                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 26 2004
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 03-8005
                                                         (D. Wyo.)
 DAVID ZOGMAISTER,                                      02-CR-134-B

          Defendant-Appellant.


                                ORDER AND JUDGMENT       *




Before BRISCOE, LUCERO,            and McWILLIAMS, Circuit Judges.



      David Zogmaister appeals the district court’s denial of his motion to

suppress the drugs found by police in his motel room. Zogmaister entered a

conditional guilty plea to a charge of firearm possession in furtherance of drug

trafficking in violation of 18 U.S.C. § 924(c), preserving his right to appeal the

district court’s denial of his motion to suppress. On appeal, we consider whether

the government has met its burden of demonstrating that exigent circumstances



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
justified the warrantless search of Zogmaister’s motel room. We REVERSE.

                                         I

      In December 2001, agents with the Wyoming Division of Criminal

Investigation (“DCI”) received information from confidential informants that

Zogmaister had been traveling to Rock Springs, Wyoming for the past several

months to sell methamphetamine. Based on that intelligence, DCI opened a

criminal investigation regarding Zogmaister’s possible drug dealing activities.

On February 5, 2002, a confidential informant told DCI agents that Zogmaister

was staying in Room 219 at the Inn at Rock Springs, that the informant had been

in Room 219 with Zogmaister, and that the room contained methamphetamine,

heroin, and a firearm.

      Rather than pursue a warrant at that time, DCI Agent Craig Jackson and

Sweetwater County Deputy Sheriff John Elliot decided to go to the Inn at Rock

Springs; there they observed Zogmaister’s automobile parked in front of the

motel. A “for sale” sign in the automobile’s window listed Zogmaister’s

telephone number, and the officers hatched a plan to lure Zogmaister out of his

room to question him about his suspected drug activity. After a third officer, DCI

Agent Dennis Clamen, arrived at the scene, Agent Jackson called the listed

number, purportedly to inquire about the car; he spoke to a male who said he

would come out to discuss the matter. Minutes later, Nicole Ables, Zogmaister’s


                                        -2-
girlfriend, came out of Room 219 and approached Agent Jackson; he informed her

that he was a police officer, and that he needed to discuss an investigation with

Zogmaister. In response to the officers’ questions, Ables informed them that she

and Zogmaister had been staying in the motel for two days, and that there were no

firearms in the room.

      Following the brief questioning of Ables, the officers led her to the motel

room and told her to knock on the door. She did so, announcing that she was with

some detectives who wanted to speak to Zogmaister. Between thirty and forty-

five seconds elapsed, and Zogmaister opened the door, dressed in long underwear.

Ables hurriedly walked through the open door into the room and sat on the bed.

The officers followed her immediately, positioning themselves around the room.

At no point did the officers ask permission to enter the room, nor did Zogmaister

or Ables invite them. Describing their reasons for entering the room, Agent

Jackson explained:

      When [Ables] took off across [the room], the fact that the door was
      open, we just went ahead and entered. For officer safety reasons you’ve
      got to get out of that doorway. That is where the funnel of fire comes.
      If somebody starts a firefight as you are entering a room, from years of
      tactical experience, you want to get out of that doorway. That’s the
      fatal funnel. That’s where officers are killed at. We want to get in.

(3R. at 44–45.)

      After entering the room, Agent Jackson asked Zogmaister whether there

were any weapons in the room, and Zogmaister answered affirmatively. Agent

                                         -3-
Jackson retrieved the weapon and asked for permission to conduct a more

thorough search of the room. Zogmaister granted permission, and a search of the

room revealed syringes, a small amount of heroin, 2.25 ounces of

methamphetamine, drug paraphernalia, $3,700 in cash, and two stolen revolvers.

Zogmaister filed a motion to suppress the evidence uncovered in the search of the

motel room, arguing that the search violated his Fourth Amendment right to be

free from unreasonable searches and seizures.

      In denying Zogmaister’s motion to suppress on November 22, 2002, the

district court initially based its decision on two conclusions: (1) that Zogmaister

lacked a reasonable expectation of privacy, and thus the Fourth Amendment

provided him no protection; and (2) that even if Zogmaister had a reasonable

expectation of privacy, he consented to the search. On December 13, 2002, the

government requested that the district court provide additional factual findings on

the subject of exigent circumstances. Specifically, the government requested that

the district court find “that Ms. Ables’ unexpected entry into the motel room,

where the agents had reason to believe narcotics and guns were stored, created an

exigent circumstance necessitating the officers warrantless entry into the room to

ensure their safety.” (1R. at 38.) The district court complied with the

government’s request in an order issued the same day, adopting verbatim the

language suggested by the government and thus finding that exigent


                                         -4-
circumstances justified the government’s warrantless search of the motel room.

      On appeal, the government concedes that Zogmaister had a reasonable

expectation of privacy in his motel room. We accept the concession. The

government also concedes, and we agree, that the police lacked consent to enter

the motel room. Therefore, the sole contested issue on appeal is whether exigent

circumstances justified the government’s warrantless search of Zogmaister’s

motel room. Because we conclude that the government has not met its burden of

demonstrating that exigent circumstances existed to enter the room, we

REVERSE.

                                         II

      In reviewing a denial of a motion to suppress, we are required to “accept

the trial court’s findings of fact unless they are clearly erroneous.” United States

v. Carr, 939 F.2d 1442, 1443 (10th Cir. 1991) (quotation omitted). Moreover,

“[a] trial court’s determinations which rest upon credibility and reasonable

inferences will not be set aside unless clearly erroneous.” Id. at 1448. We view

the evidence in the light most favorable to the government, id. at 1443, but “[t]he

ultimate determination of reasonableness under the Fourth Amendment

. . . is a question of law which we review de novo.” United States v. Ross, 920

F.2d 1530, 1533 (10th Cir. 1990) (quotation omitted).




                                         -5-
                                         A

      In support of the government’s concession of the issue, we note that it is

beyond dispute that individuals residing in motel rooms generally have a

reasonable expectation of privacy and thus receive Fourth Amendment protection.

Stoner v. California, 376 U.S. 483, 490 (1964). In nonetheless concluding that

Zogmaister lacked a privacy interest in the motel room in which he had been

staying, the district court relied on Minnesota v. Carter, 525 U.S. 83 (1998). In

that case, the Supreme Court imposed a heightened burden for demonstrating a

reasonable expectation of privacy when the defendant’s presence in the dwelling

was solely for a commercial purpose. Id. at 91; see also United States v. Gordon,

168 F.3d 1222, 1226 (10th Cir. 1999) (applying Carter).

      We conclude that Carter is inapplicable to this case. In Carter, the

defendant was in a rented apartment for two and one half hours for the exclusive

purpose of packing cocaine; moreover, the Supreme Court specifically noted that

Carter had not stayed overnight. Carter, 525 U.S. at 90. Thus, Carter provides an

exception to the general expectation of privacy when a defendant’s presence in a

room is solely for commercial purposes; as the government now concedes, 1 that is



      1
        In its brief, the government states: “A thorough review of the record
indicates that the Defendant was a social guest in the motel room at the time the
agents entered the room, and therefore had a reasonable expectation of privacy in
the room.” (Aplt. Br. at 11.)

                                        -6-
not the case here. To the contrary, the record reflects that Zogmaister had been

residing in the motel room in question for two days. 2

      Because it is clear from the record that Zogmaister’s presence in the room

was not purely commercial, we hold that Zogmaister had a reasonable expectation

of privacy under the Fourth Amendment. Having arrived at that conclusion, we

proceed to analyze whether the government has demonstrated the existence of an

exception to overcome the general presumption that warrantless searches are

unreasonable under the Fourth Amendment.

                                          B

      A warrantless search is presumptively unreasonable under the Fourth

Amendment unless the government can demonstrate the existence of an exception;

indeed, “the most basic constitutional rule in the search and seizure area is that

exceptions to the warrant requirement must be specifically established, well

delineated, and jealously and carefully drawn.” United States v. Aquino, 836

F.2d 1268, 1270 (10th Cir. 1988) (quotations omitted). Consent represents one

exception to the Fourth Amendment’s warrant requirement. United States v.

Pena-Sarabia, 297 F.3d 983, 986 (10th Cir. 2002). As a result, if Zogmaister or



      2
         At the motion to suppress hearing, Agent Jackson was asked, “you don’t
dispute that Mr. Zogmaister had been staying in that room for at least a day or
two?” Agent Jackson replied, “[t]hat’s correct. We later substantially verified
that.” (3R. at 34.)

                                         -7-
Ables consented to the officers’ entry into the motel room, no violation would

have occurred.

      In addition to finding initially that Zogmaister lacked a reasonable

expectation of privacy, the district court found that Ables consented to the search.

Given the government’s concession that the officers lacked consent to enter the

room, 3 and our review of the record, we are persuaded that the district court erred

on this point. Because we also conclude that the government did not have consent

to enter Zogmaister’s motel room, we are now faced with the interesting prospect

of a three-legged stool standing on but one leg. We examine this sole source of

support and the only contested issue—whether the government’s warrantless entry

was justified by exigent circumstances.

      Exigent circumstances may justify warrantless searches when: (1) there is

probable cause for the search or seizure, and the evidence is in imminent danger

of destruction, Cupp v. Murphy, 412 U.S. 291, 294–96 (1973); (2) the safety of

law enforcement or the general public is threatened, Warden v. Hayden, 387 U.S.

294, 298–99 (1967); (3) the police are in “hot pursuit” of a suspect, United States

v. Santana, 427 U.S. 38, 42–43 (1976); or (4) the suspect is likely to flee before

the officer can obtain a warrant, Minnesota v. Olson, 495 U.S. 91, 100 (1990). In


      3
        In its brief, the government states, “the Government does not believe that
the record supports a conclusion that the Defendant impliedly consented to the
officers’ entry into the room.” (Aplt. Br at 11.)

                                          -8-
the instant case, the government contends that its warrantless intrusion into

Zogmaister’s motel room was justified by exigent circumstances—more

specifically, that the safety of Agents Clamen, Jackson, and Elliot was threatened.

      While we recognize that concerns for officer safety sometimes may produce

exigent circumstances that justify a warrantless search, it is the government’s

burden to demonstrate the presence of those exigencies. United States v. Maez,

872 F.2d 1444, 1452 (10th Cir. 1989). In determining whether the government

has met its burden, we “evaluate the circumstances as they would have appeared

to prudent, cautious and trained officers.” United States v. Cuaron, 700 F.2d 582,

586 (10th Cir. 1983) (quotations omitted).

      There is “no absolute test for the presence of exigent circumstances,”

United States v. Justice, 835 F.2d 1310, 1312 (10th Cir. 1987) (quotation

omitted); however, we have provided a general framework for analyzing this type

of exigent circumstances claim:

      The basic aspects of the “exigent circumstances” exception are that (1)
      the law enforcement officers must have reasonable grounds to believe
      that there is immediate need to protect their lives or others or their
      property or that of others, (2) the search must not be motivated by an
      intent to arrest and seize evidence, and (3) there must be some
      reasonable basis, approaching probable cause, to associate an
      emergency with the area or place to be searched.

United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986). We also require that

a government assertion of exigent circumstances be “supported by clearly defined


                                         -9-
indicators of exigency that are not subject to police manipulation or abuse.”

Aquino, 836 F.2d at 1272 (emphasis added). 4

        The three requirements of United States v. Smith are conjunctive; that is to

say, the government has the burden of demonstrating each of them in order to

overcome the Fourth Amendment’s general presumption that warrantless searches

are unreasonable. Thus, the government initially must demonstrate that the

officers had reasonable grounds to believe that there was an immediate need to

protect their lives. To this end, the government points to the informant’s

testimony that there was a gun in the motel room, the fact that it took between

thirty and forty-five seconds for Zogmaister to open the door, and Ables’

purportedly sudden entrance into the motel room when Zogmaister opened the

door.

        Whether these factors in their totality are sufficient to satisfy the first

requirement of Smith presents a close question, but we note that we have

concluded previously in similar circumstances that concerns for officer safety

were not enough to justify a failure to knock and announce. 5 However, assuming


        Though Aquino addressed exigent circumstances in the context of
        4

evidence in imminent danger of destruction, we conclude that its rationale applies
equally to exigent circumstances in the context of concern for the safety of law
enforcement or the general public.

        In United States v. Stewart, 867 F.2d 581, 584–86 (10th Cir. 1989),
        5

officers cited safety concerns for their failure to knock and announce in executing
                                                                      (continued...)

                                           -10-
arguendo that it was reasonable for the officers to have perceived a generalized

danger, the second requirement of Smith creates an additional stumbling block for

the government. 6

      According to Smith, exigent circumstances can justify a warrantless search

only if the search is “not [] motivated by an intent to arrest and seize evidence.”

797 F.2d at 840. Without this requirement, the exigent circumstances exception

would constitute a substantial loophole in our Fourth Amendment jurisprudence.


      5
        (...continued)
their warrant; the officers in Stewart relied on testimony from a confidential
informant who had seen the defendant with a gun in the past. While we rejected
the officers’ justification in Stewart for several reasons, our explanation of what
might constitute a sufficient set of facts to justify exigent circumstances on the
basis of officer safety is instructive. Citing United States v. Spinelli, 848 F.2d 26
(2d Cir. 1988) as a “good example of a situation where an unannounced entry into
a home was justified due to the presence of exigent circumstances,” we pointed to
the following specific factors in that case: (1) that the officers were aware that the
defendant had a history and reputation of violence; (2) that the officers had
conducted a lengthy surveillance of the suspect; (3) that they were concerned that
the suspect had become aware of their surveillance; and (4) that flammable
liquids were at the scene, and the officers were concerned that the defendant
would cause an explosion given that he had become aware of their surveillance.
Stewart, 867 F.2d at 585–86. Notably, none of those circumstances were present
in Stewart, and neither are they present in the instant case. Zogmaister had no
violent convictions on his record. The officers’ surveillance was relatively short,
and they had no reason to think that Zogmaister was aware of it.



      6
        We do not address whether the government has met Smith’s third
requirement, that “there must be some reasonable basis, approaching probable
cause, to associate an emergency with the area or place to be searched.” Smith,
797 F.2d at 840.

                                         -11-
If the government could use the exigent circumstances exception to justify

warrantless searches when searches were motivated by an intent to seize evidence,

officers could conduct warrantless searches for drugs any time they had reason to

believe that the suspect possessed a gun or posed a potential danger. Thus, Smith

requires that a warrantless search not be motivated by an intent to search for

evidence.

      To this point, the officers claim in their depositions that when they

accompanied Ables to the motel room, their motivation was simply to speak to

Zogmaister outside of his room and had nothing to do with actually searching the

room. Of course, no direct evidence runs counter to the officer’s testimony; who

but the officers could attest to their motivation? Despite the absence of direct

evidence to impeach the officers’ stated motivations, however, we have grave

concerns about the government’s offer of proof on this issue.

      In our view, two sets of facts in the record militate against the officers’

assertions. First, it is undisputed that the officers suspected that the room

contained methamphetamine, and moreover, the officers testified that they

suspected Zogmaister of dealing the drugs. We consider it unlikely, given these

undisputed perceptions on the part of the officers, that the officers’ desire to

search the motel room for drugs did not influence their decision to enter the room.




                                         -12-
      In addition to this consideration, we are troubled by the officers’ decision

to follow Ables into the room given the other choices available to them at that

moment in time, any of which would have reduced the threat to their safety rather

than increasing it. Agent Jackson testified that when Ables entered the room, he

and the other officers followed her because the doorway represented a dangerous

funnel of fire. Certainly, that characterization of the doorway made it an area to

be avoided at all costs. However, the record reflects that when Ables entered the

room, the officers were not in the doorway at all. Instead, when Ables entered,

the officers were standing to the side of the door; in their depositions, the officers

specifically testified that in their positions to the side of the door, they were

“protected . . . by [the] walls”—out of the funnel of fire. (3R. at 45.) Thus, even

if we assume that the officers reasonably perceived the doorway to be a dangerous

funnel of fire, Ables’ entrance into the room put them in no immediate danger.

      In fact, the officers had options, each of which would have kept them out of

the perceived danger and each of which was less dangerous than the action they

ultimately took. Prudence suggests that to avoid the funnel of fire apparently

represented by the doorway, a course other than entry into that doorway would

have been wise. Other choices were certainly available; the officers could have

chosen to obtain a search warrant. Having elected not to do so in the first

instance, they could have remained outside of the room and asked Zogmaister to


                                          -13-
speak with them in the hallway. Instead, the officers chose to enter the room and

thereby apparently increase their immediate danger. Thus, the result of the

officers’ action of following Ables into the room without a warrant was not the

avoidance of a reasonably perceived danger, but rather the exacerbation thereof.

      Despite abundant evidence indirectly suggesting that the officers’ actual

reason for entering the motel room was ultimately to search the room for the

drugs they thought it contained, we are hard-pressed to draw such a conclusion

absent direct testimony by the officers themselves. We recognize that such

problems of proof might be endemic to Smith’s second requirement given that it

mandates an inquiry into the officers’ specific motivations. Those problems in

mind, we look to Aquino, which requires that exigent circumstances be

“supported by clearly defined indicators of exigency that are not subject to police

manipulation or abuse.” 836 F.2d at 1272 (emphasis added).

      Much like the second prong of Smith, the requirement that the government

not create its own exigency stems from our concern “that the police not be placed

in a situation where they can create the exception, because well-meaning police

officers may exploit such opportunities without sufficient regard for the privacy

interests of the individuals involved.” Id.; see also United States v. Mikulski, 317

F.3d 1228, 1233 (10th Cir. 2003) (counseling against the “manufacture of

exigencies”); United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir. 1984)


                                        -14-
(noting that in the context of a warrantless arrest, “police officials . . . are not free

to create exigent circumstances to justify their warrantless intrusions”); United

States v. Allard, 600 F.2d 1301, 1304 n.2 (9th Cir. 1979) (“If exigent

circumstances were created, they resulted from the agent’s own conduct”).

Though motivated by the same concerns as Smith’s second prong, the requirement

in Aquino is more helpful to us in cases like the one before us because it does not

require us to inquire into the officers’ motivations, a role better suited for the

fact-finder. Rather, the Aquino requirement allows us to evaluate the objective

evidence and simply determine whether the indicators of exigency were subject to

police manipulation or abuse.

      In the instant case, we conclude that even if the officers reasonably

perceived that they were in danger, they improperly created their own exigency.

From the time they called Zogmaister feigning interest in his car, the officers

entirely controlled the action. Once Ables came down to see them in response to

their call, the officers walked her back to the motel room, directed her to knock,

and did not prevent her from entering the room. The officers’ course of action

represents a clear example of the government creating its own exigency and thus

attempting to circumvent the Fourth Amendment’s requirements.

      Indeed, “[t]he Fourth Amendment guards against such ‘bootstrap’

arguments serving as a basis for the warrantless search of a person’s home.”


                                           -15-
United States v. Anderson, 981 F.2d 1560, 1568 (10th Cir. 1992). Therefore, we

conclude that the government has failed to satisfy its burden of demonstrating that

exigent circumstances justified the officers’ warrantless entry into Zogmaister’s

motel room.

                                        III

      Accordingly, we REVERSE.

      Judge McWilliams dissents.



                                               Entered for the Court



                                               Carlos F. Lucero
                                               Circuit Judge




                                        -16-
No. 03-8005, United States v. Zogmaister

BRISCOE, Circuit Judge, concurring:

      I concur in the result but I reach that result by a different route. Judge

Lucero concludes the officers “did not prevent [Ables] from entering the room”

and thus created their own exigency in an attempt to circumvent the Fourth

Amendment. Op. at 15. However, the district court found the officers did not

expect Ables to enter the motel room. Specifically, the district court described

her entry as “unexpected.” ROA, Vol. I, Doc. 39. That factual finding is subject

to review only for clear error. See United States v. Scroger, 98 F.3d 1256, 1260

(10th Cir. 1996) (applying clear error standard of review to district court's

determination that officers “did not manipulate or abuse the circumstances” to

create the exigency); United States v. Carr, 939 F.2d 1442, 1448-49 (10th Cir.

1991) (applying clear error standard of review to district court's finding that,

although exigency was foreseeable, critical factors creating exigency were not

subject to police manipulation or abuse). Because I cannot conclude the district

court's finding was clearly erroneous, I do not agree that the officers created an

exigency by not preventing Ables’ entry. Rather, I conclude the officers’

subsequent entry into the room was not justified by the safety concerns urged by

the government.

      The “existence of exigent circumstances is a mixed question of law and

fact.” United States v. Davis, 290 F.3d 1239, 1241 (10th Cir. 2002). The district
court’s factual findings are accepted unless they are clearly erroneous, but “the

determination whether those facts satisfy the legal test of exigency is subject to de

novo review.” United States v. Flowers, 336 F.3d 1222, 1228 (10th Cir. 2003).

When the purported exigency concerns police officer safety, one basic aspect of

the exigent circumstances exception is that “officers must have reasonable

grounds to believe that there is immediate need to protect their lives.” United

States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986) (emphasis added). Here, the

facts as found by the district court do not establish that the officers had

reasonable grounds to believe there was an immediate need to enter the motel

room to protect their lives.

      The government argues that Ables’ unexpected entry into the motel room

created a dangerous situation which justified entry. See United States v. Aquino,

836 F.2d 1268, 1271 (10th Cir. 1988) (stating that “[w]hen police seek to enter a

home without a warrant, the government bears the burden of proving that

sufficient exigency exists”). The government contends it would have been

“dangerous, if not downright foolhardy” for the officers to remain outside the

room “not knowing where Ms. Ables was going or what she [was] going to do

once she got there.” Aple. Br. at 15. However, there is no evidence in the record

that the officers had reason to believe Ables was violent or willing to use a gun or

that the officers had to enter the room as a result. Zogmaister was wearing long


                                          -2-
underwear and was not carrying a gun when he answered the door. Neither

Zogmaister nor Ables made any threatening gesture. Although a confidential

informant had told officers there was a gun in the motel room, there was no

evidence presented at the suppression hearing regarding the informant’s

background or history of reliability as an informant. See United States v. Avery,

295 F.3d 1158, 1167 (10th Cir. 2002) (criminal history and history of reliability

as informant are two factors to be considered in determining whether probable

cause is established). Moreover, there is no indication in the record that the

informant suggested that either Zogmaister or Ables was likely to use the gun if

confronted by police. I agree with Judge Lucero that it appears the officers safely

could have avoided the doorway (the so-called “funnel of fire”) instead of rushing

through it.




                                         -3-
