                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1082
                                   ___________

Randy A. Kleinholz,                     *
                                        *
             Appellant,                 * Appeal from the United States
                                        * District Court for the
      v.                                * District of Nebraska.
                                        *
United States of America,               * [PUBLISHED]
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: June 10, 2003

                                  Filed: August 6, 2003
                                   ___________

Before BOWMAN, BEAM, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

        Randy A. Kleinholz appeals from the district court's1 denial of his motion to
suppress evidence and incriminating statements that flowed from law enforcement's
initial entry into his house without a warrant. He argues his consent to the initial
entry of his home was coerced and such initial entry was not otherwise justified.
Irrespective of whether Kleinholz voluntarily consented, the initial intrusion of law



      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
enforcement fits within an exception to the warrant requirement of the Fourth
Amendment. We therefore affirm the denial of the suppression motion.

                                         I

      On November 22, 2001, Thanksgiving Day, law enforcement responded to an
anonymous tip stating a methamphetamine laboratory was located in the front
bedroom of a yellow house with a wheelchair ramp near the intersection of 33d and
T Streets in Lincoln, Nebraska. Upon responding officers drawing near Kleinholz's
house, they became aware of a chemical odor. Some of the officers suspected the
smell was that of ether. After first conducting a consensual search of Kleinholz's
neighbor's home, and discovering nothing, law enforcement focused on Kleinholz's
house; both houses had wheelchair ramps.

       Law enforcement approached Kleinholz's cream-colored house and began to
question Kleinholz and a second man, Phillip Johnson, who were both situated on the
front porch. Johnson consented to a pat-down search, which revealed marijuana and
drug paraphernalia. He was arrested and placed in an awaiting police cruiser for the
remainder of the encounter.

      Meanwhile, the conversation between Kleinholz, who is wheelchair-bound, and
the handful of officers continued for between ten and twenty minutes. During this
conversation, law enforcement forbade Kleinholz to enter his home without an
accompanying officer. Further, officers communicated their concern that the house
contained a methamphetamine lab, which was the subject of the anonymous tip and
the source of the chemical smell. Kleinholz suggested the odor was a result of his
home's plumbing failure or perhaps his oven-roasting rib dinner.

      The officers were not convinced and asked two or three times to enter and
search the home. Consent was withheld until law enforcement threatened to leave

                                        -2-
and return with a search warrant, and until Kleinholz became concerned about
burning his dinner and sought to check it. Relenting, Kleinholz said "come on in, I'll
show you the leak."

        Two officers entered the house with Kleinholz. All three moved toward the
kitchen, which was in the back of the house on the first floor. As they moved by the
front bedroom, however, the first officer signaled the second officer to look into the
room for the methamphetamine lab. The first officer and Kleinholz arrived at the
kitchen and inspected the ribs and the faulty plumbing: neither was the source of the
chemical smell, which had grown stronger with entry into the house. Meanwhile, the
second officer opened the partially-ajar front bedroom door, shined a flashlight into
it, thereby discovering the illegal lab. The officer signaled the first officer as to the
discovery, and all three individuals left the house.

      Upon leaving the house, where they had stayed only a minute or so, officers
explained they feared the lab would explode if the heat sources within the house were
not shut off. Kleinholz consented to the reentry of law enforcement for this purpose.
Next a written consent form was given to and signed by Kleinholz, consenting to a
further search of his house. Two officers entered, confirmed the earlier observation,
and returned to the porch. He was arrested and later confessed to operating a
methamphetamine lab. A team of specialists were called to the scene to dismantle the
lab.

       Kleinholz was indicted for conspiracy to manufacture methamphetamine in
violation of 21 U.S.C. §§ 841 and 846. He moved to suppress evidence obtained
during and as a result of the initial search. The district court (adopting the report and
recommendation of a magistrate judge) concluded Kleinholz consented to the search
and even had he not, exigent circumstances justified the initial house entry without
a warrant. Ultimately, Kleinholz pleaded guilty to the charge, but reserved his right



                                          -3-
to appeal the district court's denial of his motion to suppress: he now exercises the
right.

                                          II

       Kleinholz argues his consent to the initial entry of his home was coerced, but
ultimate resolution of that issue is unnecessary. Whatever might be thought about
Kleinholz's consent, exigent circumstances together with probable cause justified the
entry and search.

      Despite the protections of the Fourth Amendment, and the preference for
search warrants, a search without a warrant is legal when "justified by both probable
cause and exigent circumstances." United States v. Walsh, 299 F.3d 729, 733 (8th
Cir. 2002) (internal citation and quotation omitted). In certain narrow situations,
therefore, exigency may be substituted for a warrant, but probable cause must be
present before either a warrant or exigency will allow a search.

       "Probable cause exists when, given the totality of the circumstances, a
reasonable person could believe there is a fair probability that contraband or evidence
of a crime would be found in a particular place." United States v. Fladten, 230 F.3d
1083, 1085 (8th Cir. 2000). In the present case, several factors suggest the existence
of probable cause. Law enforcement had received information from an anonymous
informant indicating an illegal methamphetamine lab was in the front bedroom of a
house in the area of and similar to Kleinholz's. United States v. Briley, 726 F.2d
1301, 1306 (8th Cir. 1984) ("An anonymous tip from an informer may serve as a basis
for probable cause as long as its reliability is established through corroboration.").
Additionally, though neither party or the court below seems to find the fact relevant
law enforcement had just arrested Kleinholz's companion on Kleinholz's front porch
for possession of marijuana and other drug paraphernalia. Most importantly,
however, law enforcement smelled ether: a substance known to be used in the

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manufacture of methamphetamine. United States v. Francis, 327 F.3d 729, 736 (8th
Cir. 2003). The smell of ether might alone support a finding of probable cause. See
United States v. Clayton, 210 F.3d 841, 845 (8th Cir. 2000) (holding officer
"developed probable cause for a search based on his immediate perception of an odor
associated with methamphetamine production."). But certainly such an odor coupled
with other facts support a finding of probable cause. United States v. Ryan, 293 F.3d
1059, 1062 (8th Cir. 2002) (reasoning the odor of ether, coupled with a report drugs
were in the house, an officer's knowledge that the odor of ether is given off in the
manufacture of methamphetamine, and the defendant's history of drug convictions,
combined to create probable cause); United States v. Caves, 890 F.2d 87, 90-91 (8th
Cir. 1989) ("odor of an illegal drug can be highly probative in establishing probable
cause for a search."). The facts of the present case taken together indicate probable
cause existed to believe Kleinholz's front bedroom contained a methamphetamine lab.

        Due to the volatile nature of such labs, exigent circumstances justified an
immediate but limited search. Walsh, 299 F.3d at 734 ("The potential hazards of
methamphetamine manufacture are well documented, and numerous cases have
upheld limited warrantless searches by police officers who had probable cause to
believe they had uncovered an on-going methamphetamine manufacturing
operation.") (collecting and then following authority from other circuits). In Walsh,
this court upheld a limited search without a warrant where law enforcement had
probable cause to believe it had discovered a methamphetamine lab. In Walsh, like
in this case, law enforcement smelled ether. Id. The detection of this odor along with
seeing "various pieces of equipment associated with methamphetamine production
outside of a shed" led officers to conduct a brief warrantless search of the shed, which
we upheld. Id.

       In the case at bar, law enforcement entered Kleinholz's house to confirm their
suspicion a methamphetamine lab was being operated and to reduce the immediate
risks of fire and explosion posed by such a lab. Upon confirming the presence of the

                                          -5-
lab, law enforcement was further justified in reentering the house to make the lab
safe. Thus the initial entries, though without benefit of a warrant, were not
unconstitutional, and did not, therefore, taint the written consent later obtained from
Kleinholz. Besides, once law enforcement had entered the house legally, pursuant
to probable cause and exigent circumstances, they were not required to ignore the
illegal drug operation; rather, they were free to take note of and even seize anything
in "plain view." United States v. Collins, 321 F.3d 691, 694 (8th Cir. 2003) ("Under
the plain view doctrine, police may seize an object without a warrant if (1) the officer
did not violate the Fourth Amendment in arriving at the place from which the
evidence could be plainly viewed, (2) the object's incriminating character is
immediately apparent, and (3) the officer has a lawful right of access to the object
itself.") (internal quotation marks and citations omitted).

                                          III

      Accordingly, regardless of whether Kleinholz's consent was voluntary,
probable cause and exigent circumstances combined here to support the limited initial
search executed by law enforcement. Therefore, we affirm the decision below.

      BYE, Circuit Judge, Concurring.

       While joining in the per curiam opinion, I write separately to express my
frustration with how law enforcement obtained Kleinholz's consent and how the court
below sanctioned such troubling conduct.

       Whether Kleinholz voluntarily gave consent to the initial entry of his home is
a question of fact. United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001). This
court will review the district court's conclusions on such questions for clear error
only. Id. "A finding is 'clearly erroneous' when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm

                                          -6-
conviction that a mistake has been committed." United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948).

       The Fourth Amendment, made applicable to the states by the Fourteenth
Amendment, United States v. Ameling, 328 F.3d 443, 447 (8th Cir. 2003), establishes
"the right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures," and it requires probable cause for lawful
searches and seizures. U.S. CONST. amend. IV. This means, generally, to search a
private place, person, or effect, law enforcement must receive a warrant supported by
probable cause from a judicial officer. E.g., Katz v. United States, 389 U.S. 347, 357
(1967) ("searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject
only to a few specifically established and well-delineated exceptions.") (emphasis in
original) (footnotes omitted). Where one voluntarily consents to a search, however,
law enforcement needs neither warrant nor probable cause to legally execute the
search. United States v. Matlock, 415 U.S. 164, 165-66 (1974); Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973).

       It is undisputed Kleinholz consented to the entries into his house, but Kleinholz
contends his consent was not voluntary. Where a citizen later claims he or she did
not voluntarily consent to a search revealing evidence of criminal activity, the
government must show by a preponderance of the evidence, under the totality of the
circumstances, the defendant did voluntarily consent to the search to allow the
challenged evidence to survive a suppression motion. E.g., United States v. Severe,
29 F.3d 444, 446 (8th Cir. 1994). Consent is voluntary if it was "the product of an
essentially free and unconstrained choice by its maker," Bustamonte, 412 U.S. at 225,
and not "the product of duress or coercion, express or implied." Id. at 227; see also,
Florida v. Bostick, 501 U.S. 429, 434-35, (1991) ("We have stated that even when
officers have no basis for suspecting a particular individual, they may generally ask
questions of that individual; and request consent to search his or her luggage -- as

                                          -7-
long as the police do not convey a message that compliance with their requests is
required."). We have posed the relevant inquiry as: "whether the officers did
anything to affirmatively communicate to the defendant that [he or she] was not free
to terminate the encounter or to refuse the consent request." United States v.
Zamoran-Coronel, 231 F.3d 466, 469 (8th Cir. 2000).

      Some of the circumstances to be considered were outlined in United States v.
Chaidez, 906 F.2d 377, 381 (8th Cir. 1990); see also United States v. Smith, 260 F.3d
922, 924 (8th Cir. 2001) (applying the Chaidez factors). Individual characteristics are
relevant to the issue of the voluntariness of one's consent, including (1) age; (2)
general intelligence and education; (3) whether the individual was under the influence
of drugs or alcohol; (4) whether he or she was informed of the Miranda 2 rights; and
(5) whether he or she had experienced prior arrests and was thus aware of the
protections the legal system affords suspected criminals. Smith, 260 F.3d at 924.

       The environment in which the alleged consent was secured is also important;
specifically (1) the length of time one was detained; (2) whether the police threatened,
physically intimidated, or punished the suspect; (3) whether the police made promises
or misrepresentations; (4) whether the suspect was in custody or under arrest when
the consent was given; (5) whether the consent occurred in a public or a secluded
place; and (6) whether the suspect stood by silently as the search occurred. Id. "The
factors should not be applied mechanically, and no single factor is dispositive or
controlling." United States v. Bradley, 234 F.3d 363, 366 (8th Cir. 2000) (internal
citation omitted).

      After applying the Chaidez factors, the magistrate judge concluded Kleinholz
had voluntarily consented. On appeal Kleinholz draws attention to two facts he
contends illustrate the coercive nature of the encounter and that were undervalued,


      2
          Miranda v. Arizona, 384 U.S. 436, 473 (1966).

                                          -8-
ignored, or misunderstood by the court below. First, his physical condition compared
to that of the handful of officers questioning him: Kleinholz is unable to walk.
Second, and more importantly, his inability to break off the encounter and return to
his house and his Thanksgiving dinner preparation.

       It is undisputed law enforcement told Kleinholz he would not be allowed to
reenter his house to check on his dinner or to enter for any other reason without a law
enforcement escort. Thus, by allowing law enforcement into his house, he was not
voluntarily consenting to a search; rather, he was merely acquiescing to a claim of
lawful authority. See Bumper v. North Carolina, 391 U.S. 543, 550, (1968) ("Orderly
submission to law-enforcement officers who, in effect, represented to the defendant
that they had the authority to enter and search the house, against his will if necessary,
was not such consent as constituted an understanding, intentional and voluntary
waiver by the defendant of his fundamental rights under the Fourth Amendment to
the Constitution.") (internal quotation and citation omitted).

      It is inconceivable how the magistrate judge could find law enforcement did
nothing to affirmatively communicate to Kleinholz he was not "free to terminate the
encounter or to refuse the consent request" when they explicitly told him he would
not be allowed to reenter his home without allowing law enforcement to follow.
Zamoran-Coronel, 231 F.3d at 469.

        I, therefore, disagree with the district court regarding the voluntary nature of
Kleinholz's consent: more is required of law enforcement. Nonetheless, because I
agree, probable cause and exigent circumstances combine here to support the limited
initial search executed by law enforcement, I concur.




                                          -9-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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