                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2642
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  James P. Roberts

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                           Submitted: February 10, 2016
                               Filed: June 8, 2016
                                 ____________

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       Police officers accidentally knocked open James Roberts’s apartment door
while looking for a potentially dangerous homicide suspect. Rather than stand in the
open doorway as easy targets, the officers entered the apartment. They found a
loaded handgun, some marijuana, and Roberts, who said something suggesting the
gun was his. Roberts was convicted of possessing the gun as a felon. See 18 U.S.C.
§ 922(g)(1). He appeals, arguing the district court1 should have suppressed the
evidence from the apartment. We disagree.

       The police had traced a cell phone they thought belonged to a suspect in a
deadly shooting the day before and identified an apartment in Kansas City, Missouri.
The suspect, they had been told, may have been named James. While the officers
were watching the apartment, a man exited the apartment. Two detectives
approached and one asked the man what he was doing there. The man said he was
visiting his friend James. The detective smelled marijuana and thought the man might
be high.2

        The police decided to talk to the identified James. When an officer knocked
on the door—a hard “police knock”—and announced “police officers,” the door
swung open.3 James Roberts was sitting on a couch just inside the door. The police
smelled marijuana and saw something green and leafy smoldering in an ashtray
nearby. One officer thought Roberts looked “befuddled” and might have been high.
Another thought Roberts looked “scared” and nervous, “almost as if he’s going to
flee, like I don’t know what I’m going to do here.” Both officers thought Roberts
might be the shooter they were looking for and were afraid for their safety while



      1
       The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable Sarah
W. Hays, United States Magistrate Judge for the Western District of Missouri.
      2
       The detective also thought it strange the man was sweating despite the seven-
degree cold weather, though we note the man had just come from indoors, where it
was presumably warmer.
      3
        An important factor in our review is the district court did not discredit the
officers’ testimony. See, e.g., United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.
1995) (“A district court’s determination as to the credibility of a witness is virtually
unreviewable on appeal.”).

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“bunched up” in “the fatal funnel of the doorway,” so they quickly stepped into the
room, spread apart, and told Roberts to raise his hands.

       As the police approached Roberts, he lowered his hands, and the police saw a
gun on the couch. An officer pulled Roberts off the couch and put him in handcuffs.
Roberts then said something along the lines of “if you want to throw a pillow on that
gun, you can—that’s fine with me,” which one of the officers understood to mean “he
didn’t want us to take that gun, because he had just gotten out of prison.” The police
seized the “green leafy substance” and the gun, which turned out to be loaded, and
they arrested Roberts.

      Roberts appeals his resulting conviction for possessing a gun as a felon. See
18 U.S.C. § 922(g)(1). Roberts insists the evidence from the apartment, including
testimony about what he said, should have been suppressed as the fruits of an illegal
warrantless entry. The district court denied Roberts’s suppression motion on the
ground that exigent circumstances—namely, the perceived threat to the officers’
safety—obviated the need for the police to get a warrant before entering the
apartment. See, e.g., United States v. Kuenstler, 325 F.3d 1015, 1021-22 (8th Cir.
2003). We review such legal conclusions de novo, accepting the underlying factual
findings unless they are clearly erroneous. See id. at 1021.

       Roberts’s argument on appeal is that the entry could not have been justified by
safety concerns because the police “were already inside the residence at the time the
alleged exigency occurred.”4 When the door opened unexpectedly after a hard police
knock, the officers found themselves caught off-guard, isolated, and framed in an
open doorway to an apartment they thought might contain a gunman—potentially still


      4
       Roberts does not dispute the gun and marijuana were plainly visible from
inside the room, so the seizure was legal if the entry was legal. See, e.g., United
States v. Bustos-Torres, 396 F.3d 935, 944 (8th Cir. 2005).

                                         -3-
armed and dangerous—facing someone who matched what they knew about the
suspect and whom they had reason to believe might be under the influence of drugs
and liable to act unpredictably. Experienced officers confronted by such an event
would have readily realized the risk of staying where they were and reasonably could
have decided to reduce the danger by moving into the room to control the situation.5
See Kuenstler, 325 F.3d at 1021 (“The analysis . . . is an objective one ‘focusing on
what a reasonable, experienced police officer would believe.’” (quoting In re Sealed
Case 96-3167, 153 F.3d 759, 766 (D.C. Cir. 1998))).

       As Roberts points out, we have not previously considered an exigent-
circumstances case with facts quite like these. But we do not think this situation was
so much less threatening than those in our prior cases such that the officers’ concern
for their safety was unreasonable here. See, e.g., Kuenstler, 325 F.3d at 1021-22
(upholding the search of a house for additional threats after one occupant tried to flee,
another yelled and charged at police, and a third watched from the doorway); United
States v. Vance, 53 F.3d 220, 221-22 (8th Cir. 1995) (holding officers could follow
someone into his house, where the individual said he was getting his identification,
when the officers had been told there were other people and weapons inside); United
States v. McConnell, 903 F.2d 566, 569-70 (8th Cir. 1990) (accepting an officer’s
entry into a hotel room when the occupant was staying at the hotel despite living
locally, had moved from a different room at the same hotel, left a handgun in the first
room, and lied about his name and whether someone was with him); United States v.
Hill, 730 F.2d 1163, 1169-70 (8th Cir. 1984) (permitting officers’ entry into a house
to locate an occupant when the officers were going to execute a search warrant


      5
       Contrary to Roberts’s suggestion that safety concerns could not justify the
entry because the officers “left themselves exposed” through their own actions, the
exigent-circumstances exception applies as long as “the conduct of the police
preceding the exigency is reasonable”—meaning consistent with the Fourth
Amendment—even if that conduct arguably set the exigency in motion. Kentucky
v. King, 563 U.S. 452, 462 (2011).

                                          -4-
outside and saw through a glass door a gun inside the house); see also United States
v. Ball, 90 F.3d 260, 263 (8th Cir. 1996) (suggesting a reasonable officer would think
an armed suspect who ran into a house when the police approached “presented a
threat to the lives of the officers outside”).

       In short, on the facts of this case, when the apartment door unexpectedly
opened, the officers reasonably felt in danger and faced a split-second choice between
entry and retreat. We refuse to hold the officers’ only reasonable response was to
retreat. See Vance, 53 F.3d at 222 n.4 (“Law enforcement officers are not required
to avoid danger.”). Roberts’s conviction is affirmed.
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