standing.’” Minnesota v. Carter, 119 S.
apartment at the invitation of Pollard and established the                    Ct. 469, 472 (1998) (quoting Rakas v. Illinois, 439 U.S. 128,
existence of probable cause to arrest  when he saw Rodriguez                  140 (1978)).2 Thus, to determine whether the defendants can
pull out the three drug containers.4 As a warrantless arrest “is              claim that their Fourth Amendment rights were violated when
justified if, at the time of the defendant’s arrest, police
officers have probable cause to believe that an offense has
                                                                                  2
                                                                                    In Rakas, 439 U.S. at 143 n.12, the Supreme Court stated that not
    4                                                                         all expectations of privacy will be considered “legitimate” for purposes
      Citing the First Circuit’s decision in United States v. Santiago, 828   of Fourth Amendment protection: “[l]egitimation of expectations of
F. 2d 866 (1st Cir. 1987), the government contends that probable cause        privacy by law must have a source outside of the Fourth Amendment,
did not exist before the cocaine was displayed and hence the officers         either by reference to concepts of real or personal property law or to
could not have obtained a warrant prior to the undercover transaction.        understandings that are recognized and permitted by society.” Id.
6     United States v. Pollard, et al.    Nos. 98-5908/6118      Nos. 98-5908/6118            United States v. Pollard, et al.          7

officers entered the residence, this court must decide whether   obviously somewhere in between.” Id. at 474. The Carter
Pollard and Rodriguez had “an expectation of privacy in the      Court concluded that defendants were not overnight guests,
place searched, and whether [their] expectation[s were]          were only in the home a few hours, had no previous
reasonable.” Carter, 119 S. Ct. at 469. A defendant must         relationship with the3 lessee, and the purpose of their visit was
satisfy a two-pronged test to show a legitimate expectation of   purely commercial. Id. at 493. Thus, the defendants had no
privacy: 1) he must manifest an actual, subjective expectation   legitimate expectation of privacy for their activities and could
of privacy; and 2) that expectation is one that society is       not contest the search.
prepared to recognize as legitimate. See Sangineto-Miranda,
859 F.2d at 1510.                                                   Pollard has standing to contest the search. He had been
                                                                 friends for approximately seven years with the lessee,
    A. Standing of Pollard                                       Howard, and had been staying at the home earlier in the week.
                                                                 Furthermore, Pollard occasionally spent the night at the
   On appeal, Pollard argues he had a legitimate expectation     residence and kept some personal belongings in a closet in the
of privacy in Howard’s home under Minnesota v. Olson, 495        living room. In addition, he sometimes ate meals with the
U.S. 91 (1990). The government argues that Pollard fails to      family during his visits. Finally, although Pollard did not
meet the “heightened” burden under Carter, 119 S. Ct. at 469,    know the makeshift method to open the door, he was allowed
for a defendant claiming a reasonable expectation of privacy     to stay in the home even if the residents were not present.
in a dwelling other than his own home, where the defendant’s
presence is for an illegal commercial or business purpose.         B. Standing of Rodriguez
See United States v. Gordon, 168 F.3d 1222, 1226 (10th Cir.
1999). The government contends that Pollard lacks standing         Rodriguez argues the district court erred in failing to
because he used the Howard home as a convenient site for         recognize his legitimate privacy expectation in the Howard
himself and Rodriguez to meet the customer to complete an        residence, manifested by his presence in the locked bedroom.
illegal sale of cocaine.                                         The district court found that Rodriguez was a “mere visitor”
                                                                 and had no standing to challenge the search.
  In Olson, 495 U.S. at 98, the Supreme Court held that an
overnight guest had a legitimate expectation of privacy in his     We agree that Rodriguez has no standing to contest the
host’s home and thus could challenge officers’ warrantless       search, because he had never been to the premises before and
entry into the home to arrest him. The Olson court recognized    did not know the renter of the premises. Further, when
that “[s]taying overnight in another’s home is a longstanding    Rodriguez came to the house he did not bring any personal
social custom that serves functions recognized as valuable by    possessions or luggage. Finally, he stated he planned to leave
society.” Id. But more recently, in Carter, 119 S. Ct. at 473-   immediately after the cocaine sale and catch a plane back to
74, the Court held that defendants who were in another’s         his home state of Texas. See Carter, 119 S. Ct. at 469.
apartment solely for the purpose of packaging cocaine had no
legitimate expectation of privacy because they failed to
demonstrate they were guests on the premises for a personal          3
occasion, rather than for strictly business purposes. The              The Court explained that an individual’s expectation of privacy in
Court determined that the overnight guest in Olson and           commercial premises is “‘different from, and indeed less than, a similar
                                                                 expectation in an individual’s home.’” Id. at 474 (quoting New York v.
someone legitimately on the premises represented different       Burger, 482 U.S. 691, 700 (1987)). The Court found that, although the
ends of the privacy spectrum, and that “the present case is      apartment was a dwelling place, for the defendants it was “simply a place
                                                                 to do business.” Id.
