           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                                     No. 06-31048
                                                                           September 18, 2007
                                   Summary Calender
                                                                         Charles R. Fulbruge III
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

WENDELL L. BAILEY,

                                                  Defendant-Appellant.



  Appeal from the United States Eastern District of Louisiana, New Orleans
                                No. 05-286-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*


       Wendell L. Bailey was convicted of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1). He appeals the district court’s denial of his

motion to suppress the weapons. Finding no error, we AFFIRM.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 06-31048

       Exactly one week after Hurricane Katrina, ATF agents were patrolling the

streets of New Orleans and had received reports of gunfire. Initially, the agents

heard gunfire but did not see the gunman. Subsequently, while the agents were

looking in the direction of a residence at 1833 Jo Ann Place in Algiers, they

observed a man pointing a flashlight in the sky in the direction of an overhead

helicopter. Another man appeared outside the residence. One of the males lifted

his arm above his head, and the agents saw a muzzle flash and heard a gunshot.

They also saw a helicopter flying overhead. The gunman and another individual

entered the dwelling. The agents called for the occupants to exit, and Bailey was

arrested. While conducting a protective sweep, the agents observed a box of 9

mm cartridges on a couch. An agent testified that upon being questioned, Bailey

directed them to the guns under a mattress. These guns are the subject of the

motion to suppress, which the district court denied based on exigent

circumstances. A jury found Bailey guilty of being a felon in possession of a

firearm.1

       On appeal, the parties disagree with respect to what standard of review

is applicable to the district court’s finding of exigent circumstances. Because

the district court’s finding of exigent circumstances withstands scrutiny under

either de novo or clear error review, we need not reach this contention.



       1
         The jury deadlocked as to the charge of attempt to damage or destroy an aircraft, and
the district court later dismissed that count.

                                              2
                                  No. 06-31048

      Bailey argues that the district court erred in finding exigent circumstances

to justify the warrantless search that resulted in obtaining the weapons. In

determining whether exigent circumstances existed, this Court applies the

following non-exhaustive list of factors:

      1. the degree of urgency involved and the amount of time necessary
      to obtain a warrant;

      2. the reasonable belief that contraband is about to be removed;

      3. the possibility of danger to the police officers guarding the site of
      contraband while a search warrant is sought;

      4. information indicating that the possessors of the contraband are
      aware that the police are on their trail; and

      5. the ready destructibility of the contraband and the knowledge
      that efforts to dispose of [contraband] and to escape are
      characteristic behavior of persons engaged in the [contraband]
      traffic.


United States v. Gomez-Moreno, 479 F.3d 350, 354-55 (5th Cir. 2007) (citation

omitted). In determining exigency, we “consider the appearance of the scene of

the search in the circumstances presented as it would appear to reasonable and

prudent men standing in the shoes of the officers.” United States v. Rodea, 102

F.3d 1401, 1405 (5th Cir. 1996) (internal quotations and citation omitted). Here,

the scene created by Katrina is darkness and disrupted communications due to

extended loss of power.

      Bailey contends that “there was a functioning judicial mechanism through

which the agents could have gotten a warrant.” In support of this contention, he

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relies on the global order entered by the Chief Judge of the Eastern District of

Louisiana on August 31, 2005, which continued all criminal trials for 90 days

and excluded such time from Speedy Trial Act limits. Contrary to Bailey’s

contention, we believe such a continuance indicates that the judicial system was

not functioning adequately.

      Bailey also asserts that the search could have been postponed until the

next morning. He asserts that there “was no reason to believe that the guns

would be removed, especially if two of the agents stayed at the premises instead

of returning to their encampment outside the Algiers Post Office.”

      We are convinced that the agents reasonably believed firearms would be

removed from the dwelling before a search warrant could be obtained. Further,

we reject Bailey’s suggestion that the agents should have stayed at the home

overnight. The agents reasonably believed that guarding the site until a search

warrant could be obtained placed them in further danger. Our review of the

factors indicate the district court properly found exigent circumstances in the

aftermath of Katrina sufficient to justify a warrantless search.

      AFFIRMED.




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