                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       July 26, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
 v.                                                      No. 06-7124
 CLONNIE ALONZO LAYM AN,                         (D.C. No. CR-06-11-01-JH)
                                                        (E.D. Okla.)
          Defendant-Appellant.


                                OR D ER AND JUDGM ENT *


Before TACH A, Chief Judge, ANDERSON and BALDOCK , Circuit Judges. **


      A federal jury convicted Defendant Clonnie Alonzo Layman on one count of

conspiracy to manufacture with intent to distribute methamphetamine in violation of

21 U.S.C. § 846; two counts of possession with intent to distribute methamphetamine

in violation of 21 U.S.C. § 841(a)(1); one count of attempt to manufacture

methamphetamine in violation of 21 U.S.C. § 846; one count of felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1); one count of possession of a


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G ). This case is therefore ordered submitted without oral argument.
firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1); and one count of possession of an unregistered firearm in violation of

26 U.S.C. § 5861(d).      The district court sentenced Defendant to 720 months

imprisonment.    Prior to trial, Defendant moved twice to suppress incriminating

evidence seized from his person, m obile home, and travel trailer. Defendant also

filed a motion to dismiss the indictment based on Double Jeopardy. The district

court denied the motions. Defendant now appeals. On appeal, Defendant argues (1)

the officers’ initial warrantless entry into his mobile home and travel trailer was

unreasonable; (2) the search warrant obtained by officers as a result of their initial

entry failed to describe with sufficient particularity the place to be searched; and (3)

previous state criminal charges coupled w ith a state in rem forfeiture action against

his property bar his subsequent federal criminal prosecution.             W e exercise

jurisdiction under 28 U.S.C. § 1291, and affirm.

                                           I.

      The relevant historical facts are taken from the transcript of the suppression

hearing and are consistent with the district court’s findings. The Cherokee County,

Oklahoma Sheriff’s Department received information from the Rogers County,

Oklahoma Sheriff’s Department that Bobby Dale Kelley had outstanding w arrants

for failure to appear on drug trafficking charges in Rogers C ounty. Rogers C ounty

indicated Kelley possibly was staying at a residence in Cherokee County located on

property owned by his father. On August 25, 2003, three Cherokee County officers

                                           2
and three Cherokee Nation M arshal Service agents w ent to the specified location in

south Cherokee County to arrest Kelley. The property was located in a heavily

wooded area, and the officers could not see the residence from the road. They split

into tw o groups, with one group approaching the residence from a dirt road and the

other from a utility easement.

      About thirty yards from the residence, the officers encountered an

overwhelming ammonia-type, chemical smell which they immediately associated

with the manufacture of methamphetamine. In a clearing, the officers came upon a

mobile home that appeared vacant, i.e. run down with broken windows, and a travel

trailer that appeared occupied.     N ear the trailer, paths appeared in the grass

apparently caused by people and vehicles coming to and from the trailer.          The

chemical smell grew stronger as the officers moved closer to the residence. They

could not determine if the overpowering smell originated from the mobile home or

travel trailer. They observed items outside the trailer and mobile home that indicated

the manufacture of methamphetamine, including several small burn piles often found

incident to a clandestine methamphetamine laboratory. According to the testimony

of Cherokee County Officer Brian Swim:




      Q:     Okay. As you approached the residence to serve this arrest
             warrant, did you encounter anything you found unusual?
      A:     Yes.

                                          3
       Q:     What w as that?
       A:     There was several items outside the residence that are related to
              manufacturing [of methamphetamine], and then there w as also an
              overw helm ing chem ical smell.

Based on the ammonia-type smell, the items outside the residence, and the officers’

experience and training, they suspected a meth lab was operating in the mobile home

or travel trailer.

       Officer Sw im explained the officers conducted an initial search of the travel

trailer because they feared someone inside might have been overcome by the

chemical fumes. Furthermore, they knew the toxic and volatile chemicals involved

in operating a meth lab could explode, thereby endangering both the officers

themselves and anyone inside the trailer or mobile home. The officers first knocked

on the travel trailer door, but received no answered. They tried to open the door, but

it was locked. They pulled on the door causing the lock to open. Inside they found

only a vacant trailer.

       Next, the officers knocked on the front door of the mobile home. W hen no one

answ ered, the officers tried the back door. On the back porch, the smell of ammonia

became even more overwhelming. At that point, the officers observed more items

associated with a meth lab. These items included a container with lithium strips

soaking in mineral spirit, a container with a cloudy liquid, and brass fittings on a

water cooler that appeared corroded by anhydrous ammonia. The officers entered

the m obile home through the back door and discovered a meth lab in plain view .



                                          4
They did not find anyone inside. The officers secured the premises, and obtained a

search warrant from the District Court of Cherokee County.              After obtaining

the search warrant, the officers searched the mobile hom e and travel trailer

thoroughly. In the mobile home, they found, in addition to the meth lab, containers

of anhydrous ammonia, lithium battery strips, pseudoephedrine packets, solvents, and

other chemicals necessary to manufacture m ethamphetamine. In the travel trailer,

the officers seized more incriminating evidence, namely, methamphetamine,

firearms, a “booby” trap, and drug paraphernalia, including scales and baggies. The

officers also found documents identifying and connecting Defendant to the travel

trailer.

       D uring execution of the state court search warrant, Defendant drove onto the

property. Because night had fallen, large halogen lights illuminated the search area.

At this point, the officers had not come into contact with Kelley, and were unsure

who was in the car. The officers lined the pathway and met Defendant with guns

drawn.     Sergeant Thompson of the Cherokee Nation M arshal Service ordered

Defendant out of his vehicle and asked him for identification. Defendant presented

his driver’s license, which linked him to the documents discovered in the travel

trailer. Sergeant Thompson performed a pat-down of Defendant. Defendant was

unarmed. The sergeant, however, located on D efendant a ball wrapped in blue shop

towels that proved to be approximately tw o ounces of methamphetamine.            The

indictment followed.

                                         5
      Defendant filed a motion to suppress the evidence seized from his person,

mobile home, and travel trailer. 1 In his motion, D efendant argued, among other

things, the w arrantless searches of his travel trailer and mobile home w ere

unreasonable in violation of the Fourth Amendment. The district judge referred the

motion to a magistrate judge for a report and recommendation (R& R). In a thorough

R& R, the magistrate judge concluded the officers’ initial warrantless entry into the

travel trailer and mobile home was lawful. The magistrate judge reasoned the strong

chemical smell and the officers’ observation of items outside the residence

comm only associated with a meth lab established exigent circumstances justifying

the officers’ warrantless entry to protect themselves and anyone inside. The district

court overruled Defendant’s objections to the R& R and adopted it in its entirety.

      Defendant next filed a motion to dismiss the indictment based on double

jeopardy. Defendant claimed the State of Oklahoma’s decision to dismiss state

criminal charges against him in exchange for his agreement to forfeit property in a

pending state in rem civil forfeiture proceeding barred his subsequent prosecution

in federal court. The district court concluded the Double Jeopardy Clause was not

implicated because in rem civil forfeitures do not constitute punishment. The district

court also concluded the doctrine of dual sovereignty precluded Defendant’s claim




      1
        Defendant also moved to suppress incriminating statements made at the
time of his arrest. The district court suppressed the statements. The Government
does not challenge that ruling on appeal.

                                          6
that the federal indictment was barred based on the state court prosecution.

Accordingly, the district court denied Defendant’s motion to dismiss on the basis of

double jeopardy.

      Finally, Defendant filed a second motion to suppress evidence seized during

the search. This time, Defendant argued the search warrant relied upon by the

officers did not sufficiently describe the location of the property to be searched in

violation of the Fourth Amendment’s particularity requirement. The district court

concluded no reasonable probability existed that another premises would be

mistakenly searched because the warrant contained specific descriptions of the

property and the executing officers had personal knowledge of the location of the

property.   Therefore, the district court denied Defendant’s second m otion to

suppress.

                                          II.

      Defendant first argues the district court erred in upholding the officers’ initial

warrantless entry by applying the exigent circumstances exception to the warrant

requirement. W e review the district court’s denial of the motion to suppress by

viewing the evidence in the light most favorable to the Government. See U nited

States v. G regoire, 425 F.3d 872, 875 (10th Cir. 2005). W e accept the district

court’s findings of historical fact unless clearly erroneous, and review its ultimate

determination of reasonableness de novo. Id.

      W arrantless searches and seizures inside a home are presumptively

                                           7
unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980); see also G roh v.

Ramirez, 540 U.S. 551, 559 (2004). Nevertheless, the warrant requirement is subject

to certain exceptions. See Brigham City v. Stuart, 126 S.Ct. 1943, 1947 (2006). W e

have previously recognized the exigent circumstances exception to a warrantless

entry “when the circumstances posed a significant risk to the safety of a police

officer or a third party.” United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006).

This exception applies if (1) the officers had an objectively reasonable basis to

believe an immediate need to enter existed to protect the safety of themselves or

others, and (2) the conduct of the entry was otherwise reasonable. See United States

v. W alker, 474 F.3d 1249, 1253 (10th Cir. 2007). The Government has the burden

of proving both prongs of the two-part test. Id.

      Under the first prong of the exigent circumstances exception to the warrant

requirement, we evaluate whether the officers had reasonable grounds to believe an

immediate need to enter existed “guided by the realities of the situation presented by

the record from the viewpoint of prudent, cautious, and trained officers.” Najar, 451

F.3d at 718-719 (internal quotations omitted). This inquiry is one of reasonable

belief. See id. at 719. Defendant’s argument in this regard is two-fold. First,

D efendant argues the officers, “faced with only the smell of ammonia emanating

from another nearby structure,” had no reason to believe this smell presented an

immediate danger. W e need not decide whether the smell of ammonia alone can give

rise to exigent circumstances because the totality of the circumstances in this case

                                          8
undoubtedly justified the officers’ initial warrantless entry into the mobile home and

trailer. See Najar, 451 F.3d at 720. The overwhelming chemical odor, coupled with

items outside the residence that indicated the manufacture of methamphetamine

provided sufficient evidence for the officers to reasonably believe a meth lab existed.

Based on the officers’ knowledge and training of the toxic chemicals involved, they

were justified in reasonably believing the meth lab could explode, thereby

endangering both themselves and others. See United States v. Rhiger, 315 F.3d

1283, 1289 (10th Cir. 2003) (dangers associated with suspected meth lab established

reasonable basis to justify officers’ w arrantless entry).

      Second, Defendant argues the officers had no basis for reasonably believing

a person was actually inside the trailer in need of immediate aid. Defendant cites

Brigham City, 126 S.Ct. at 1946, to support his argument. In that case, officers

responded to a 3 a.m. call about a loud party. Upon arriving at the house, they saw

four adults through a screen door and windows beating an endangered juvenile. Id.

Given this tumult, the Court held the officers’ warrantless entry was reasonable. Id.

at 1949. Brigham City is not dispositive. The exigent circumstances exception does

not require officers actually see someone inside in immediate danger, as long as they

have an objectively reasonable basis for believing that someone might be in danger,

including themselves. See Rhiger, 315 F.3d at 1289. Under the circumstances of

this case, the officers had enough evidence to reasonably believe that someone might

be inside and possibly overcome by fumes. The officers received information that

                                           9
Kelley, a wanted felon, was staying at the residence and paths in the grass indicated

someone had been staying there and could be inside. The strength of the chemical

smell further indicated that if someone w as inside, they might be unconscious or

incapacitated. Therefore, the officers’ were justified in entering the trailer and

mobile home to protect the safety of themselves and anyone inside.

      Having determined the officers had an objectively reasonable basis to enter,

the second prong of the test requires us to consider whether the manner and scope

of the search was reasonable. See Najar, 451 F.3d at 720. Upon discovering no one

inside the travel trailer, the officers exited without further investigation.   They

entered the mobile home from the back door, saw the meth lab in plain view, and

made sure no one inside was overcome by fumes. Once they determined the meth

lab was not operating and secured the premises, the officers immediately proceeded

to get a search warrant without further intrusion. W e agree with the district court

that both the manner and scope of the officers’ warrantless entry into the trailer and

mobile home w as reasonable.

      Defendant characterizes the officers’ initial warrantless entry into the trailer

and mobile home as a “protective sweep.” H e argues such initial sweep was illegal

because it was not incident to an arrest. W e agree that in this circuit a “protective

sweep” may take place only incident to an arrest. See W alker, 474 F.3d at 1254.

The “protective sweep” exception to the w arrant requirement, however, is not in play

here. This case deals only with the exigent circumstances exception to the warrant

                                         10
requirement. 2 As we just explained, this latter exception to the warrant requirement

justified the officers’ initial warrantless entry.

                                           III.

      Defendant next argues the search warrant did not describe the place to be

searched with sufficient particularity.      W e review the district court’s ultimate

determination of sufficient particularity de novo, and accept its factual findings

unless clearly erroneous. United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir.

1993). The search warrant described the location as follows:

      The residence and travel trailer to be searched may be located by
      beginning at the intersection of U.S. Highway 62 and State H ighway 82.
      At this intersection travel south on State Highway 82 for approximately
      fourteen and two-tenths (14.2) miles to the intersection of State
      H ighw ay 82 and a paved country road also known as Blue Top road. At
      this intersection turn left (east) onto Blue Top road and travel
      approximately one and one-tenths (1.1) miles to the intersection of Blue
      Top road and an unmarked private drive and travel approximately one-
      tenth (0.1) miles to the residence and the travel trailer to be searched.

Defendant argues this description is ambiguous because State Highway 62 and U.S.

Highway 82 intersect at two junctions, one on the east and the other on the south side

of town. Therefore, one of the junctions does not lead to the place to be searched.

      To determine if a search w arrant adequately describes the place to be searched,

the test is (1) whether the description is sufficient to enable the executing officer to



      2
        In the statement of facts section of the R& R, the magistrate judge
inartfully referred to the initial warrantless entry as a “protective search.”
Reading the R& R as a whole, the magistrate judge clearly meant this description
of the initial warrantless entry to apply in the exigent circumstances context.

                                           11
locate and identify the premises with reasonable effort, and (2) whether any

reasonable probability exists that another premises might be mistakenly searched.

See Harman v. Pollock, 446 F.3d 1069, 1078 (10th Cir. 2006). The inquiry depends

heavily on the facts of each case, as determined by practical accuracy rather than

technical precision, and necessarily differs for rural and urban areas. United States

v. D orrough, 927 F.2d 498, 500 (10th Cir. 1991). Applying the appropriate test, w e

agree with the district court that the search warrant in this case described the location

of the place to be searched with sufficient particularity.

      Defendant’s reliance on United States v. W illiamson, 1 F.3d 1134 (10th C ir.

1993), is misplaced. In W illiamson, we invalidated a search warrant, in which the

only physical description provided was a rural m ail box nine miles from the

premises. Id. at 1136. The description here w as much more specific. To begin, the

warrant identified the place to be searched as a “residence and travel trailer.” In

addition, the warrant accurately specifies “Blue Top road” first at its intersection

w ith State H ighway 82, and then at its intersection with an unmarked private

driveway leading to the “residence and travel trailer” to be searched. The district

court correctly relied on our recent decision of Harman to conclude the description

of the initial junction did not determine whether the location was sufficiently

described; rather, the search warrant must be evaluated as a whole. See Harman, 446

F.3d at 1078 (noting we have upheld warrants w here one part of the description is

inaccurate, but the description has other accurate information to identify the place

                                           12
to be searched with particularity). Furthermore, additional factors supported the

warrant’s descriptive sufficiency including the executing officers’ personal

knowledge of the location and the continued presence of officers at the location

while the search warrant was obtained. See id. at 1079.

      Simply put, no reasonable probability existed that another premises might be

mistakenly searched in this case because the warrant’s terms, when considered in

their entirety, could only lead to Defendant’s mobile home and travel trailer. See

Dorrough, 927 F.2d at 500-501 (warrant describing a red, white, and black mailbox

in the shape of a house at defendant’s home was a unique landmark that enabled

officers to locate the residence with reasonable effort). Even assuming the officers

started at the inappropriate junction of the two highways, they would not have

located “Blue Top road,” much less another “residence and travel trailer” matching

the rest of the warrant’s description. Accordingly, the district court did not err in

holding the search warrant was valid.

                                         IV.

      D efendant lastly argues the district court erred in denying his motion to

dismiss based on double jeopardy. A defendant has the burden of proving double

jeopardy. U nited States v. Trammell, 133 F.3d 1343, 1349 (10th Cir. 1998). W e

review the district court’s legal determination on a double jeopardy claim de novo.

Id. W e review the underlying factual findings for clear error. Id.

      In September 2003, the State of Oklahoma charged Defendant in state district

                                         13
court with trafficking illegal drugs and manufacturing a controlled dangerous

substance. On the same day, the State filed a Notice of Seizure and Forfeiture in

state district court alerting Defendant that the State intended to forfeit certain items

of his personal property pursuant to Oklahoma’s civil forfeiture provision, 63 Okla.

Stat. § 2-501.       In M arch 2004, the State dismissed the drug charges against

Defendant. In M ay 2004, a Journal Entry of Judgment and Forfeiture dated M arch

2004 appears forfeiting the personal property listed in the forfeiture proceeding.

Defendant apparently agreed to forfeit his property in exchange for the dismissal of

the state charges.

      Defendant asserts he is now being prosecuted and punished twice for the same

conduct in violation of the Double Jeopardy Clause. U.S. Const. amend. V. The

Double Jeopardy Clause consists of three distinct constitutional protections:

successive prosecutions for the same offense after acquittal, successive prosecutions

for the same offense after conviction, and multiple criminal punishments for the

same offense. See M onge v. California, 524 U.S. 721, 727-728 (1998). The third

protection, which is in issue here, “prohibits the Government from punishing twice,

or attempting a second time to punish criminally for the same offense.” U nited

States v. Ursery, 518 U.S. 267, 273 (1996). A prior state prosecution does not bar

a subsequent federal prosecution for the same conduct. Abbate v. United States, 359

U .S. 187, 194 (1959). The premise of this dual sovereignty doctrine is “that the law s

of separate sovereigns are indeed separate and that one act m ay violate the laws of

                                          14
each; accordingly, prosecution by each cannot be for the same offense and double

jeopardy concerns are not implicated.” United States v. Raymer, 941 F.2d 1031,

1037 (10th C ir. 1991). A possible, yet limited, exception may exist where one

sovereign is acting as “merely a tool” of the other to bring a second prosecution that

is a “sham and cover” for a prosecution that otherwise would be barred. Bartkus v.

Illinois, 359 U.S. 121, 123-124 (1959); see also Trammell, 133 F.3d at 1350 (noting

this exception has been discussed, but never applied by the Tenth Circuit).

      As the district court recognized, Defendant’s double jeopardy claim fails for

a number of reasons. First, in rem civil forfeitures do not implicate the Double

Jeopardy Clause because they do not constitute punishment. Ursery, 518 U.S. at

270-271. Therefore, Defendant’s punishment resulting from the federal prosecution

is permissible. Second, Defendant’s argum ent fails because the dual sovereignty

doctrine applies. See Raymer, 941 F.2d at 1037-1038. The crux of D efendant’s

argum ent is that because the Cherokee M arshal Service, a federal agency, assisted

in the investigation which resulted in Defendant’s state prosecution, the deal

Defendant made in state court precludes his federal prosecution.            Defendant,

however, presents nothing to suggest the Cherokee M arshal Service manipulated the

investigation or the federal prosecution w as a “sham and a cover” for an otherwise

impermissible prosecution. Trammell, 133 F.3d at 1350. “W hen a defendant claims

that federal and state officials are not acting as dual sovereigns, he has a substantial

burden of proving one sovereign is so dominated by the actions of the other that the

                                          15
former is not acting of its own volition.” Raymer, 941 F.2d at 1037. Defendant

simply has not met his burden of showing the Double Jeopardy Clause is implicated

by his federal prosecution. See Trammell, 133 F.3d at 1350 (defendant does not

satisfy this burden by “merely showing the state has conducted the majority of the

investigation relied upon by the government in [his] federal prosecution”).

      Furthermore, we have previously held the dual sovereignty doctrine controlled

in cases where the double jeopardy circumstances were far more compelling than

those in the present case. See United States v. Padilla, 589 F.2d 481, 484 (10th Cir.

1978) (dual sovereignty doctrine permitted subsequent federal prosecution following

state prosecution on the same conduct where the same attorney represented both the

state and the United States in the two prosecutions against defendant). Therefore,

Defendant’s federal prosecution did not violate the Double Jeopardy C lause.

      The judgment of the district court is

      A FFIR ME D.

                                       Entered for the Court,



                                       Bobby R. Baldock
                                       Circuit Judge




                                         16
